Why the 'Dancing Baby' copyright case is just hi-tech victim shaming Silicon Valley's great triumph has been persuading people to give up their rights, and be happy to do so. And tech oligarchs aren't worried about fighting dirty to make it happen: victim shaming is now part of the arsenal. Modern technology – and in particular the miracle of the internet – has allowed billions of people to …
I have wondered why Google or Twitter threaten dire consequences and promise to make my private personal information public when filling out a DMCA form. I am sure this no accident. Having your details posted on Chilling Effects means you will attract a lot of trolls.
Victim shaming is about right.
I'm confused as to what private personal information they threaten to make public. Google's DMCA website says that Chilling Effects will remove all personal info (IE address, email, etc). I also can't find the dire consequences. It informs filers that if they misrepresent their claim they could be sued for damages which is factually true. Am I missing something?
You are quite correct.
I think this is a fine piece of journalism from Orlowski. It lays out what these f**kers are up to and why people should be concerned.
And we should be.
These guys are exactly like the NHS selling off "annonymized" patient data for study (regardless of how easily it can be de annonymized). But that also means when I say "It's our data" that also the copyright holders, some of whom are also corportions and some of which do sometimes behave like douche bags.
It's still one of the few bits of the DCMA that seems a good idea to me.
yes because we often hear of all of those pesky small people who files millions of automated DCMA take down requests that get accepted by default without any consequences of mistaken fillings.
Oh wait....
I know, lets move into a world where every single possible combination of notes/words/thoughts are held under copyright and without any of that fair use malakey.
That way nothing new can ever be created without someone else getting a cut (see the recent decision where the 'feel' of Robin Thickes Blurred Lines was enough to trigger the lawyers)
That way big corporations (and lets face it, it wont be ordinary people owning anything) can get a cut for every thing that ever happens with the usual last minute extensions to copyright terms in perpetuity.
How about two processes ... one for individuals and another for corporations/businesses that have more than 5 employees .. because the more I sit here trying to think of a one size fits all solution ... I can't think of one.
The only thing I can think of is that the harm any particular offence would have on an individual is far different from that of a corporation. eg. a corporation wouldn't suffer the emotional harm from one of its, "children," being used for sexual innuendo.
There has to be a degree of separation somewhere, rather than trying to make one law work for everything.
I don't have a good feel on how to do what you are advocating - but I think the first step is to roll back the idea that a corporation is somehow human and has the same rights (without the responsibilities).
*NOTE* This is based on American law and current legal precedent. I don't know what you Limeys have going on.
An absolutely fair point.
A corporation is not exactly going to be put off by a public outing as their details are out there already. It seems that particular action is aimed solely and squarely at the individuals who might want to issue a take-down notice and can be frightened off - so a two-tier system, one for corporations and another for private individuals should absolutely be the way to go.
Wouldn't it take 3 processes?
Process 1: Corp v Corp ie Apple v Android
Process 2: Person v Person ie Patrick Cariou vs Richard Prince
Process 3: Corp v Person ie UMG v Lenz
Then if there were three processes what would be the difference? In the case of process 3 would the person be given more leeway and more expected of the Corp since they have greater resources?
"Silicon Valley's great triumph has been persuading people to give up their rights, and be happy to do so."
Not just rights. In the New Sharecropper Economy pushed by the likes of Uber & Airbnb, the rubes also take on all of the economic & legal liability risk, usually with inadequate insurance (paid for by the rube), and do so for what is really in a complete analysis, low wages.
Here's one for the think tank. Why can't individuals pay a PRS license for their YouTube channels, and put their license code in the comments, so that the bots can check it.
That way, Google don't have to even get involved.
"Aha! I've found a match! Got you mate.... oh. You've got a PRS license code. Hang on ... ok, that matches with your channel name on the PRS database. Damn I can't screw you for a take down, or force adverts on you, 'cause you've paid through a legit channel. Bas**rd!"
