[Infowarrior] - EFF: YouTube worse than DMCA

[Richard Forno]

April 7th, 2009
EFF's von Lohmann: YouTube worse than DMCA for fair use

Posted by Richard Koman @ April 7, 2009 @ 5:09 PM

http://government.zdnet.com/?p=4570

I passed Jason’s post about getting DMCA’d by Warner Music onto Fred  
von Lohmann at the Electronic Frontier Foundation. You’ll recall that  
Jason and his wife put up on Vimeo a reunion slideshow with several  
tracks of music and that Warner Music Group promptly filed a DMCA take- 
down notice. Fred’s initial reaction:

     Wow. Warner Music really doesn’t know when to quit.

The really sad thing, Fred told me in a telephone interview, is that  
Warner probably doesn’t even object to this use of its content. “Over  
the past several years we’ve seen fair use become collateral damage in  
the war against what the studios call piracy,” Fred said. “A couple of  
years ago we objected when Viacom ordered a take-down of a parody of  
The Colbert Report,” he said. Viacom agreed it was fair use and their  
response was, “When you’re fishing, a couple of dolphins sometimes get  
caught in the net.”

Because the DMCA regime is so biased against fair uses, few people  
would choose to alert the studios as to their existence by filing an  
opposition to a DMCA take-down notice. Still, DMCA does provide for  
users to mount lawsuits against copyright holders who wrongly assert  
infringement. You pretty much need a public lawfirm like EFF to make  
that happen, though. For instance, EFF is suing Universal over the  
infamous baby-dancing-to-Prince video. (Unlike most copyright holders,  
who wind up settling, Universal is taking this case to the mat. And  
EFF is trying to understand their position. “If they’re saying they  
have a zero-tolerance policy, I think they’ve broken the law.”)

Von Lohmann said he’s not aware of a single infringement suit against  
one of these remix users, but who’s to say you won’t be the first? In  
fact, the RIAA litigation against filesharers seems to have a desired  
impact in that it’s made fair-users reluctant to assert their rights  
against these takedown notices.

But as bad as the DMCA is from a fair-use perspective, the far scarier  
thing is that the take-down regime is rapidly becoming extra-legal.  
Exhibit No. 1: YouTube’s ContentID system, an almost entirely  
automated scheme by which apparently infringing content is flagged to  
copyright owners. While Google promotes the notion that owners are  
choosing to monetize rather than block user-uploaded content, when it  
comes to Warner, it seems that the choice is block, block, block.

     “Under the current process, we make YouTube aware of WMG content.  
Their content ID tool then takes down all unlicensed tracks,  
regardless of how they are used,” said Will Tanous, a spokesman for  
Warner Music.

On YouTube, you don’t even have the weak protections of DMCA; you get  
exactly what YouTube’s terms of service let you have. And the chilling  
effect remains. If you’re afraid of being sued, you’re not going to  
make a stink over something that was “just for fun.”

So, we’re in a pretty stuck place. Is there any way out? Fred says EFF  
is pushing for relief on several paths:

     * We’re pressing YouTube to be more protective of fair use. They  
have quite a bit of leeway to protect user interest. We’re urging them  
to match both the soundtrack and the videotrack before flagging  
something as infringing. If they had to match both, Jason’s wife’s  
video wouldn’t have been removed.
     * We’re asking them to take steps to ensure that remixes are  
protected. If ContentID identifies content from provider X and also  
from provider B, then that’s a tipoff that somebody is remixing  
content in a way that is probably fair use.
     * We’ve approached some of the studios to open dialog to try to  
get them to adopt some of these approaches. One major studio has set  
their ContentID settings so that it won’t automatically block anythng  
unless there’s five minutes of contiguous content and both the audio  
and video tracks are identical.
     * The user community also needs to make itself heard. A way for  
people to get this taken seriously is to boycott YouTube in favor of  
another site with better terms. If users would vote with their feet, I  
think YouTube would change their terms.

Richard KomanAs a lawyer and technology writer, Richard Koman brings a  
unique perspective to the blog's intersection of law, government and  
technology. See his full profile and disclosure of his industry  
affiliations.

Email Richard Koman

Subscribe to ZDNet Government via