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!
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 firstname.lastname@example.org.
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:
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.
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.
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.
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.
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):
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:
We unfortunately are unable to assist further in this matter. You may wish to contact the complainant directly at email@example.com.
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.
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 firstname.lastname@example.org 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.
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.
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.
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.
“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.
Learn about our legal services for: App Developers, Artists & Graphic Designers, Bloggers & Journalists, Clothing Designers, Entrepreneurs, E-commerce Business People & Startups, Filmmakers & YouTube creators, Game Developers, Internet users & Smartphone users, Makers, Musicians, Non-Profits, Photographers, Scholars, Researchers, and Writers and Publishers.