September Update: Standing Up To Content Bullies

 

 


New Media Rights



New Media Rights has made a name for itself standing up to content bullies, and we've done it once again this month.  After you check out the latest below, help us take our fight against content bullying to SXSW by voting for our panel "Stand Up To Content Bullies, Know Your Copy Rights!" on the SXSW panel picker. Voting ends September 6 so vote now!


New Media Rights fights content bullies yet again!
Media Literacy Project is an Albuquerque, New Mexico based nonprofit.  Through education and grassroots campaigns, Media Literacy Project works to help people become “critical media consumers and engaged media justice advocates who deconstruct media, inform media policy, and create media that reflect their lived experience.”

Sometimes government or corporate interests don’t appreciate their criticism.  Recently, New Media Rights stepped in and helped ensure they were not unfairly silenced.

This summer, Media Literacy Project shared their criticisms of a number of health related advertisement campaigns by city governments in the Midwest publicly on their website.  The criticism included a written article analyzing the original images, as well as a counter-advertisement critical of the ad campaigns.  Unfortunately, rather than respect MLP’s right to share their criticisms, a representative of the Chicago Department of Health contacted MLP and requested that they remove their criticisms and related images.  The story is an important lesson in excessive enforcement, because of the three legal reasons given, none were legitimate.  

New Media Rights intervened, and helped MLP let the Department of Health know a) the department wasn’t even the owners of the work they were trying to enforce, b) this was a textbook example of fair use, and c) their claims regarding an obscure section of copyright law known as VARA were baseless. 

The result?  A win for free speech and your right to criticize the media around you!  Read the whole story in MLP's own words here!

New Media Rights leads Broadband Working Group at the FCC!
Art Neill, New Media Rights Executive Director, has been appointed co-chair of the FCC Consumer Advisory Committee's Broadband Working Group.  The Working Group develops recommendations to the FCC surrounding broadband policy.  Right now, the Broadband Working Group is focused on improving oversight on the implementation of the National Broadband Plan, encouraging access and affordability of broadband, improving complaint reporting on broadband issues, and commenting on proposed revisions to the E-rate / ConnectEd programs that ensures our schools and libraries can provide citizens with high quality broadband access.

Help send NMR to SXSW!
Please vote for NMR's panel "Stand Up To Content Bullies, Know Your Copy Rights!" on the SXSW panel picker. Not only will we provide SXSW audiences with a great overview of copyright law but remix artist Jonathan McIntosh will join us as our special guest creator. Who better to talk about standing up to content bullies than someone who's actually done it! Voting ends September 6th so please vote soon!

City of San Diego Awards NMR a Citywide Small Business Enhancement Program Grant!
New Media Rights is proud to announce that for the second year in a row, the City of San Diego Office of Small Business has awarded New Media Rights a Citywide Small Business Enhancement Program grant. The grant will support our free and low cost legal services for local tech and media startups. According to the members of the panel who reviewed New Media Rights’ application, New Media Rights is an “[i]mportant, unique, cutting-edge, and much-needed program and services to be offered to technology and media-related small business in the city of San Diego.” New Media Rights received a perfect score on the grant application, and will receive $23,800.00 in funding!  You can join the City of San Diego in supporting legal services for creators by donating now!

New "Services We Offer" Pages!
New Media Rights often get asked who we help and what services we provide. So we've created a page with links for all the different types of creators that explain in detail the kind of services we provide for each type of creator. By no means is it an all inclusive list. We work with so many creators and innovators it’s entirely possible that some of the types of projects we could help with don't even exist yet!


New Media Rights meets with Ukrainian journalists delegation about government transparency and access to information!

New Media Rights recently met with journalists and media entrepreneurs from the Ukraine as part of an annual exchange program through the San Diego Diplomacy Council and the U.S. State Department. The program is focused on helping journalists from other countries learn about government transparency and access to information in the United States.   New Media Rights shared some of the work we do with journalists in the US, and the journalists were kind enough to share some of their amazing stories about dealing with legal issues associated with journalism in the Ukraine.

Upcoming events
We've been presenting workshops and attending events like FilmCon, GamerCon, and others all summer long.  Here's some more events coming up this Fall!

Free Legal consultations for 3D Printing
New Media Rights in partnership with FAB LAB SD and Ansir Innovation center present an evening of one-on-one short legal advice sessions for 3D printer entrepreneurs and enthusiasts. Join us at Ansir Innovation Center on 9/19/13 from 4-8PM. While your waiting for your session mix an mingle with other entrepreneurs and enthusiasts. All spots are currently full but a wait list is available here.

