Submitted by When her 0.29″ family video was taken down by YouTube on the request of Universal MPG, the affected mother of two struck back with a lawsuit against Universal with the help of the EFF. While technically her family video might have been a copyright infringement as she had no license to include Prince’s song as a background score, it is encouraging to see the public fighting back against restrictive laws that get in the way of their every day lives. My Take: I stated my own opinion on the matter on my personal blog.
Mother Goes Against Universal Music
About The Author
Eugenia Loli
Ex-programmer, ex-editor in chief at OSNews.com, now a visual artist/filmmaker.
Follow me on Twitter @EugeniaLoli
The best place for free word to be is jail, so nobody would harm it…
Except its cell mate… 😉
Incarceration is a popular lifestyle choice amongst the disenfranchised poor in America. You get food, shelter, healthcare, security, exercise facilities, educational resources, and plenty of leisure time. The only way to be guaranteed a humane existence in America is to break the law. It’s not great, but it’s a step up for most homeless Americans, and besides, the majority of the prison population is nonviolent.
The only way to be guaranteed a humane existence in America is to break the law.
This is a patently false statement. That you have a following of supporters says to me that some vote with their bias rather than their brain.
Edited 2007-10-28 14:28
And most of it is victimless; heck, I don’t do drugs, but I think it is stupid to lock up a prisoner at a cost (in NZ terms) $60,000 per year; $300,000 for the total sentence, not including the loss of earnings and loss of potential earnings thanks to the criminal record – all thanks to a few grams of weed.
We have the US conservatives running rampant over ‘teh gays’ and ‘teh weed’ when they can’t even get their own house in order. Then rocket scientists like Hillary and Romney wonder why people are so disconnected with politics given the moronic decisions being made.
Replace drugs with ‘movie with music in the background’ – another example of a legal system justifying its existence and a music industry grasping at straws, trying to turn every minor infringement into some sort of an ‘example’ of ‘how not to act’. What next, ‘copyright infringer’ burnings? public floggings? given the stupidity so far, I’d say its not too far off.
Well, It’s not the politician’s fault that many people are “disconnected from politics”.
It is simple: The “disconnected” people are just plain stupid. They obviously do not think that they actually have an influence on what laws are passed. They think politics to be dirty, unrewarding and uninfluencable. But in fact there are just many politicians who are like that, you just have the choice of voting for the right persons.
So EVERYONE who does not vote has no right to complain about “dirty politics” and disconnectedness. Because this disconnectedness unfortunately is only one-sided, if one decides to not have an influence on the politic actors this does not mean that the actors have no influence on his life.
“Incarceration is a popular lifestyle choice amongst the disenfranchised poor in America. You get food, shelter, healthcare, security, exercise facilities, educational resources, and plenty of leisure time. The only way to be guaranteed a humane existence in America is to break the law. It’s not great, but it’s a step up for most homeless Americans, and besides, the majority of the prison population is nonviolent.”
I don’t mean to come across as “bashing” you, but that is one of the most ludicrous, and out of touch with reality, statements that I’ve seen in some time now. I’m not sure what led you to such a completely wrong mindset to come to such a conclusion, but a dose of reality would certainly serve you good. As far as whoever would actually vote your statement up, I have no idea what they are thinking. Perhaps it’s a politically biased view that led to your post, and to those voting you up. But, to be so completely wrong and yet receive votes just blows me away. I just pray that osnews doesn’t become digg or slashdot.
America is so free that 1 in 10 Americans will do jail-time at some point in their lives.
God Bless the USA.
Describing this as a restrictive law indicates that you probably don’t fully understand the situation. The RIAA and Prince really do not care about home-videos: the various Performers’ Rights entities are not going to sue you for recording your birthday party. YouTube however is a purely commercial venture. It doesn’t host clips of your cat dancing or your grandma playing basketball as a public service or to be kind. YouTube hosts videos to make money, now and in the future. That’s their only reason for doing it. Now their business model is extremely clever, as they are able to get mostly amateurs to hand over their artistic works (that is, your birthday video or dancing cat film) without asking for any money in return. That in itself is a threat to professionals in the entertainment industry. Now you may not feel much sympathy for these entertainment industry professionals, but you cannot blame them for wanting to protect their revenue streams. The Prince track in the background of a party is an extreme example, but in legal terms the RIAA will be allowing a precedent to be set if they do not pursue all infringement on YouTube diligently. There will be de facto fair use, and frankly that isn’t fair to those such as musicians and singers who earn their living in entertainment.