Because what if:
I lock my YouTube channel down so only my family can see it and I only share videos of my kids playing.
I'm an amateur reporter and I only post videos from my own broadcasts.
I run a church and I only post videos of service.
I only post parodies.
I only post critiques/reviews.
I only post how to videos.
Because if the individual has to decide if they pay for the license then you will still have the problem of things being posted that "violate" copyright. It is pretty simple to pay for a license through ASCAP or BMI IF you know you need to. The problem is (as highlighted by the Lenz case) is 1. People don't know when they need to and 2. The MPAA/RIAA don't bother checking if it is fair use. To avoid those problems I assumed the poster who suggested a licensing for a channel meant a mandatory fee like the type you find on blank recordable media. This would ensure you could post anything you wanted and be covered. However, as I pointed out there are cases where you shouldn't have to pay.
How does the true author identify themselves in the DMCA request/demand?
Or put another way, what is to stop people with absolutely no connection with the original author from pretending to be acting on their behalf?
I assume the onus of proof rests with the complainant, yet only if their right is challenged, and perhaps here lies the reason for Google's Mr Nasty approach.
By pushing the complainants information in the face of the world, Google is getting the rest of the world to do the work of sifting out those elements that have no right to demand a DMCA.
Of course this in itself, as pointed out in the article, opens up lots of new avenues to abuse the genuine claimants, and the alternative of getting the company that makes a killing out of your content to actually put some effort into justifying its position as the Lord Chief Clacker of all things web wise is perhaps asking too much.
No. If Google isn't up to the task of policing its "service" then Google needs reinventing.
Perhaps the new Google could be 196 Googlets, one for each country, each looking after its citizens rights and ploughing back into the economy the revenues made by its citizen's creativity.
You did so well until the last paragraph... corporations don't plough anything back into the local economy unless it's pocket change or something that the PR says is worth the cash (like to a charity). Corporates want it all for themselves.
As for "citizens rights" <sic>, given the nature of privacy and data slurping, you're only right would be to give them what they want so they can profit.
"Or put another way, what is to stop people with absolutely no connection with the original author from pretending to be acting on their behalf?"
It's criminal. It's perjury. You can (and should) go to jail for it. With a DMCA takedown request, you declare under threat of perjury that you are the copyright holder or that you are representing the copyright holder. (You are allowed to be mistaken about the work though).
The content owner being victimized in the dancing baby case is not the owner of a song playing in the background of a video. It's the mother of a toddler who was forced to take down a video of her son dancing to a track you can barely hear over the noise of the video. That you could even begin to call UMG the victim in this case is utterly ridiculous.
There is nothing about the case that broadens fair use in any way. Fair use is exactly what it has always been and has never expanded past its original definition. Can you honestly say that the video in question doesn't pass the doctrine, very well defined in the law, of fair use? Just because licensing is easier these days doesn't mean that fair use should go away. The ease of getting a license has nothing whatsoever to do with why fair use exists. A win for Big Content in this particular case would have meant a massive over extension of DMCA and the erosion of fair use (which, sorry Andrew, IS a legally defined right and has been for nearly 4 decades, and existed as a matter of legal precedence for over a century before that).
EFF is very much on the side of the individual content owners in this case, whereas a win for UMG would mean that Big Content could claim ownership of a video of your kid because you forgot to turn off the radio before recording. What EFF is doing is making sure that the law can't be used frivolously. Copyright is a good thing. Copyright used to prevent other people from making brand new stuff is a bad thing. This is a case of the latter.
It's hard to feel a shred of sympathy for the "rights holders" when a huge mega corporation (that pretty much just lives to enrich themselves and a few chosen "artists" on the backs of all the other smaller artists who they regularly screw over and cheat them out of any compensation for their work, is going after some mother for a video of her kid dancing for a minute or two & there happens to be some music you can barely understand playing in the background.)