Digitial Design Showdown
Digital Design Showdown from 7-10pm on 9/20 is a fast paced design competition where participants go head to head with other San Diego designers. Each person gets 20 minutes to create a piece of art work around a theme or image in 2D, 3D, and Animation competition categories. Sign up to compete for bragging rights or come to watch the competition.

Copyrights And Copywrongs For Internet Content
San Diego Python Users, Sandiegojs and SD Game Art and Design Meetup Groups will be hosting New Media Rights Staff Attorney Teri Karobonik and California Western School of Law 3L Lauren Brady to talk about copyright for video game development. Join us at Ansir Innovation Center on 9/26/13 at 7PM. For more information check out the Meetup page here!

How can you support independent creators and artists?

Please remember New Media Rights is an independently funded nonprofit program and relies on the support of individuals like you to provide free and low cost legal services to internet users and creators.

We accomplish a great deal on a modest budget, so any donation makes a huge impact for us.

Donate now to support legal services and advocacy for internet users and creators by clicking here.

Please also make sure to connect with New Media Rights on
 Twitter, Facebook, and YouTube.

 
Thanks again for being part of the New Media Rights community. Keep an eye out as our future battles and work on behalf of internet users and independent creators continues.

All the best,

The New Media Rights team

 

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Help send New Media Rights to SXSW!

SXSW movie from New Media Rights on Vimeo

UPDATE: Voting for SXSW is now closed. Thank you so much for your votes!

New Media Rights wants to teach you how to “Stand Up To Content Bullies, Know Your Copy Rights” at SXSW Interactive this year. We know copyright laws are complicated, and they're often the reason why your videos, mobile apps, and other content may get taken down. "Fair use" is complicated, but it's often the reason you can get your content back up. Our panel will teach real-world best practices to use the law, Youtube's rules, and practical steps to fight back against content bullies.

Not only will we provide SXSW audiences with a great best practices but pop culture hacker Jonathan Mcintosh will join us as our special guest creator.  You might remember Jonathan from when we helped him get his video Buffy vs Edward: Twilight Remixed put back up on YouTube after it was taken down by content bullies. And really, who better to talk about standing up to content bullies than someone who's actually done it and won!

But we can’t get to SXSW without your support! A public vote accounts for 30% of the decision making process at SXSW so we need your vote! Please vote for NMR’s panel here.  And feel free to share our panel with your friends too, every vote counts!  

Value legal services for internet users and creators?  Support them.

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New Media Rights receives grant from The City Of San Diego Office of Small Business

New Media Rights is proud to announce that for the second year in a row, the City of San Diego Office of Small Business has awarded New Media Rights a Citywide Small Business Enhancement Program grant. The grant will support our free and low cost legal services for local tech and media startups.

According to the members of the panel who reviewed New Media Rights’ application, New Media Rights is an “[i]mportant, unique, cutting-edge, and much-needed program and services to be offered to technology and media-related small business in the city of San Diego.” They also called New Media Rights a, “great program and support available for this sector of the small business community.”

New Media Rights received a perfect score on the grant application, and will receive $23,800.00 in funding.

"We're proud to partner with the City of San Diego's Office of Small Business to provide critical legal services to San Diego's technology and creative communities.  We're grateful that the forward thinking leadership at the Office of Small Business has recognized that our services launch creative projects and job-creating business ideas that may die on the vine or be the victim of improper censorship without these services," said Executive Director Art Neill.

New Media Rights provides free and low-cost one-to-one legal assistance to internet users, artists, non-profits, startups, and others who create and share their work online. People contact New Media Rights when they need direct assistance in areas like copyright, trademark, internet and media law.

In addition to helping individual internet users and tech startups, New Media Rights focuses on assisting organizations that provide better access to public information; greater business and government accountability; or unique new perspectives to the cultural landscape. New Media Rights is an independently funded program of California Western School of Law.

For questions about New Media Rights, please contact support@newmediarights.org.

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The Public Domain. Now available for only $165 an hour!- August 2013 Newsletter


New Media Rights



Its been a busy a summer at New Media Rights, but we're not done yet! When we weren't chatting with our post apocalyptic cyborg friends about the finer points of copyright law at FilmCon (see below), we've been providing creators and innovators with critical legal services.  Here's the latest.  




The Public Domain.  Available for only $165 an hour.
TechDirt picked up NMR's most recent blog, "The Public Domain, Now Available at only 165 an hour*".  We want to call attention to the difficulty creators face when trying identify the public domain status of certain works created after 1923.  Right now your best hope is often paying the Copyright Office $165 an hour to look through its paper records.  We hope this will spur discussion about the importance of digitizing Copyright Office records.  It's also a reminder that digitization and modernization of Copyright Office records should be part of any larger copyright reform efforts.