If you upload a video to YouTube, you are entering the world of business with all the attached legal ramifications. YouTube knows this, and cannot rely on the legal naivety of its content-suppliers (unpaid regular people like us) as a barrier against its obligations to performers under the law.
oma2la, you misunderstand me and you make assumptions of what I know and what I don’t. Of course and I know that youtube is a commercial entity, I clearly mention this on my older Creative Commons blog post: http://eugenia.gnomefiles.org/2007/09/06/creative-commons-licensed-…
But where you are wrong is this: “it isn’t fair to those such as musicians and singers who earn their living in entertainment.” As I write on my newer blog post, 99% of the artists don’t CARE about youtube, and in fact are NOT against home videos to be used in conjunction to their music. The reality is, the RIAA and the labels are creating this problem, not the artists.
The point is, this is a restrictive law the way it is now. More freedoms should be given to the consumers, for situations that don’t truly take away the artist’s or label’s revenue. If Youtube will host or not a home video with a song doesn’t really bring or take away anything from the artist (a family man would never actually properly license music for thousands of dollars). In fact, it might help the artist. It’s just that the RIAA needs to be convinced of this too.
Edited 2007-10-27 23:41
I assumed you were aware of YouTube’s commercial status, and nothing in my comment suggested you weren’t. If you are objecting to my assumption that you do not possess in depth knowledge of US copyright law when in fact you do, I apologise without reserve.
My point is simply that it seemed you did not fully comprehend the legal complexities of the situation. You are focusing on the unfairness of the particular case in question, and on its own I agree that removing the video seems harsh (even though none of us has a legal right to have our videos hosted by anyone, and the plaintiff has in no way suffered) but in the absence of modern legislation concerning these newly arisen situations, the RIAA has to act to protect its intellectual property. It may take a long time for governments to agree on comprehensive laws dealing with online content, but until such laws are made these apparently unfair cases will continue.
Neither of us can know how “99% of the artists” feel about the current situation, so it is probably unwise to use such figures.
Take it then as “vast majority of artists”. I know a few, and none of them has a problem. If Prince has a problem with it, he is one of the very few who do.
I really like how the few you know constitutes a “vast majority of artists”. I didn’t realize that the total count of artists is the few you know plus prince.
In all seriousness, don’t use terms of your opinion as facts, which you are doing. It confuses the vast majority of people who read you. Of course this “vast majority of people” is one or two people, but hey, if you can use that term to describe your friends, I can use it to define another arbitrary set of people.
I am an artist, and I know very many artist personally with whom I have played music as well as watched their shows. I have also read opinions of many more, personally unknown, artist that have all said the same thing. We don’t care about people using our work on YouTube and even encourage it!
As a case in fact, Prince is one of the most outspoken proponents of distributing content over the internet, more often than not for free.
The only artists that I know who disagree with online/offline fair use are either greedy, don’t understand what they are talking about or, more often than either, both (see Metalica for more information).
So, to backup Eugena on this one, she is absolutely right. In fact, the 99% statistic she mentioned is probably far closer to the mark than you seem to think.
A lot of us may be artists, but that doesn’t automatically make us statisticians too.
Youtube is a great way for people to hear your music. I’m a musician, I am personally OK with the RIAA taking those songs down.
Hopefully people will start using more indie artist’s songs whom usually are more talented and origional 😉
Since a handful of companies set the trends and control music tv and radio nowadays.. its disguisting.
In my opinion, it does nothing but benifits the artists which is why all the major lables like to put all their music videos on there. Sure you can record the audio output easily, but in my opinion if you really like the band enough you’ll buy their record and go to their shows.
So you agree with Eugenia, the law is stupid, and needs reform. So what is your point?
You’re completely incorrect. Regardless of YouTube’s status as a commercial, for-profit venture, the DMCA clearly identifies YouTube as a hosting service and protects it under its “safe harbor” provisions. YouTube is an irrelevant third-party in this legal battle between the copyright owner (Universal) and the content distributor (the housewife).
Under the DMCA, YouTube doesn’t distribute works, they merely provide a neutral hosting service. Their only legal obligation is to respond to take-downs and counter-claims. Google would not have purchased YouTube if services of this sort had any legal liability for copyright infringement.
It is the content distributor who is liable, and that’s why the housewife is the sole defendant, not YouTube. The law doesn’t care at all if the the content distributor or the hosting service derive income from their operations. It wouldn’t make a difference if YouTube was some sort of non-profit humanitarian organization. And obviously the housewife wasn’t out to make a few bucks.
This is not about money per se, it’s about control as a means of protecting revenue streams.