It's even more ironic that the distorted music clip in question was from the short one who should not be named, who is most famous for employing "creative" ways to shirk his contractual obligations when things didn't go his way.
The authors article is all well and good, but let's not pretend that the "rights holders" in this case are any kind of saints or are doing any kind of noble work defending the little guy. As it usually is most of the time, it is some big organization that bullies / threatens / collects licence fees from people and then does as they wish with the money and totally shafts the smaller artists & creator, who is claiming to be the "injured party" and usually it is some down and out simpleton they are beating up on.
Can't say I'm to sorry to see one group of greedy bastards getting beaten over by another group of greedy bastards. Both sides will screw over and rip off the small guy any chance they get so you might as well enjoy the show as they fight it out. Maybe letting the silicon valley guys win might actually jolt the "creative" industry to maybe figure out how to "create" again and care about the people that like their creations instead of treating them like dirt.
I really don't know this. Could you please explain why you think this is true? Could you point me to any cases where the EFF was clearly not representing the interests of the general public? (And no, this case is not it; I very much believe that they were the good guys here...).
Perhaps we do need to reclassify corporations.
The 'scales of justice' are usually stacked in their favour where lawyers can be employed in the mulltiples Vs. individuals. They don't have a vote, but the ballot boxes are stuffed in their favour when it comes to getting the government to act in their in relation to the individual.
Having just uploaded my not so favourable swipe at Google, I did a search on some other topic and would you believe it? Instead of getting back the answer, I was asked if I would like to change my search provider. WTF is going on?
The post is still awaiting moderation and I have never before been presented with a "choose your search provider page" EVER.
In my mind, this proves Google has the resources to police the internet, yet focuses all those resources in looking after its image.
If you have something to say to me Google, come out and say it. Get one of your keyboard warriors to come out and explain why you can monitor and respond to content in real-time when it concerns your image, yet to hell for everyone else?
DMCA is already being abused; broadening copyright law indiscriminately is not a silver bullet.
While the bulk of the article is useful, it doesn't really give Fair Use its due. Stealing medical articles might have received a free pass under fair use at one point, but this is a poor example of fair use. Using only this as an example misrepresents fair use pretty badly. While it appears to support the "simpler stronger copyright laws good" argument, in fact it's just another slippery slope argument. Fair use doctrine does not naturally lead to widespread copyright theft.
Well, how about this one: a takedown upheld means the channel owner ows, say, a hundred bucks to the copyright owner; a takedown overturned, however, means that the one filing it ows a hundred bucks per each employee of the copyright holder to the channel owner. Just to make things a bit more interesting for both parties...
"Ms Lenz thought that the YouTube T&Cs took care of the complicated legal stuff. But they didn't. She was granting YouTube a right to use "Let's Go Crazy", but she didn't have that right."
Ms Lenz was not intending to make commercial use of [whatever is in the clip]. YouTube, however does, albeit indirectly. The notion that ms Lenz granted YouTube the "right" to use a particular song fragment, however indirectly, when submitting her home video of a dancing toddler can only be dreamt up by a copyright lawyer.
And I bet you the lawyers involved in this years-long court ballet charge an hourly rate that would make your average banker green with envy.
Intellectual Property is based on the premise that an IP owner deserves repeated income for work done once. This income already continues past the original creator's lifespan in many cases, and would likely continue in perpetuity should some have their way. This is fundamentally unfair to those of us who only get paid once for the work we do.
The whole concept is flawed and it's hard to have any sympathy for corporations or very wealthy individuals who own much of this IP, especially after the 'ownership' of said IP was transferred (probably a mistake to allow this in the first place) from the original creator.
That's my story and I'm sticking to it.
But you had IP rights in whatever it is you create, and apparently bargained them away by agreeing that said creation is a "work for hire."