New Media Rights at the FCC
Executive Director Art Neill will head to Washington D.C. this week to represent the rights of consumers and independent creators at the FCC Consumer Advisory Committee!  Art was recently appointed as the Co-chair of the Broadband Working Group for the FCC Consumer Advisory Committee.  This meeting will cover critical issues such as the IP transition from copper lines to internet protocols for communications services, the FCC's current education initiatives regarding broadband adoption and digital literacy as well as programs aiming to get critical broadband services into schools and libraries such as E-Rate and ConnectED.

Jonathan Mcintosh joins the NMR Board!


You may remember Jonathan from when we helped him fight back against the major studio that took down his mashup video “Buffy vs Edward: Twilight Remixed”. We're now happy to welcome Jonathan Mcintosh to our advisory board. Check out his bio here.

Help send NMR to SXSW!
SXSW Interactive is an annual conference Austin, Texas featuring cutting-edge technology and digital creativity over five days of presentations from some of the brightest minds in new media and technology. We'd like to be among those brightest minds at this years SXSW, but we can't do it without your help!

Starting August 19th, please vote for NMR's panel "Stand Up To Content Bullies, Know Your Copy Rights!" on the SXSW panel picker. Not only will we provide SXSW audiences with a great overview of copyright law but Jonathan Mcintosh will join us as our special guest creator. Who better to talk about standing up to content bullies than someone who's actually done it!

Thank you to our summer interns!

We absolutely can't do the work we do without our amazing crew of legal interns.  A big thank you to this summer's NMR interns. Jordan Kohler, Lauren Brady, Marlena Balderas, Matt Prellberg and Marko Radisavljevic!
(Back L-R)Jordan Kohler, Lauren Brady, Marlena Balderas, Matt Prellberg.
(Front L-R)Marko Radisavljevic, Art Neill, Teri Karobonik.

We're looking for a few new legal interns!
Are you a law student located in San Diego? Do you think you have what it takes to join the NMR legal team this fall? If so, check out our job description and apply today.

New Video Playlists Resource Page!
The NMR website has all kinds of guides and videos to help artists and creators. We're happy to announce that we've created a video playlist resource page with helpful playlists to help you learn about important topics such as copyright law, game development, mobile app development and smartphone privacy.

Upcoming Events

We've been presenting workshops and attending events like FilmCon, GamerCon, and others all summer long.  Here's some more events coming up THIS week!

VidCon
Come meet our new Staff Attorney Teri at VidCon in Anaheim, CA! VidCon has established itself as a premier gathering of people who make online video, whether they're just starting, or have been doing it for years. VidCon will be held August 1-3 in Anaheim, CA. 

Politifest
Politifest is a family-friendly festival featuring community booths, activities, music and food. This year the goal is to set aside some of the politics that divide us and celebrate the many diverse neighborhoods that connect San Diego residents to one another. Come check out our booth and meet some of the NMR community. The event will be held Saturday August 3ed from 10AM to 2PM at Liberty Station in San Diego.

How can you support independent creators and artists?

Please remember New Media Rights is an independently funded nonprofit program and relies on the support of individuals like you to provide free and low cost legal services to internet users and creators.

We accomplish a great deal on a modest budget, so any donation makes a huge impact for us.

You can make a donation to support legal services and advocacy for internet users and creators by clicking here.

Please also make sure to connect with New Media Rights on
 Twitter, Facebook, and YouTube.

 
Thanks again for being part of the New Media Rights community. Keep an eye out as our future battles and work on behalf of internet users and independent creators continues.

All the best,

The New Media Rights team
 
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The public domain. Now available for only $165 an hour!*

Copyright Office assignments of copyright

So you want to use a work you think is in the public domain in your creative project.  Hang on; it might not be as simple as you think.

Works published before 1923 are in the public domain. This means these works are no longer protected by copyright and are free for use by anyone in anyway. However, works between 1923 and 1964 fall into a grey area; they may be in the public domain depending on if their copyright was renewed 28 years from the date of the original copyright.

Figuring out if a work is renewed can be a tricky business. The only official records of renewal are held by the Copyright Office in Washington D.C.  However records before January 1, 1978 are not available online. The only way to gain access to these accurate and official records of copyright renewals is to either:

  1. Go  to the Copyright office in person, in Washington D.C. , and research their records using paper card catalogs OR;
  2.  Pay the copyright office $165 an hour to search the copyright records for the original copyright and the renewal notice.

In 2013 should we have to rely on paper card catalogs to help determine if a work is in the public domain?  Moreover, Is a work really public domain if it costs $165 an hour to know it’s in the public domain?

Of course there is a much larger problem. Even a search by the copyright office stating that the work was not renewed isn’t definitive proof that the work you want to use isn’t in the public domain. It’s entirely possible that the work you want to use is actually a derivative work of a public domain work and still under copyright protection. For a great example of how complex this can get check out our video “Is the Wizard of Oz Copyright protected?

