I’ve been listening to a fairly new podcast created by Chris Matthieu, the founder of Numly and Jonathan Bailey, writer of the blog Plagiarism Today. In their podcast, titled, the Copyright 2.0 show, they discuss many copyright and intellectual property issues that have made recent headlines. What’s more, links to all news stories they discuss are made available through a del.icio.us page.
The podcast is fairly low-key and conversational. Both Chris and Jonathan stress that they are not lawyers and are not offering advice on copyright law, they are examining copyright in this era of Web 2.0 and digital information.
You can hear the podcast by clicking on the “Play” button on the player below. There are several shows to choose from.
Seth Godin, author of Permission Marketing, Purple Cow, and a ton of really great books on successful marketing, wrongly recommends that presenters should include music from their personal CD collections in their public PowerPoint presentations.
The blog post entitled Really Bad PowerPoint, offers five rules to create amazing PowerPoint presentations. Rule number four states…
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Sound effects can be used a few times per presentation, but never use the sound effects that are built in to the program. Instead, rip sounds and music from CDs and leverage the Proustian effect this can have. If people start bouncing up and down to the Grateful Dead, you’ve kept them from falling asleep, and you’ve reminded them that this isn’t a typical meeting you’re running.
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You will breaking copyright law if you give a PowerPoint presentation following Seth’s advice here. Unfortunately, you cannot just rip your personal CD collection and attach those tracks to your slides. When you purchase a CD you are not licensed to use the music for anything other than your personal enjoyment. To use music in a commercial vein, you need to obtain permission from the music’s publisher and the recording company (more about the music licensing process).
This shows that even a savvy guy like Seth Godin can be fuzzy about copyright laws. It makes me wonder how often this practice goes on in corporate America. How often have you seen a PowerPoint presentation accompanied by music that the presenter ripped from his/her CD library?
Royalty Free Music companies like UniqueTracks offer fast and easy music licensing to media producers who in turn, integrate the music into their DVDs, videos, podcasts, radio and TV advertising, Flash and Powerpoint presentations and music-on-hold programming.
It’s a compliment, I know. Over the past year I’ve received several inquiries from budding songwriters seeking to use our royalty free background music as accompaniment for their words. I got a phone call just now from a songwriter asking if she could use our Extreme Metal Mayhem disk and sing her own words and melodies over the tracks. It is always hard to tell these folks that this is not the intention of our production music, that we cannot license it to be used in this way.
The reason we don’t license music this way has to do with copyright. All of UniqueTracks’ music compositions are copyrighted and owned by one of our publishing companies. The recording itself is copyrighted and owned by UniqueTracks. In other words, the music has already been published. If you were to add vocals to the exisiting music, you would be creating a different musical work which would need its own copyright and that would involve sharing publishing rights and other legalities.
I’m always surprised when I receive these calls because it just never occurred to me that this could be a possible use of our music. When I was young and starting to write music, it never occurred to me to take an existing recording and write my own words to it and then call that a song I’d written. But in today’s world of digital sampling, peer-to-peer file sharing music sites and loops software like Acid and Garageband, where you take small pre-recorded snippets of music and combine them into a track, it’s easy to see how some young people, eager to get started with their musical careers, become confused about what songwriting entails.
Responding to the suit, Google’s general counsel, Kent Walker, said via email that “these suits simply misunderstand the (DMCA), which balances the rights of copyright holders against the need to protect Internet communications. As a result, they threaten the way people legitimately exchange information.”
It appears that defining YouTube as a “service provider” under DMCA regulations will be Google/YouTube’s main defense in these copyright infringement cases. But will a judge and jury accept that YouTube can be defined as a mere service provider under DMCA parameters? The DMCA (Digital Millennium Copyright Act), which was passed in 1998 under President Clinton, relieves ISPs or web hosts of liability if one of their hosted sites violates copyright law. Under DMCA, as long as the ISP immediately removes the illegal content and in some cases terminates the offending sites account, then the ISP is not liable for the actions of the hosted site.
When YouTube’s CEO Chad Hurley was asked about YouTube’s copyright violations by New Jersey Republican, Rep. Mike Ferguson at a May 10th hearing on Capitol Hill, Hurley defended the site’s practices as in compliance with the Digital Millennium Copyright Act.
I believe, as others do, that YouTube is misapplying the DMCA. Under their interpretation the burden is the copyright holders alone. The copyright holder has to maintain constant vigilance against infringement. While this may be true to some degree, YouTube is also basically saying here that they believe no law is broken as long as they receive no notice that a specific video is violating copyright. What if the copyright holder is unaware of the infringement and does not ask for removal, is there then no liability?
The truth is, copyright law is broken as soon as one party uses the copyrighted work of another without permission. Further, the law is broken, not at the moment the copyright holder becomes aware of the infringement, the law is broken the moment the work was used. Trying to wrap this simple statement of copyright law into a provision of the DMCA, complicating it with so called “take-down notices” and filtering software, though beneficial to YouTube, is, in my opinion, not going to fly at a copyright infringement trial.
Google’s Kent Walker interprets the DMCA to say that the exchange of information over the Internet and the need to “protect Internet communications” (not quite sure what that means?) is equally as important as upholding the rights of copyright holders. I don’t believe the DMCA was made law for this reason. It sought to relieve ISPs of liability if, say, one of their sites uploaded a hacked version of Microsoft Word. I don’t think the legislators in 1998 ever envisioned the DMCA being used to offer coverage for a company that freely broadcasts videos that they have no permission to offer.
