On June 2nd, the judge in the copyright infringement case Yoko Ono brought against the creators of the film “Expelled” for their use of John Lennon’s song Imagine has ruled in favor of the filmmakers based on a the “fair use” doctrine.
U.S. District Judge Sidney Stein rule that “the doctrine provides that the fair use of a copyrighted work for purposes of criticism and commentary is not an infringement of copyright.”.
You can read the judges entire decision here. Those interested in the fair use doctrine should take the time to read the judges opinion because he very thoughtfully describes and then rules on each of the criteria that make up fair use.
The Purpose and Character of the Use
The Nature of the Copyrighted Work
The Amount and Substantiality of the Portion Used in Relation to the Copyrighted Work as a Whole
The Effect of the Use Upon the Potential Market for or Value of the Copyrighted Work
The judge’s decision seemed mainly to rest on a subsection of “The Purpose and Character of the Use”, namely Transformative Use. Here is the ruling.
ii. Transformative Use
A work is transformative if it does not “merely supersede[] the objects of the original
creation” but “instead adds something new, with a further purpose or different character, altering the first with new expression, meaning, or message.” Although transformative use “is not absolutely necessary for a finding of fair use, the goal of copyright, to promote science and the arts, is generally furthered by the creation of transformative works.” Thus, transformative works “lie at the heart of the fair use doctrine’s guarantee of breathing space within the confines of copyright.”
There is a strong presumption that this factor favors a finding of fair use where the allegedly infringing work can be characterized as involving one of the purposes enumerated in 17 U.S.C. § 107: “criticism, comment, news reporting, teaching . . ., scholarship, or research.”
Defendants’ use is transformative because the movie incorporates an excerpt of “Imagine” for purposes of criticism and commentary. The filmmakers selected two lines of the song that they believe envision a world without religion: “Nothing to kill or die for/ And no religion too.” As one of the producers of “Expelled” explains, the filmmakers paired these lyrics and the accompanying music to a sequence of images that “provide a layered criticism and commentary of the song.” The Cold War-era images of marching soldiers, followed by the image of Stalin, express the filmmakers’ view that the song’s secular utopian vision “cannot be maintained without realization in a politicized form” and that the form it will ultimately take is dictatorship. The movie thus uses the excerpt of “Imagine” to criticize what the filmmakers see as the naïveté of John Lennon’s views.
Conclusion Regarding Fair Use
The balance of factors clearly favors a finding of fair use. Defendants’ use of “Imagine” is transformative because their purpose is to criticize the song’s message. Moreover, the amount and substantiality of the portion used is reasonable in light of defendants’ purpose. Although “Imagine,” as a creative work, is at the core of copyright protection, and defendants’ use of the song is at least partially commercial in nature, the weight of these factors against a finding of fair use is limited given that defendants’ use is transformative. Finally, plaintiffs have not shown that defendants’ use will usurp the market for licensing the song for non-transformative purposes. In sum, allowing defendants’ use would better serve “the copyright law’s goal of promoting the Progress of Science and useful Arts . . . than [would] preventing it.”
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Ono’s position had been that she had the right to control use of the song by reviewing and choosing licenses. She also had the right to reject uses of the song. She brought the suit because she believe the filmmakers had “looted her of the ability to do so”.
The ruling against the ISP Scarlet (formerly Tiscali) was aimed mostly at P2P networks. The judge said that ISPs have the technical means at their disposal to either block or filter copyright-infringing material on P2P networks.
IFPI Chairman and CEO John Kennedy said: “This is an extremely significant ruling which bears out exactly what we have been saying for the last two years - that the internet’s gatekeepers, the ISPs, have a responsibility to help control copyright-infringing traffic on their networks. The court has confirmed that the ISPs have both a legal responsibility and the technical means to tackle piracy. This is a decision that we hope will set the mould for government policy and for courts in other countries in Europe and around the world.
The ruling may be bad news for YouTube, faced as it is with several copyright-infringement lawsuits. This case says that ISPs definitely have some responsibility or obligation for the content that is displayed across their networks. YouTube has argued that it can’t know everything on its site, that it removes content once a DMCA takedown notice is served. However if a notice is never served, then infringing material stays. The Belgian ruling says that, in its purview, YouTube does bear responsibilty for the content it serves.
As so many have now said, the copyright infringement cases against YouTube are going to come down to this - Is YouTube protected by the DMCA?.
Here are excerpts of her reasoning and decision… I find it fascinating to see this play out, for a quick synopsis, read her final paragraph.