The difficulty of assessing which works are in the public domain is a huge problem. Creativity cannot exist in a vacuum. When we can’t easily determine what works we can safely use and draw inspiration from creativity is stifled and our critical first amendment right to free speech is chilled. New Media Rights recognizes the complexity of the problem. However, a great first step would be the digitalization of all copyright office records to make them accessible to the public without a plane ticket to D.C. or a $165 an hour surcharge.  

UPDATE: On 9/5/13 New Media Rights sent the Copyright Office a comment about this very issue. That comment is attached to this post.

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Help us kick off our second year as a part of California Western School of Law! - June 2013 Newsletter

New Media Rights






It's been almost a year since New Media Rights became part of California Western School of Law. The partnership has been a huge success! We've provided free legal services to hundreds of internet users and creators.  We've also produced over 100 educational videos that have received over 150,000 views! In addition, we've helped create public policies that improve our ability to access and remix the world around us, and to have control of what information and services we can access through new technologies like smartphones.  
 
We've been able to support this work with grants from the California Consumer Protection Foundation and the City of San Diego, but we're still independently funded, so we need your support today to help ensure our services will be available for years to come. This summer, we're asking you to show your support for New Media Rights with a donation.
 
If you donate at least $250, your name will go on our Founder's Wall!



When you donate, you're making sure that the next generation of creators and innovators have access to quality, affordable legal services.



Make your donation by clicking here!

 

Now to the big news! This month we're introducing our new Advisory Board, new Staff Attorney and many new events on the horizon. Here are a few of the highlights from our summer so far.



Meet our new Advisory Board!

New Media Rights is proud to introduce our first Advisory Board. Made up of creators, entrepreneurs and innovators, the board are NMR's ambassadors to the community. NMR's advisory board is made up of the following members: Shaun Spalding, Phelan Riessen, Katie Rast, Jed Sundwall, Cy Kuckenbaker, Hani Anani and Jodi Cilley.  You can read bios and see photos of the entire Advisory Board by visiting our Meet the NMR Board page.




 

Meet our new Staff Attorney, Teri Karobonik!


Teri Karobonik is our new Staff Attorney Fellow at New Media Rights. Prior to joining us she worked as a Graduate Research Fellow for Professor Colleen Chien and a Fellow at the Federal Legal Aid Self Help Center at the San Jose Federal District Court.

Teri received her J.D. from Santa Clara Law. While she was at Santa Clara Teri earned numerous awards for her work in IP and Privacy including a Pro-Bono Award for her work as the International Legal Intern at the Electronic Frontier Foundation (EFF) in the summer of 2011. Teri received her B.A. with honors in Creative Writing from the University of Arizona in 2009. She was also inducted into Phi Beta Kappa.  When Teri’s not being an awesome lawyer you can find her cooking, playing board games and doing yoga.



Upcoming Events



Startup Weekend

New Media Rights is proud to announce our sponsorship of Startup Weekend San Diego, beginning June 21 at Nokia San Diego. The event is a weekend-long, hands-on experience where innovators and aspiring technology entrepreneurs can hear from industry experts whether their startup ideas are viable. New Media Rights' sponsorship of the event includes an offer of free legal services for the winning team.

FILMCON

Film Consortium San Diego, So Say We All and Space 4 Art present FILMCON, July 19th from 6:00-10:00PM at Space 4 Art. Come out and join San Diego, LA and visiting filmmakers in this first annual event that promotes independent film and supports filmmakers, cast and crew. There will be special guests, speakers, and panels on a variety of topics. Enjoy independent films, network with others and and enjoy the experiences that only Comic-Con weekend and crowds can provide.Come check out our table and meet some of the NMR community. Tickets are available here.

VidCon

Come meet our new Staff Attorney Teri at VidCon in Anaheim, CA! VidCon has established itself as a premier gathering of people who make online video, whether they're just starting, or have been doing it for years. VidCon will be held August 1-3 in Anaheim, CA. 



Politifest

Politifest is a family-friendly festival featuring community booths, activities, music and food. This year the goal is to set aside some of the politics that divide us and celebrate the many diverse neighborhoods that connect San Diego residents to one another. Come check out our booth and meet some of the NMR community. The event will be held Saturday August 3ed from 10AM to 2PM at Liberty Station in San Diego.



Useful guides - The NMR website has all kinds of guides and videos to help artists and creators, here's a few that can help you while you're out there creating.



Guides

A citizen's legal guide to using Creative Commons licenses

Videos

How do I get a Copyright for my work?

Zach Barth - NDAs and privacy policies for accepting user generated information



How can you support independent creators and artists?