That's your choice, and presumably you're being compensated appropriately for having given up that right. Most people are more comfortable with the security of a salary or hourly rate than they are gambling that hanging on to the IP rights will pay adequately in the future. Most creative work returns nothing in future IP revenues. Ask any musician or artist. (Of course, a lucky few make a fortune, but it is only a few.)
"But you had IP rights in whatever it is you create, and apparently bargained them away"
Yeah, lemme see you "keep your copyright" in having installed a kitchen sink. Oh, you mean only enlightened people like "artists" deserve to be eternally paid for the work they once did, but not the proles...? Way cool, bro...
This post has been deleted by its author
Ask yourself why before copyright a lot was kept secret to avoid competitors could take advantage of it, and often just found in someone's papers left after his or her death. And how much was lost because papers didn't survive, or because was never written down, we don't know.
Artists had to fight against imitators and illegal copies in the old times as well.
I only hope most people disagree with the author's apparent view of fair use. It's an incredibly important doctrine for the creation of synthesized content, particularly when licensing is overly expensive or onerous, and it's a rare example of legislative progress in the public interest in the field of creative rights.
With that said, again, I really appreciate a well thought out contrarian viewpoint, and this is an excellent example of that.
Small note: victim shaming is a term I specifically associate with the treatment of rape victims. I don't particularly appreciate the author co-opting the term for his own ends, particularly when it's entirely apt. 'Victim shaming' seems only even somewhat appropriate to apply to the internet lynch mobs that inappropriately target rights-holders.
Attempting to bully other companies is simply par for the course behavior from machines designed specifically to extract as much money as possible from the economy, but with the rights (and anthropomorphism) of laws written to apply to people. (It's SO BAD here in the US that I'm not even sure of the appropriate term to refer to entered-the-world-through-a-vagina people.)
It's SO BAD here in the US that I'm not even sure of the appropriate term to refer to entered-the-world-through-a-vagina people.
First you criticise the author, and now you're taking a pop at those born through C-Section?
With that said, again, I really appreciate a well thought out contrarian viewpoint, and this is an excellent example of that.
Generally, I think Orlowski's view on anything copyright sucks, but he does do a good job of laying out his thought lines. I reach a different conclusion because I weight some of the arguments differently, but his writing is a good way to understand the opposing viewpoint.
Small note: victim shaming is a term I specifically associate with the treatment of rape victims.
Not any more, we seem to be going through a fad where everying is described as %s-shaming, whether it's fat, victim, slut or anything else. Victim-shaming is just another phrase that'll soon cease to carry the weight it once did because it's been adopted in other less serious scenarios.
....but off the point, I believe, in Lenz. The woman who posted the video is the potential victim here, of the overly broad and lopsided DMCA legislation. The music was muffled and distorted, and in no way could approach equivalence with the Rolling Stones or Bob Dylan selling out to commercial interests with high-fidelity remasterings of their backlist for adverts.
I vehemently disagree with effectively the entire content of this article. In the case stated, there's a few seconds of some song playing in the background. This does not harm the owner of the song, reduce the value of their song, and this is not a derivative work of their song. The song is not the focus of the video. The big music company is not the victim. And Chilling Effects is not there to discourage DMCA filings, it's there to discourage abusive DMCA filings that do not consider fair use, or even check if the filing is correct or not before filing it. Companies (and individuals) who file inaccurate DMCA claims on a regular basis SHOULD be named and shamed.
Expecting people to license each and every tiny bit of anything in their videos and photos sets a dangerous precedent. I could point a camera to my right to record the rain, and you think I should have to pay Judge Mathis because it's playing on the TV, pay if one of these paintings or photos hanging on the wall in the room happens to reflect off the window, probably have to pay if the design on the manhole cover on the street happens to go into view (would I pay the city or the designer of the manhole cover?), maybe I'd have to pay the designer of the houses in view, and maybe have to pay Sherman Williams or whoever since their paint is on the houses. It'd get ridiculous and unreasonable.
"Over centuries, society enshrined laws allowing the individual to own and control their stuff, creating markets."
