Taken down from YouTube? EFF wants to help

The Electronic Frontier Foundation's Fred von Lohmann has a scorching post up about YouTube's complicity in allowing giant entertainment companies to censor user videos, first through the use of a fault-prone automated identification system, and second through the willful bullying of Warner Music.

EFF's had enough -- they want to hear from people who've been unfairly taken down from YouTube, find some likely plaintiffs, and get some action going in court:

First, YouTube should fix the Content ID system. Now. The system should not remove videos unless there is a match between the video and audio tracks of a submitted fingerprint. When we made this suggestion in October 2007, YouTube assured us that they were working on improving the tool. Well, it's been more than a year. If YouTube is serious about protecting its users, the time has come to implement this fix. (Some will point out that this implies that record labels and music publishers can never use the Content ID tool to remove videos solely based on what's in the audio track. That's right. I think that adding a soundtrack to your home skateboarding movie is a fair use. If copyright owners feel differently, they can send a formal DMCA takedown notice, and with any luck, we'll see each other in court.)

Second, YouTubers, EFF wants to help. If Warner Music Group took down your video, ask yourself if your video is (1) noncommercial (i.e., no commercial advertisements or YouTube Partner videos) and (2) includes substantial original material contributed by you (i.e., no verbatim copies of Warner music videos). If so, and you'd like to counternotice but are afraid of getting sued, we'd like to hear from you. We can't promise to take every case, but neither will we stand by and watch semi-automated takedowns trample fair use.

YouTube's January Fair Use Massacre

• [Gareth Stack]

  I’ve had a very similar situation involving Interscope records (Universal Music Group, rather than Warner); explained here in detail – http://dbspin.com/censorship/cheated-by-the-dmca/.

  In brief, my friends and I contributed to the fan made Yeah Yeah Yeahs video, ‘Cheated Hearts’, and in addition (along with many others) produced our own ‘fan edit’ of the footage we’d filmed combined with the Yeah Yeah Yeahs track. The Yeah Yeah Yeah’s used some of our footage in the final video – and sent us a ‘special prize’ in return – a couple of stickers and badges. A year later, YouTube killed the audio in our fan version, in response to a DMCA claim by UMG.

  I wrote to the EFF at the time, but was told that if I made a DMCA counter claim I held myself open to legal action.

  Would the EFF now be willing to help? Or does the fact that it was UMG rather than Warner mean they’re still not interested? There’s no email address listed at the bottom of the EFF post, so perhaps someone from the organisation could respond here, or at http://dbspin.com?

• [arkizzle]

  Oren

  IANAL either, but I believe that “failure to sue” is somewhat of an industry myth.

  Do you remember the Black Mustang Club debacle? In the comment thread, Monseigneur Doctorow roundly disputes the claim, rather neatly.

  “Kleenex is still trademarked, despite the fact that it is routinely used in the generic sense. That’s because the failure to enforce one’s mark against the public *does not mean you lose your mark.*
  This is just a fairy tale told by trademark lawyers.“

• [Anonymous]

  This is quite unfortunate. I love watching YouTube videos with just music playing overtop.
  I have heard some pretty amazing music out there. On more than a handful of occasions, I have found that the music playing is a must in my own library!
  I would find out the song and then purchase the song, (once, the whole album and then some).

  I found it to be a great tool to hear new music from literally ‘around the world’

  I refuse to go back to the radio!!!!!
  At least there’s still myspace music (fingers crossed) :)

• [jordan314]

  I’m a film music student and we routinely take out the audio from movies and replace them with our own scores. My classmates and I have tried uploading our work to add to our portfolios and have had them taken down by youtube. I emailed the EFF to see if this would qualify as fair use.

• [Anonymous]

  I received a take down yesterday. It was just me messing around on my iPhone. Glad this article came up on my feed. I sent an email to EFF. Hopefully, they can help.

• [Oren Beck]

  IANAL.Etc..