Please remember New Media Rights is an independently funded nonprofit program and relies on the support of individuals like you to provide free and low cost legal services to internet users and creators.



We accomplish a great deal on a modest budget, so any donation makes a huge impact for us.



You can make a donation to support legal services and advocacy for internet users and creators by clicking here.



Please also make sure to connect with New Media Rights on
 Twitter, Facebook, and YouTube.

 
Thanks again for being part of the New Media Rights community. Keep an eye out as our future battles and work on behalf of internet users and independent creators continues.



All the best,



The New Media Rights team
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Representing Internet users at the FCC - May 2013 newsletter

 

 

New Media Rights


We've gotten off to a great start this year, providing services to over 123 individuals since January 1, giving over 6 legal basics workshops, and representing creators and consumers at the FCC's Consumer Advisory Committee.   We've shared a few highlights below as we head into an exciting summer for NMR!  
 
Representing internet users and consumers at FCC


New Media Rights represented consumers and independent creators at the @FCC Consumer Advisory Committee Friday, April 26. The full recording of the meeting is here. The meeting covered many upcoming issues facing the incoming FCC Chairman, including an upcoming spectrum auction to free up spectrum for wireless devices, disability and rural access, as well as many other consumer issues.

Specifically, Art Neill from New Media Rights raised the issue of the Federal Communications Commission plan a few years back to launch a committee regarding the Commission's Open Internet Regulations. This committee has still not been formed, and some kind of 3rd party review is critical for consumers and independent creators to make sure that these rules are actually being enforced. You can count on us to continue to work to make sure the Open Internet rules are being properly enforced.


A big thank you to Shaun Spalding


In April long time team member and Assistant Director Shaun Spalding headed off to work on a variety of creative projects, including producing a documentary film that he's wanted to pursue for a number of years.  Shaun started as a legal intern at New Media Rights in 2010, and then became staff attorney in 2011, followed by Assistant Director in 2012.  Shaun has many talents, and was willing to lend them all to improve New Media Rights. Specifically, Shaun has been a force for creating over 100 successful educational videos, and providing dedicated advocacy to hundreds of internet users and creators over the years.  He's also simply a great colleague.  Luckily we aren't saying goodbye, as Shaun has joined our Advisory Board and will hopefully be involved with New Media Rights for years to come.  A big thank you to Shaun and best wishes in his creative work!

Welcoming new legal interns!

We're thrilled to welcome
Casey Lowe, Marlena Balderas, and Marko Radisavljevic as new legal interns with New Media Rights this summer.  We're also excited to welcome back legal interns Jordan Kohler, Lauren Brady, and Matt Prellberg. 

We are grateful to all our legal interns for their contributions to New Media Rights.  We couldn't help so many internet users and creators without their hard work.

You can read bios and see photos of the whole team by visiting our Meet the NMR Staff page.




Revamping the website!


Our website recently got a pretty serious aesthetic update. We hope you find the new site format a bit easier to navigate. We'd love for you to take a look and let us know what you think. If you have comments or suggestions please send them to support @ newmediarights.org.  Remember, we base our guides and videos on your input, so please let us know if you have a particular guide to suggest.

ISSUE WE'RE MONITORING - Youtube Isn't Honoring DMCA takedowns?

Unfortunately, New Media Rights has seen evidence in recent months that suggests that some large media companies have been able to override legitimate appeals and disputes by users regarding content takedowns on Youtube. This guest blog from Patrick McKay of the Fair Use and Youtube watchdog FairUseTube.org, explains the problem in more depth.

We're monitoring the issue closely and trying to gather additional information to help address this issue, so feel free to contact us with additional information you may have regarding DMCA counternotices that fail restore disputed content on Youtube.


Upcoming Events

Alliance for Community Media Conference May 30 in San Francisco


New Media Rights Executive Director Art Neill will be speaking on a panel at the Alliance for Community Media Annual Conference on May 30, 2013 in San Francisco, CA from 2:00pm at the Westin St. Francis in San Francisco..

The topic of the panel will be "Free Speech vs. Copyright: An Intersection or a Collision."

The panel will be an opportunity to give positive support to artists, showing them the ways the law can actually empower their creativity, how to avoid legal disputes in the first place, and how to move forward if you do face legal threats.

The conference takes place from May 29-31 at the Westin St. Francis in downtown San Francisco.


Space 4 Art Emerging Artists series June 6 in San Diego

New Media Rights will be giving a talk at Space 4 Art in the East Village of Downtown San Diego.  The talk will be called "
Copyright, Fair Use, Creative Commons and Other Ways the Law  Empowers Media Creators," and focus on the ways the law can empower artists.  This event is tentatively set for June 6 at 7pm at Space 4 Art, but check the Space 4 Art website and NMR's website for more details as they become available.