Butters, nothing I said contradicts what you have written (except that the mother is not a defendant in any suit). You are absolutely correct in saying that YouTube makes its money as a neutral third-party. What I’m saying is that its business model to some degree relies on the legal ignorance of its largely non-commercial content providers. YouTube makes money by not policing the content for infringement, and counts on copyright-holding entities not knowing or not caring about any such infringements for part of its profits.
There is no law whatsoever that requires YouTube to do any policing. On what basis do you suggest that YouTube should become the copyright police?
There are terms of service that explain to users that they are responsible for the content they submit. By using the service, they agree to abide by these terms. This is a very common legal mechanism that, as far as I know, it is backed up by case law to the extent that the terms themselves are legal.
We live in a society where people aren’t expected to realize the potential danger of coffee unless the cup explicitly warns that it contains hot liquid. There’s a limit to how ignorant people are permitted to be under the law, and it sets a shockingly low bar for common sense. If we are duly warned, then we are on our own.
Now, the mess that copyright law has become does have implications for the layman. It isn’t as easy to understand copyright law as it is to understand the laws against shoplifting. This where this case comes into play, because there is a genuine difference of interpretation concerning whether or not this baby video is copyright infringement.
But people do (largely) understand that posting obviously infringing material on YouTube is illegal, and they’ve been warned. Coffee burns–it says so right on the cup.
On what basis do you suggest that YouTube should become the copyright police?
Nowhere did I suggest that YouTube should become the copyright police. I merely indicated that their right to decline to investigate the legality of the material they host contributes to their profits.
Otherwise, I broadly agree with your comments: this is a complex area.
OK, I misunderstood the crux of your argument. Yes, YouTube profits by not going above and beyond their legal obligations. However, this is true of just about any business. You generally have to pay more for products that exceed minimum requirements, like free-range poultry or all-natural cleansers. I don’t believe that advertisers are willing to pay more to place ads on a service that preemptively removes content.
Sorry butters – I should have been clearer.
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I pretty much agree with your post. But this “example” gets used so frequently that I like to set the record straight. McDonalds was negligent. And the plaintiff was no more careless than most of us. That near boiling coffee, about which McDonalds had been repeatedly warned, *was* dangerous. And McDonalds got nothing more than a slap on the wrist.
http://tinyurl.com/32mzjm
Edited 2007-10-28 02:47
Sorry, but hot coffee in a flimsy cup does not get placed between my legs at any temperature, and I have to believe that most guys would feel the same way for obvious reasons.
To be honest, I’d feel more sympathetic if she suffered burns from trying to drink the coffee while driving and hitting a bump in the road, because that’s something I can relate to. But placing a styrofoam cup between her legs and jerking the top off to add cream and sugar? The extent of the burns would imply she either spilled the coffee outright, or jumped up when the initial coffee spilled and wound up spilling the rest. Either way, who puts hot coffee between their legs?
Certainly McD holds culpability if they were keeping their coffee at an inordinate temperature, but lets keep things in perspective. Claiming that the coffee should have been at a lower temperature doesn’t mitigate the fact that it should still be handled responsibly by the customer.
If you believe that this situation crosses the line of copyright protection, where is the line?
Is it digital copying vs. analogue? Over-the-wire vs. over-the-air? Complete work vs. partial? Wide distribution vs. family and friends?
There are a lot of circumstances in this case that, when considered together, create the impression that Prince/Universal has overstepped their bounds. But is any one of the above distinctions sufficient on its own to differentiate between infringement and fair use? Should it be a subjective distinction?
I think that’s exactly the problem: there’s no clear cut. Although for audio I could argue low quality full versions are ok to be synced with video, and for movie clips that are no longer than X minutes to be included in your own video AS LONG AS you give credit (so this way people who do have the money to license stuff can easily find the source). In other words, if your derivative home-video work can be used as advertisement to the artist and is not used improperly (e.g. using a song for a NeoNazi anthem), let it be.
Currently, the law is clear: fair use is only for 4 specific things (e.g. journalism, education, parody and one more thing that I forget), and not for the consumer. Adding the consumer to the mix does make things more complex because there are way too many cases and more that will be created in the future. So lawmakers preferred to not include them at all rather than making the law more complex.
Hopefully this lawsuit will go further and will change precedence and hopefully maybe even change the law. The only question is, if the law changes to add the consumer to the fair use game, its newfound complexity will help the consumer or will make things worse?
Edited 2007-10-27 23:54
Currently, the law is clear: fair use is only for 4 specific things (e.g. journalism, education, parody and one more thing that I forget), and not for the consumer. Adding the consumer to the mix does make things more complex because there are way too many cases and more that will be created in the future. So lawmakers preferred to not include them at all rather than making the law more complex.