It's never been about individuals. It started with the crown giving monopolies to publishers, not writers.
It's Disney, and record labels that own the rights to dead peoples work that push copyright now. Very few people make enough money to take control of their own stuff.
I read all your article Andrew. I don't agree. Lots of verbage, seems to me it was fair use, and quite right.
If you are "little people" and don't want your stuff coppied then don't post it on 't interwebs, youtube, twatter, etc. If you are mega-corp-scum then tough titty if someone posts a video with distortted background barely audible music by someone-formerly-known-as-something who later dis-associated himself from your company.
I just looked at Chilling Effects and it looked like that private complainants were flagged [Private].
Not that I approve of Google (the new M$ ?) but we have to keep a sense of proportion IMO.
Way it's going it makes you wonder if something like Redshirts by John scalzi could even be published without paying lots of people for licensing over use of concepts/references.
To truly appreciate how twisted and odd this can become have a look at the story of the verves bittersweet symphony licensing issues and the men at work kookaburra case.
You missed the bit where Google & C. used and kept alive in court a case which can only put the in good light to actually pursue a very different aim. They don't care about Ms. Lienz at all, they just care to enforce the idea they are not bound to any copyright because it would just cripple their business model. The case was simply a Trojan Horse.
But as usual, people dislike copyright unless it's not their own - then if something of theirs is used, they start to cry out loud... it's just like Mr. Facebook privacy is highly protected...
Andrew,
I can only imagine that you have no idea of the history or state of copyright in the United States, or you are being purposely disingenuous. I realize that you don't have an equivalent to the First Amendment over on your side of the pond so perhaps you really don't understand these things.
Because of the First Amendment, copyright is illegal. Yes, you read that correctly [go back and re-read it again if you want, I'll wait.]. Copyright is a restriction by the government on your right to expression (a.k.a. "Congress shall make no law... abridging the freedom of speech.."). Of course, the Constitution itself addresses copyright in Article I, Section 8, Clause 8 ('The Copyright clause'):
“To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.”
Since the Bill of Rights, came after (technically) the constitution itself, normally the later would over ride the former so in case of conflict, the First Amendment wins. The Supreme Court has reconciled this with a liberal application of what's commonly known as 'Fair Use'. As the court correctly stated, to UMG's dismay, it's not a defense. If a use is considered 'fair' then that use, by definition, doesn't violate the rights granted to the copyright holder.
In the United States at least, there is no concept of 'moral rights of creators'. There is no reward for 'the sweat of the brow'. There is only the reservation of certain rights to the creators of a particular expression, not the ideas behind them, in certain situations, for a limited time (yea, that last one's something of an open joke at this point). Authors, publishers, creators have no right, god given or government bestowed, to make a profit nor to control all uses of their creations. Don't like it, too bad. The only other option is to do away with copyright entirely (probably for the best, but not currently up for discussion).
In the beginning, copyright was limited to certain classes of expression (and music wasn't originally one of them). It was limited to those things that a creator specifically registered (formalities). It was limited to a certain time (until the 1976 revision that was 28 years with the option to renew for another 14 years). For most of recorded time everyday people didn't have to think about copyright as it was very unlikely that it applied to them. Don't own a printing press, or a music publishing house? You couldn't infringe upon copyright. The exceedingly few cases where you might run up against copyright were almost always covered by 'fair use'. In fact, until the enactment of the No Electronic Theft Act (a.k.a. NET Act) in 1997, it was perfectly legal to share (download/upload) books, mp3 files, and movies or television shows as long as you weren't doing it commercially. This law was passed when record companies found out they couldn't sue, or have arrested, an individual sharing music files electronically.