Useful guides - The NMR website has all kinds of guides and videos to help artists and creators, here's a few highlighted guides

Guides

How to find free music, images, and video you can use or remix in your own creative works 

Videos

What can't be copyrighted?

If I pay someone to create something for me, do I own the Copyright to the work?

 

New Staff Attorney and Advisory Board members

In June we'll be announcing a new staff attorney and our advisory board members for 2013, so keep an eye out for that announcement!



How can you support independent creators and artists?

New Media Rights is an independently funded nonprofit program and relies on the support of individuals like you to provide free and low cost legal services to internet users and creators.

We accomplish a great deal on a modest budget, so any donation makes a huge impact for us.

You can make a donation to support legal services and advocacy for internet users and creators by clicking here.

Please also make sure to connect with New Media Rights on
 Twitter, Facebook, and Youtube.
 
Thanks again for being part of the New Media Rights community. Keep an eye out as our future battles and work on behalf of internet users and independent creators continues.

All the best,

The New Media Rights team

 

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NMR to speak on free speech & copyright law at the Alliance for Community Media Conference May 30 in San Francisco

New Media Rights Executive Director Art Neill will be speaking on a panel at the Alliance for Community Media Annual Conference on May 30, 2013 in San Francisco, CA.

The topic of the panel will be "Free Speech vs. Copyright: An Intersection or a Collision."

The panel will be an opportunity to give positive support to artists, showing them the ways the law can actually empower their creativity, how to avoid legal disputes in the first place, and how to move forward if you do face legal threats.

The conference takes place from May 29-31 at the Westin St. Francis in downtown San Francisco.

Here's a description of the panel:

Free Speech vs. Copyright: An Intersection or a Collision?

How does community media’s promotion of the First Amendment sit with the standards we adopt for copyright? Can we respect Intellectual Property, Intellectual Freedom and Internet Protocols all at the same time? We’ll discuss the parameters and limits for what we can show on TV and online, where we can source content from, and how concepts such as Fair Use, Free Speech, and Creative Commons relate to community media. We’ll offer suggestions to both producers and programmers for realizing the full possibilities of freedom of expression and consider what restrictions one should adhere to.

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Is Youtube refusing to honor DMCA counter-notices?

Unfortunately, New Media Rights has seen evidence in recent months that suggests that some large media companies have been able to override legitimate appeals and disputes by users regarding content takedowns.  Our guest blog below from Patrick McKay of the Fair Use and Youtube watchdog FairUseTube.org, explains the problem in more depth.

We're monitoring the issue closely and trying to gather additional information to help address this issue, so feel free to contact us with additional information you may have regarding DMCA counternotices that fail restore disputed content on Youtube. Regardless, this is a reminder of one of the often ignored secrets about the DMCA safe harbors that protect websites like Youtube - that service providers may choose to honor takedown notices from copyright holders and not to honor counternotices from users.  The practice may be legal, but the consequences on the range of expression on services like Youtube is significant.  
 
Under the default law, Youtube might still be liable to the user, but even then the remedies a user could obtain from Youtube may be small, and Youtube attempts to try to further cover themselves in their terms of use as follows.
 
"If a counter-notice is received by the Copyright Agent, YouTube may send a copy of the counter-notice to the original complaining party informing that person that it may replace the removed Content or cease disabling it in 10 business days. Unless the copyright owner files an action seeking a court order against the Content provider, member or user, the removed Content maybe replaced, or access to it restored, in 10 to 14 business days or more after receipt of the counter-notice, at YouTube's sole discretion."
 
That's why its important for us as users to keep a close eye on what Youtube is doing and place consumer pressure on Youtube to actually "not be evil" in terms of providing fair process for videos to appeal takedowns. It's also a reminder that the more Youtube's revenue model includes large media company content partners, the more influence those companies can have over the content we can access online.
 

Youtube refusing to honor DMCA Counter-notices

 

by Patrick McKay

Last October, YouTube announced some much needed reforms to its Content ID copyright dispute process. Bowing to growing public pressure, YouTube ended the practice of allowing copyright claimants to unilaterally deny disputes, leaving users with no further recourse to have non-infringing videos restored.

YouTube established a new “appeals” process, which once again gave users whose videos are blocked by Content ID recourse to the DMCA counter-notice process if the copyright owner insists on rejecting their dispute. At the end of the process, the user’s video would be restored unless the copyright claimant actually filed a lawsuit seeking an injunction to keep it offline. No longer.

YouTube refuses to honor counter-notices for “contractual reasons”

For months I have been trying to discover why many users have been receiving responses to DMCA counter-notices stating, “It appears that you do not have the necessary rights to post the content on YouTube. Therefore, we regretfully cannot honor this counter-notification.” I even got in touch with a YouTube product manager who promised to look into the situation for me, though he has not yet provided me with any answers. While I initially suspected some kind of technical glitch, it now appears that something far more nefarious is going on.