  To me this is the typical “The big guy does it because they can” on first glance. There’s a dubious logic called “failure to defend” used about Patent/Copyright/Trademark issues. Bluntly applied? It’s held as arguable that failure to sue implies lack of diligence in protecting the infringed item/s. I did say the logic is dubious at best?

  Where this sort of persecuting trivial cases becomes a hard fail is in that “Hearts&Minds” area of a consumer economy. Eventually the customer base *WILL* say a collective WtF?? And then the offending companies get the backlash. It’s due only to the inertias involved that it’s not yet gone POP. The industry players lacking a clue might not get it in time either. See- the meme of “no such thing as bad publicity” never was fully so. And it’s less so in a reputation affected economy.

• [sg]

  #7, I’m going to be an IP lawyer. I’ll grant you the “failure to defend” principle w/r/t trademarks, but it doesn’t apply to copyright or patent. And this isn’t about trademarks, it’s about copyright. The DMCA runs roughshod over the fair-use rights non-commercial users, and it is long past time for the public to demand better protection for participatory culture.

• [Anonymous]

  I’m glad to hear someone is finally doing something about this BS. I made a couple of videos for a class, and we were required to put them on YouTube so we could view them all in class. No profit whatsoever from these, not even using the entire song WMG is whining about, and more than likely giving them more exposure (especially in my case where I was using a rather obscure track owned by WMG) which you’d think they’d be happy about, all things considered. I sat there and wondered, after my video had been taken down (note: 100% original content save for the music tracks) how exactly WMG found this video to whine about in the first place. Do they seriously hire hundreds of people to trawl through the most inane videos on YouTube in order to exact their vengeance? What do they think they’re gaining through this? Certainly not business anymore!

• [victhortheviking]

  I filmed a band at a show. The band had the videos on their myspace page and dug the videos, youtube still took them down. The artist don’t own the music anymore.

• [caipirina]

  What about youtube’s latest new trick: not taking down the video? But the audio only? .. i have that on one of my kid’s videos http://www.youtube.com/watch?v=3gEmnfTk3Kk

  Compare with music version http://www.nacken.com/movies/sleepeater.mov

  So, is this fair use? It is non commercial … is WMG correct in turning my clip into a silent movie? Would Tony Bennett really mind?

• [JJR1971]

  Tony Bennett might not mind, but his record label will (unfortunately).

  Facebook did a takedown of our High School Video yearbook (1989) for using Rod Stewart’s “Forever Young” in a video-montage sequence. Bastards.

  It’s not as though I wouldn’t pay a nominal licensing fee, either, I would, but current prices are simply highway robbery, especially for noncommercial hobby-horse stuff…why should I have to pay the same price as George Lucas or Stephen Spielberg?

• [JJR1971]

  INAL, but unfortunately Caipirina, I’d wager that it doesn’t fall under fair use, as currently defined, not even under the Copyright Act of 1976, let alone the DMCA. It sucks, it’s stupid, but it’s still the law, sadly. Talk to your congressional rep. & senators, that’s the only way this is going to change.

• [Anonymous]

  Some will point out that this implies that record labels and music publishers can never use the Content ID tool to remove videos solely based on what’s in the audio track. That’s right. I think that adding a soundtrack to your home skateboarding movie is a fair use.

  Let me agree with you, and suppose for a moment that adding a soundtrack to your home skateboarding movie is fair use.

  But that is not what you are calling for! You said, “First, YouTube [sic--I think you mean Google] should fix the Content ID system. Now. The system should not remove videos unless there is a match between the video and audio tracks of a submitted fingerprint.”

  This means that if someone just want to share/broadcast a copyrighted audio file, all by itself, all they have to do is attach the audio to some blank/blackscreen video. And then it won’t exactly match any video+audio combined content in the Warner Music database, and thus will pass any Google filters. Are you making the claim that this audio+blackscreenvideo is fair use? Because that is the technological solution that you are proposing, and claiming as fair.

  I just want to be clear that this is what you are saying.

• [stanfrombrooklyn]

  I’m confused. Is YouTube no longer a private company able to do what it wants?