The New York Times reports that Myspace, faced with possible legal action, has begun offering filtering technology that will the help prevent copyrighted videos from being uploaded and re-uploaded to the site. The new technology is called “Take Down Stay Down” and was developed by Audible Magic.
The Times reports that “copyright owners [will] have access to Take Down Stay Down free of charge. If the social-networking service receives a takedown notice regarding a copyrighted clip hosted through its MySpace Videos hosting service, MySpace’s new feature will take a “digital fingerprint” of the video and add it to a copyright filter that blocks the content from being uploaded again. “(It’s) the ability to have a piece of content imprinted and put in a database so we can identify it,” said Vance Ikezoye, CEO of Audible Magic.”
Similar to YouTube’s upcoming “Claim Your Content” filtering technology, Myspace has now done something concrete to contend with the unauthorized uploading of copyrighted video by its members.
The first copyright infringement suit against YouTube is coming to trial. The case was brought last July by Robert Tur, a helicopter pilot/journalist known for his famous footage of O.J Simpson’s low-speed Ford Bronco chase in 1994 and the brick attack on Reginald Denny during the Los Angeles riot of 1992. It is exactly this footage that is at the heart of Mr. Tur’s lawsuit against YouTube. The suit alleges hundreds of copyright infringements and hundreds of illegal downloads through the YouTube site.
The 27 page pdf transcript successfully frames the YouTube copyright infringement issue looking at remedies such as DMCA takedown notices and filtering technology.
The panel includes Donald Verrilli, a partner at Jenner & Block, the law firm that brought the suit by Viacom against YouTube and Google. Read his comments to see a glimpse of Viacom’s legal strategy. He rejects YouTube’s DMCA defense saying “And I don’t think we are getting any serious dispute from YouTube about whether this is infringing activity. After all, when these DMCA notices go to YouTube, YouTube does pull the works down… It’s not like this is a real fight about whether there is some great level of fair use or non-infringment use going on here.”
Along with Verrilli and moderator DeJong, the other panelists are Solveg Singleton, a senior adjunct fellow at The Progress & Freedom Foundation, Christian Dawson, of Servint Internet Services (in the discussion he gives the ISP side of the infringement debate) and William Rosenblatt, a recognized authority on digital media technologies.
A great discussion with very informative panelists.
The New York Times reports that Google is not interested in settling the copyright infringement suit brought by Viacom. They want a jury trial. Google is relying on the “safe harbor” provisions of the Digital Millennium Copyright Act (DMCA) which says essentially that Internet service providers, like ISPs or web hosts, are not liable for the copyrighted material uploaded by their subscribers as long as the service providers promptly remove the material once asked to do so by the copyright holder.
“This response ignores the most important fact of the suit, which is that YouTube does not qualify for safe harbor protection under the D.M.C.A.,” Viacom said. “It is obvious that YouTube has knowledge of infringing material on their site, and they are profiting from it.”
This story sparked over 80 comments on TechCrunch. One of those comments, by a poster name Raj, frames the issue very well.
“Ultimately, the even bigger issue that may arise from the ViaGoog lawsuit is whether DMCA may need to be re-visited to better reflect appropriate use of copyrighted material. The way it is written now, DMCA is being interpreted quite loosely by firms such as Google. DMCA was written to protect copyrighted material from inappropriate use but it seems in reality that firms which interpret it loosely are using it as a protection in a sense to get away with leveraging unconsented content for profit without properly compensating content owners for the material being used. The people who own/create content tend to get [angry] when others utilize their content without consent. Google has gone one step further by monetizing this material by displaying ads next to the video content in question. It will come down to which firm’s high priced lawyers can make a better case about DMCA compliance/non-compliance.”
I believe this case will come down to the court’s interpretation of DMCA and whether YouTube can successfully claim they are just a “service provider”.
Personally I think they are more than just a service provider. The Digital Millennium Copyright Act became law in 1998 under President Clinton. Back then it was intended to give ISPs some protection from liability if one of their hosted sites uploaded copyrighted content - like say - hacked versions of Microsoft Word.
But YouTube is more than a host - it tags all of its content, there are cross-referenced links to similar content. I can view a bootleg copy of a Rolling Stones performance and the site will show me tags for other similar bootleg Stones videos and it will then also offer linked recommendations to view similar bootlegs from Bob Marley for example. In other words, YouTube is actively engaged with its content, its not just sitting there as a mere host. There is a database in place that aggregates the content and offers users its results.
At some point in 2005 the folks at YouTube made a decision to allow the uploading of copyrighted material to the site. That decision led to the immense popularity of the site and an eventual $1 billion windfall. Now that decision will have its day in court.
Revenue sharing is indeed coming to YouTube. Red Herring Magazine says YouTube will begin experimenting with pre-roll and post-roll video ads this summer.
Suzie Reider, head of advertising for YouTube, told an audience at the Ad:Tech conference in San Francisco last week that, “we’re looking at executions like a very quick little intro preceding a video, then the video, then a commercial execution on the backside of the content.”
The revenues will be shared with YouTube’s “premium” content creators. In other words, not every video on the site will have advertising attached and not everyone who has uploaded a video will partake in revenues generated by the ads.
Sharing revenue with major content creators is a big step towards solving part of the copyright infringement problem for Google and YouTube. Another problem, that of broadcasting content without the permission of the copyright holder, is being addressed by technology like the new Claim Your Content filter that is supposedly close to being launched on the site.