 

I have recently discovered evidence that YouTube has contracts with certain copyright holders (including Universal Music Group – UMG) to refuse to honor DMCA counter-notices sent in response to their copyright takedowns—essentially giving them the power to take down any video they wish, even if it does not infringe their copyright in any way.

It is interesting to note that a little over a year ago when UMG infamously took down the “Megaupload Song” video with a completely bogus copyright claim, UMG claimed it had unspecified “contractual rights” to do so even if it did not infringe its copyrights. At the time however, YouTube explicitly denied having a contract with UMG that gave them the right to take down videos on which they had no legitimate copyright claim, stating, “Our partners do not have the right to take down videos from YouTube unless they own the rights to them or they are live performances controlled through exclusive agreements with their artists…”

It appears things have changed. Consider the following:

Last week I was contacted by a YouTube user named John (YouTube username: WernerVonWallenrod), who mainly posts reviews of old vinyl records. He uploaded a roughly 7 minute videoreviewing an old Eric B. & Rakim record from the 1980s, 90% of which consists of him standing in his kitchen talking about the record. The video includes a couple clips of him playing short (<1 minute) segments of the record while filming the record player.

Because the video uses only short, low-quality segments of a few songs on the record for purposes of critical commentary and review, the video almost certainly qualifies as a textbook example of fair use. Nevertheless, UMG had the video taken down with a DMCA notice. Believing his video to be fair use, John sent a properly filed DMCA counter-notice in response. A few days later, he received this email from YouTube (emphasis added):

Hi there,

Thank you for your counter-notification. The complainant has reaffirmed the information in its DMCA notification. YouTube has a contractual obligation to this specific copyright owner that prevents us from reinstating videos in such circumstances. Therefore, we regretfully cannot honor this counter-notification.

You may learn more about this here:

http://support.google.com/youtube/bin/answer.py?hl=en&answer=3045545

We unfortunately are unable to assist further in this matter. You may wish to contact the complainant directly at youtube@umusic.com.

 Regards,

 Linda

The YouTube Team

This message is extremely disturbing for multiple reasons. It appears that YouTube is saying it essentially has a contract with UMG to ignore DMCA counter-notices sent against its copyright claims, so that even if the copyright takedown has no legal basis, YouTube must nevertheless refuse to restore the video if UMG “reaffirms” the information in its DMCA notice. The help page referenced in the email providers further details (emphasis added): 

Videos removed or blocked due to YouTube's contractual obligations

YouTube enters into agreements with certain music copyright owners to allow use of their sound recordings and musical compositions.

In exchange for this, some of these music copyright owners require us to handle videos containing their sound recordings and/or musical works in ways that differ from the usual processes on YouTube. Under these contracts, we may be required to remove specific videos from the site, block specific videos in certain territories, or prevent specific videos from being reinstated after a counter notification. In some instances, this may mean the Content ID appeals and/or counter notification processes will not be available. Your account will not be penalized at this time.

YouTube will inform you if this is the case for one of your videos, and will provide you with contact information for the complainant whenever possible so you can discuss the matter directly.

So the user is stuck. Their video could be fair use, in the public domain, or contain no UMG content whatsoever, but as long as UMG “reaffirms” their takedown notice (which based on previous experience I’m guessing they will always do), YouTube will refuse to restore the video. YouTube and UMG (and possibly other copyright holders) have made a contractual end-run around the DMCA notice and counter-notice process, giving certain preferred copyright holders a free pass to take down any video on YouTube they wish with impunity, having been guaranteed that their takedowns will be immune from counter-notices.

No recourse for user

In such cases about the only thing the user can do is attempt to contact the copyright claimant using the information provided by YouTube, and attempt to convince them to retract their copyright claim (probably a futile endeavor). In John’s case, he emailed the provided youtube@umusic.com address to inquire about this situation, and interestingly enough, even though the email is on a UMG-owned domain, he received a response not from UMG but from YouTube, stating:

For the reasons explained before, we regretfully cannot honor this counter-notification. However, your account will not be penalized and your strike has been resolved.

YouTube was kind enough to remove the copyright strike on his account, though only after he contacted them, not after they initially refused to restore his video.

YouTube’s liability limited

 

It should be noted that YouTube has no legal obligation under the DMCA to restore videos upon receiving a counter-notice. The DMCA is only a safe-harbor which sites may follow to be immune from liability, and is not in itself mandatory. In order to be immune from liability for users’ copyright infringement, YouTube must take down videos upon request. Likewise, in order to be immune from liability to the user for taking down the video, YouTube must restore the video within 14 business days of receiving a counter-notice, unless it first receives notice that the copyright holder, “has filed an action seeking a court order to restrain the subscriber from engaging in infringing activity relating to the material on the service provider’s system or network.”