Unfortunately copyright has been perverted from it's original form. Copyright has been mutated from a cute little gecko into a rabid Godzilla hopped up on PCP. Copyright is now applied to every utterance or stray thought that someone fixed into any sort of tangible medium (which in the internet age means pretty much everything). It lasts more than a century in most cases. Copyright holders (mostly corporations) believe that they have a government granted right to demand payment for any and all uses of any work that they believe they have rights to. This doesn't even include the individuals who abuse copyright as a mean to limit competition or censor content (the latter you seem to wholeheartedly endorse in your article).
In the modern era, copyright maximalists would have you believe that if you're not paying then, your violating their rights multiple times with nearly anything you do. You seem to be of the opinion that they are correct. That organizations such as the EFF have some semi secret agenda to collude with Silicon Valley corporations to convert innocent users into virtual share cropping slaves. Most people don't own enough aluminum foil to make that make sense. The solution isn't making licensing agreements easier to execute or more frictionless to apply. It's for copyright holders to get a clue and stop harassing creators. It's telling how you so easily you dismissed the rights of the actual creator when you wrote;
"Nor did the takedown cause any harm to Ms Lenz."
Sure it did, someone else removed her work when they had no legal right to do so. You seem so focused on the rights of UMG, which didn't actually create anything, and Google, which provided the forum where Ms Lenz could publish her work, that you give no thought to those people copyright was designed to encourage, you know the actual creators. You spend hundreds of words claiming EFF is working with tech companies to enslave creators in order to defend a publishing company's right to enslave creators. From where I sit, the only one thinking about the actual creators is the EFF.
Of course, having spent the last 50 years getting fat on selling/licensing other people's content, I can see why certain companies wouldn't want that gravy train to end. That doesn't make it right.
There is NO inherent property right in an expression. If anything copyright infringes in actual honest to god physical property rights. If I have bought a book, or a record, or a DVD, then I have an actual right to that property. I can shred it, burn it, play it, read it, give it to my dog. If I have a pile of blank pages, a hard drive, a DVD-R I have the right to write whatever words I want on that paper, rearrange the bits on that hard drive, burn whatever pattern of pits onto that DVD-R I want. I own it, I have the right to do what I want with my actual property. The only thing stopping me, the only thing infringing or abridging my property right is copyright. It says that I am not allowed to do what I want with something I own in (and this is important so pay attention) some cases.
So, copyright isn't sacred, not every use is covered by it, there is no such thing as a property right in an expression, and creators aren't entitled to be paid whenever a creation is used. Music publishers aren't creators and keeping them from extracting payments from grandmothers is a noble cause. If a theater opens it doors to whomever wants to perform and then chooses to charge advertisers put up ads on the walls (what Google is doing with YouTube) it doesn't make them modern day plantation owners and creators modern day share croppers (or slaves). Finally organizations like the EFF that choose to do pro bono work defending poor creators from corporations making questionable uses of the law to silence them isn't part of some great conspiracy with Silicon Valley.
Copyright was supposed to incentivize the creation of works for the public good. The way it's being used now just risks swallowing up our shared culture.
I'm sorry, but this is extremely factually erroneous.In the first instance, the 1st Amendment does not 'trump' copyright in any way shape or form; both are intended to protect IP creators and rights owners; from the government, in the former case and from the unscrupulous in the latter. Your purchase of a book entitles you to a defined set of rights; you can read it, loan it, quote it or burn it, and that's about all. You do not then own the content any more than using Google means you own Google.The courts have ruled and the congress has legislated that there are inherent rights in an expression, as soon as it's in a fixed form or medium; THAT is the law of the land.
Andrew,
As someone who understands something about the automated processes, conducted by third parties, that generate the vast bulk of DMCA takedown notices, I can tell you that this case is going to be much ado about nothing, despite UMG's grousing to the contrary. They'll just have their copyright monitoring agencies insert some additional boilerplate language into their DMCA notice templates that makes some mention of non-fair use. Even then, the notice will only be called into question if -- as was the case in Lenz -- it is challenged on validity grounds. 99.999% of DMCA notices never reach that stage.
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