No, the law on “fair use” isn’t really that clear. There is no specific exclusion of “consumer”, either, at least from skimming section 107. I say skim, but honestly, my eyes started crossing a bit. If you can point out where it says “The consumer has no rights to fair use”, I’d like to see it. The judge in the Betamax case might want to as well.
However, the following page at the US copyright office (aka “First google hit”) has some guidelines on fair use. From http://www.copyright.gov/fls/fl102.html we have the following:
Section 107 contains a list of the various purposes for which the reproduction of a particular work may be considered “fair,” such as criticism, comment, news reporting, teaching, scholarship, and research. Section 107 also sets out four factors to be considered in determining whether or not a particular use is fair:
1. the purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes;
2. the nature of the copyrighted work;
3. amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
4. the effect of the use upon the potential market for or value of the copyrighted work.
Now, if it’s such a clear-cut case that the consumer has no “fair use” rights, why does the US Copyright office list the guidelines for determining “fair use”?
Personally, I would say this particular instance comes under “news reporting”– Sure it’s news most people don’t care about, and the “reporter” isn’t a “professional journalist”, but I see no reason why this wouldn’t constitute fair use according to the information on the USCO’s website.
It could also be “comment”, as in “my baby likes Prince”. Or “teaching”, as in “playing music for babies is crucial to their creative development”.
On a slightly tangential note, FOX News has sent cease and desist letters to all of the U.S. presidential campaigns warning them not to use clips from FOX News in their advertisements, including the candidates’ interview and debate appearances on the network.
From what I recall working in a (small scale, mind you) television production studio, 20 seconds is the legal maximum length of audio permitted before royalties must be paid. I’m not a lawyer, and can’t find the specific law regarding it, but I do recall that while syncing video with audio clips of Santana, Led Zeppelin, and, yes, even Prince. Distribution may also play a role in it, as wider distribution has more stringent laws covering it.
The very acts of listening or reading are copying if you ask me.
Human memory doesn’t count as tangible form for the purpose of copyright.
I know it doesn’t, and it’s just as arbitrary a distinction as everything else in copyright which, I guess, was my point.
Have you actually seen the video?
http://www.youtube.com/watch?v=N1KfJHFWlhQ
Watch it and maybe you’ll see how [expletive deleted] this really is!
This isn’t a case of someone adding a “soundtrack” to a video, this is a case of someone filming something as it occurs that happened to have music playing in the background and then sharing the moment with others.
–bornagainpenguin
Bloody hell mate. If she’s being sued for that, we all might as well throw out any personal recording devices we own because someone could sue you for filming their furniture, toy.
This is truly a case of the worlds gone mad! Someone stop the earth from spinning, coz I want off
I hope the judge sees just how ludicrous this whole thing is and awards the mother a 10 million win fall, perhaps then those morons in the music/movie industry will slither and hide back under the rocks they came from.
Watch it and maybe you’ll see how [expletive deleted] this really is!
Heh. It is ridiculous.
Fair use has been upheld by the courts. It’s real, so quit saying it isn’t (again!). She could file a counter notice to have her copyrighted work restored.
I checked the story, and she did, and her work was restored to youtube. So, in fact, she won. Now the EFF is suing for abuse of DMCA take-down notices. So it wasn’t infringement.
I agree that copyrights need to be re-thought. I also think patents need to be re-thought too. I support copyright reform, but it makes me mad when someone on my side bends the facts to get sympathy or make a point. She won, so there is fair use. It’s not simple, easy, or automatic, but it exists.
The proof is that the video is back up.
I don’t know if Prince is scouring the internet for “abuse”. More likely it was a over-zealous lawyer, someone using a keyword search and sending a DMCA take-down to everyone without checking the facts. Doing that is probably illegal. I hope the EFF tears the record label a new asshole.
Give me a less rich record label, and a bunch of over-zealous lawyers in the unemployment line and I’ll be happier.
I tried posting this to your blog, but it isn’t working.
If my videos are smaller than .29 inches, they won’t take them down?
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No, silly. The double quote means “seconds”. If your video is less than 0.29 seconds then you might not get a cease and desist. Talk a bout a hair trigger!
Edited 2007-10-28 02:59
😛 I know
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I know you know. 😉
Is how this is possibly on-topic for this site.
“My take” was already posted in a personal blog; shouldn’t it have stayed there?
http://www.apple.com/ilife/imovie/#view
THis story IS on topic!
With Imovie 08 having the ability to “Send your movie directly to your YouTube™ account from iMovie” it means I have to be VERY careful what I now use in them.
iMovie has integration with itunes, can I now no longer use this feature without the threat of being sued?!
mother of two struck back.