Here, YouTube takes down videos upon receipt of a takedown notice, but it is refusing to restore them after receiving a counter-notice, even though no lawsuit has been filed seeking an injunction. This means in theory, YouTube is liable to the user for taking down the video. However, YouTube has been careful to immunize itself against liability for this through its Terms of Service, which state:

If a counter-notice is received by the Copyright Agent, YouTube may send a copy of the counter-notice to the original complaining party informing that person that it may replace the removed Content or cease disabling it in 10 business days. Unless the copyright owner files an action seeking a court order against the Content provider, member or user, the removed Content maybe replaced, or access to it restored, in 10 to 14 business days or more after receipt of the counter-notice, at YouTube's sole discretion.

So even though the law makes YouTube potentially liable for refusing to honor a counter-notice, YouTube’s Terms of Service (which you have to agree to in order to use the site) override this, giving it the right to refuse to restore a video at its sole discretion.

About the only legal remedy the user could possibly pursue would be to sue Universal Music for misrepresentation under section 512(f) of the DMCA, along with seeking a declaratory judgment that the video is not infringing and an injunction against UMG continuing to assert a copyright claim over it. This, of course, is not feasible for the average YouTube user.

Conclusion

While YouTube has no actual legal obligation to restore videos after receiving DMCA counter-notices, YouTube is clearly violating the spirit of the DMCA. The DMCA is quite clear in its intent that the end result of the copyright dispute process on a user-generated content site should be that if the user insists their content is not infringing, it should be kept online unless the copyright holder sues for an injunction to have it taken down. This necessarily requires a court ruling that the material is infringing.

YouTube and UMG have taken the intent of the DMCA and turned it on its head. Now instead of the copyright holder having to sue to keep the material offline, the only way a user can have his video restored is to sue the copyright claimant for a declaration that the video is not infringing and to secure an injunction forcing the copyright claimant to withdraw its copyright claim.

Before posting this article, I sent emails to YouTube’s press contact, Annie Baxter (whom I have corresponded with in the past), and to a YouTube product manager I met at a conference in February, seeking comment on this situation. Neither has sent me any response.

Plenty of questions remain. Is UMG the only entertainment company YouTube has this type of agreement with, or are there others? What are the conditions of these agreements? Does YouTube have any policies or procedures in place to protect users, or has it essentially given these companies a carte blanche to take down any video they wish with impunity?

For now, it is difficult to understate how badly YouTube has screwed over its users here. Instead of standing up for users’ free speech rights, YouTube has sold them out to big entertainment companies, who now have the power to take down any video they wish by bogus assertions of copyright, with absolutely no accountability.

For all Google’s “don’t be evil” mantra, it appears that the depths to which Google is willing to sink to kowtow to the major record labels at the expense of its users’ rights truly knows no bounds.

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New Media Rights appointed to FCC Consumer Advisory Committee

New Media Rights' consumer and internet user advocacy efforts were recognized this week with the appointment of to the Federal Communications Commission’s (FCC) Consumer Advisory Committee. The FCC committee works to serve the interests of consumers by soliciting their input during the regulatory process and working to improve consumer access to modern communications services.

New Media Rights, which often takes part in regulatory proceedings at the FCC and U.S. Copyright Office, looks forward to bringing our internet user, consumer-first approach to the Committee.

New Media Rights Founder/Executive Editor Art Neill

“Our appointment to the FCC’s Consumer Advisory Committee gives us a place where we can share the concerns of internet users and consumers directly with regulators,” said Neill. “Good public policy starts with actually knowing what’s happening on the ground. New Media Rights focuses its efforts on helping a variety of consumers and creators often left out of conversations about public policy that affects them.”

New Media Rights recently defended San Francisco artist Jonathan McIntosh in a copyright dispute with Lionsgate Entertainment over the unlawful takedown of McIntosh’s popular “Buffy vs. Edward: Twilight Remixed” video. The program also offers copyright, licensing, and trademark expertise to internet users and independent creators, and advises consumers on how protect their privacy.

In addition to providing a much-needed voice for consumers on the FCC committee, we're excited about the hands-on training opportunities our appointment will create for California Western students interested in practicing internet and media law.

“The Committee tackles a variety of subjects, from broadband internet accessibility to improving consumers’ interaction with the FCC,” said Neill. “Through this work, New Media Rights legal interns will have an opportunity to be exposed to the regulatory and policy side of the one-to-one work they’re doing with NMR.”

To learn more about how you can support New Media Rights’ mission, click here.

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