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United States Disctrict Court
Central District of California
Robert Tur d/b/a Los Angeles News Service (Plaintiff)
vs
YouTube, Inc. (Defendant)
YouTube’s Motion
YouTube’s ultimate eligibility for “safe harbor” protection depends upon whether YouTube can prove that it satisfies certain threshold elements common to all of the safe harbor provisions.
YouTube must prove that:
1. it has adopted and reasonably implemented a termination policy for subscribers and account holders who are repeat infringers,
2. accommodates and does not interfere with “standard technical measures” that copyright owners use to protect their works,
3. its infringement is “by reason of the storage at the direction of a user of material that resides on a system or network controlled or operated by or for the service provider”,
4. it lacked actual knowledge of the infringing material or was not aware of facts or circumstances from which infringing activity was apparent on its system or network and/or acted expeditiously to remove or disable access to the material upon obtaining such knowledge or awareness,
5. it did “not receive a financial benefit directly attributable to the infringing activity,” if it had “the right and ability to control such activity”,
6. it responded expeditiously to remove or disable access to infringing material upon notification from the copyright owner, and
7. it has properly designated an agent to receive such notification.
YouTube maintains it does not receive a financial benefit directly attributable to the allegedly infringing activity and that it does not have the right or ability to control said activity. As the statute makes clear, a provider’s receipt of a financial benefit is only implicated where the provider also “has the right and ability to control the infringing activity”.
As such, if YouTube does not have the right and ability to control the alleged infringing activity, the Court need not engage in the “financial benefit analysis.”
The “right and ability to control” infringing activity, as the concept is used in the DMCA, has been held to mean “something more” than just the ability of a service provider to remove or block access to materials posted on its website or stored in its system. Rather, the requirement presupposes some antecedent ability to limit or filter copyrighted material.
There is insufficient evidence regarding YouTube’s knowledge and ability to exercise control over the infringing activity on its site. There is clearly a significant amount of maintenance and management that YouTube exerts over its website, but the nature and extent of that management is unclear. YouTube also asserts that while it is able to remove clips once they have been uploaded and flagged as infringing, its system does not have the technical capabilities needed to detect and prescreen allegedly infringing videotapes. However, there is insufficient evidence before the Court concerning the process undertaken by YouTube from the time a user submits a video clip to the point of display on the YouTube website. Thus, there is insufficient evidence from which the Court can determine YouTube’s right and ability to control the infringing activity.
Conclusion
Accordingly, the Court DENIES YouTube’s motion
June 20, 2007
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Thus, the great debate is layed out. What makes it difficult is that clearly YouTube is in compliance with some safe harbor aspects of DMCA. If you look at the 7 provisions, as stated by Judge Cooper, I think YouTube is in compliance with 1,2,3,7 and maybe 6 (though that can be argued). Where YouTube is not in compliance, to me, and this is the main infringment argument, is provision 4 and 5.
4) YouTube lacked knowledge of the infringing material and
5) YouTube did not receive financial benefit from the infringing material.
That part of the DMCA case will be hard for YouTube to make.
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.
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.
I’ve been watching with great interest how YouTube handles accusations that it knowingly hosts and broadcasts copyrighted material. It now seems that Google, which acquired YouTube in November of 2006, is close to releasing technology that will help eliminate video uploads which violate intellectual property laws. Claim Your Content is Google’s name for filtering technology that will give content providers and publishers an easy way to alert YouTube that copyrighted material has been uploaded to its site.
I don’t think there’s any question that YouTube built its vast community, and its brand, while knowingly broadcasting copyrighted material. Now, under Google’s dominion, the site is rapidly making attempts to satisfy copyright regulations.
Going forward with revenue sharing seems like the smartest way out of the copyright problem. However, will major media companies like Viacom seek compensation for past broadcasting of their content - broadcasting which made YouTube one of the top destinations on the Internet and that led Google to purchase the company for 1 billion dollars?
By October of 2006, before Google acquired it, an estimated 90 percent of the more than 100 million videos watched daily on YouTube violated copyright laws, according to Josh Bernoff of Forrester Research.
I’m sure Google/YouTube will work out revenue sharing with its major content providers going forward. The questions to me are:
Will they compensate (or be forced, through the courts, to compensate) for that initial decision to broadcast copyrighted material in the first place?
How will they compensate for that initial decision to broadcast copyrighted material?
Can you create a business that essentially gives everyone else’s products away, and then sell it to a megacorp for $1 billion, and not pay some legal penalty?
Follow Up: This article from the Washington Post, published on March 24, 2007 Our Case Against YouTube outlines Viacom’s case against YouTube. It was written by Michael Fricklas, general council for Viacom.