Sorry to say this, but some very intelligent person said China has something called “Market communism” where the communist party is above all but they still let the market do the way they want as long as they pay up them taxes.
Now I’d put my neck out and say the US has “Dual Core Market communism”, as there is only 2 parties who have quite a lot in common with eachother and also believes in the market quite heavily.
I think that Europe will have a more sober view on Copyright and software patents in the upcoming decade (even though I’m concerned about what’s happening here). What will happen and already is happening is that Europe has serious growth in the software and innovation while the US is slowly loosing it’s momentum. Much of it due to the fact that organisations like RIAA think that CDs is the only way to listen to music…
I’d also like to add, being a major US enthusiast, that if I could point out 1 single thing preventing me to move to the us, it’s the authoritarian system that has grown up and more specifically that the US now has several private police forces, one called RIAA and another one called IFPI and a third on called BSA. I really disagree with privately owned SS troops in a country. Now where are the visionaries in US politics who don’t like being bribed?
Niiice term. You don’t mind I “loan” that one for my next editorial? Would make for a splendid attack on the Danish economical model
I would certainly not mind….
Having 3 or more major political parties in the U.S. will be the only means of restoring representative voting.
I can’t stomach how much both parties vomit on the US Constitution.
I can’t stomach even more the lack of concern about the US Constitution’s preamble in relation to the crumbling US Infrastructure.
That leads me to the laughable Capitalistic/Free Enterprise Markets that we currently don’t exhibit. We have a collection of consolidating market segments and they proclaim competition.
Competition? Define a minimum of 50 insurance companies competing in all 50 states and owned territories for our consumers. Do that in the auto industry (I don’t mean 3 major behemoths own 50 car companies) as well as in all industries and you’ll see innovation and advancements Capitalism proclaims should happen.
All I’m seeing are strategic oligopolies treating their “individual” corporate status as a means to protest/lobby the government for their corporation under the guise of grievances.
It’s a joke.
We should have such drought conditions in the U.S. Waterways/canals to control against flooding, hurricanes and droughts don’t exist.
Show me a Congress and White House that focuses on expanding infrastructure for the Nation and the industries springing up will make the economy flourish.
Until then, the name of the game is exploitation.
This is beyond stupid. Why do they fail to see that fan made videos utilizing certain songs cost them zero profits and are most likely to INCREASE interest in the song. Not only is it free exposure and advertising to a mass audience, but when it comes to fan vids for various subjects/shows/movies it’s actually hitting an audience that is IMMEDIATELY more open to the content than the average joe.
Putting it to, say, family pictures or memories only solidifies the song in one’s heart and mind and forms an emotional connection.
And they are so short sighted that they want to take everything down that they didn’t put up?!
I wonder if I should never have made my vid of my little brother and sister?
http://www.youtube.com/watch?v=qx3Dt6fDAYc
Maybe now I’ll get a takedown notice…
…Prince is a walking dildo.
I’ve given up on the music industry completely. I have not bought a single song from anywhere in years. Music studios are all just greedy assholes. Screw them.
If this is not a case of Fair Use, I don’t know what is. I suppose she should have dressed her baby in Purple, with a toy guitar and called it a parody, which by the way, is also considered Fair Use. When Artists or Recording Companies cry wolf like this, it only makes it more plain to all that perhaps a law requiring them to compensate people (with a ridiculously large sum of money!) for their over-zealous litigation would put a stop to such Gestapo-Like tactics.
I get melodies from God. I call them “angel bootlegs”. I put words on them. Those angels are super smart and that’s all they do all day and they’ve been at it for millions of years 😉
http://www.losethos.com/songs1.html
http://www.losethos.com/songs2.html
http://www.losethos.com/songs3.html
http://www.losethos.com/songs4.html
http://www.losethos.com/songs5.html
The whole point of the government protecting works for a limited time would be to foster invention and trade protections. After that short time the nation or world should be free to own the works. Sadly the newer laws may never allow the taxpayers to benefit from their investment. The corporations have blinded lawmakers to what a copyright should be for.
Copyright as it should be:
50 years after first publification or immediately after the death of the original author, all of his works loose copy protection.
This allows the artist to make a living doing his work, without unfairly denying the public its rights.
Perpetual copyright as it is currently fact will lead to a complete standstill and huge cultural loss.
The works of Mozart, Bach, Tchaikowski and others would never have hade a chance of being written, if copyright had existed in todays form in those times.
Also lots of today’s artists take melodies from the old masters, rephrase them, and make something new out of them. And ironically this is the most secure way to not run into infringement problems.