Dispute a video takedown notice?
March 31, 2009 10:27 AM   Subscribe

A home video of mine was taken down from Google Video by Warner Music because of the soundtrack. Should I dispute?

The copyrighted song was someone else's content; however, it was used in a noncommercial nature, i.e. a video of my 6-month old daughter.

Only a part of the song was used, and the video itself was unlisted and therefore unavailable to anyone save friends and family receiving a direct link via a personal email.

I'm a little afraid because by disputing the video I'm legally exposed to this: "If, on review, the alleged copyright holder believes that your video infringes on its rights, expect that they will file a notification of alleged infringement under Section 512(c)(3) of the Digital Millennium Copyright Act."

So, dispute or no?
posted by infinitefloatingbrains to Technology (40 answers total) 3 users marked this as a favorite
You used a copyrighted song without permission. Why would you dispute?
posted by nitsuj at 10:30 AM on March 31, 2009

Noncommercial, short clip, just for family - doesn't matter. It's still a violation of copyright. There's nothing to dispute, as silly as it may seem that they even care about this particular use.
posted by katillathehun at 10:32 AM on March 31, 2009

Response by poster: Because it was fair use?

As defined by Copyright Act of 1976, 17 U.S.C. ยง 107:

1. the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

2. the nature of the copyrighted work;

3. the amount and substantiality of the portion used in relation to the copyrighted work as a whole;

4. and the effect of the use upon the potential market for or value of the copyrighted work.

posted by infinitefloatingbrains at 10:33 AM on March 31, 2009

Now would be a good time to explore the music available under a Creative Commons License and music in the public domain.

Do not challenge this. You have no standing. Start listening to the little guys and exploring your freedoms.
posted by unixrat at 10:34 AM on March 31, 2009 [1 favorite]

As I understand it, fair use doesn't cover this. It is meant to cover things such as a teacher using part of a song to demonstrate something in a classroom, or a news story playing a clip of a song in a news story about that song. Just because you are not using it for commercial purposes does not make it a situation of fair use.
posted by markblasco at 10:36 AM on March 31, 2009

This is not legal advice, I'm not a lawyer and certainly not yours, etc. But it doesn't sound like you fell within the bounds of what's currently understood to be fair use. The Wikipedia article has a list of common misunderstandings that's a good place to start.

While you may feel that the circumstances (noncommercial use, not using the whole song, only providing the link to friends and family) make your use of the music ethically sound (and you may have a point), it still sounds like Warner is well within their legal rights to obtain this takedown.

In this case I think the most sensible thing is just to find a new soundtrack, because I don't think you have a legal leg to stand on in this dispute.

Also, simply because the Copyright Act lists the factors you quoted as criteria in a determination of fair use does not mean that fair use automatically applies whenever the factors comes into play. Furthermore, "nonprofit educational purposes" are very different from simple "noncommercial" purposes.
posted by musicinmybrain at 10:37 AM on March 31, 2009

From that Wikipedia link:

In August 2008 U.S. District Judge Jeremy Fogel of San Jose, California ruled that copyright holders cannot order a deletion of an online file without determining whether that posting reflected "fair use" of the copyrighted material. The case involved Stephanie Lenz, a writer and editor from Gallitzin, Pennsylvania, who made a home video of her 13-month-old son dancing to Prince's song Let's Go Crazy and posted the 29-second video on YouTube. Four months later, Universal Music, the owner of the copyright to the song, ordered YouTube to remove the video enforcing the Digital Millennium Copyright Act. Lenz notified YouTube immediately that her video was within the scope of fair use, and demanded that it be restored. YouTube complied after six weeks, not two weeks as required by the Digital Millennium Copyright Act. Lenz then sued Universal Music in California for her legal costs, claiming the music company had acted in bad faith by ordering removal of a video that represented fair-use of the song.[23] Warner Music Group has followed suit, ignoring fair-use and deleting any video with music that they have rights over--no matter how big or small the audio clip is.
posted by nitsuj at 10:41 AM on March 31, 2009

Stanford University Libraries have a site devoted to fair use and copyright. Their Fair Use Overview is particularly informative.

Fair use is not a black and white issue, and the ultimate arbiter of whether something is fair use is a judge.
posted by zippy at 10:49 AM on March 31, 2009

Response by poster: Ok, so I looked up more on Stephanie Lenz and found this.

People are recommending that I don't dispute, yet this makes me think that I'm well within my legal bounds to dispute the takedown. Still not sure what to do....

In any case - thanks for the answers, much appreciated.
posted by infinitefloatingbrains at 10:52 AM on March 31, 2009

What's your motivation? Do you just want to get your video back online? Do you want to change the law books? If the former, re-upload to another site like Vimeo.
posted by nitsuj at 10:58 AM on March 31, 2009

A song playing in the background is a little bit different than a soundtrack. I'm not saying you're wrong, but I can tell you that I took an entire class on copyright law when I was in grad school and ended the semester more confused than I started.

And as irritated as you are, unless you've got a lot of cash sitting around, this certainly isn't worth fighting.
posted by bluedaisy at 10:58 AM on March 31, 2009

watercarrier's link does describe fair use, but while amusing, may cause headache. I recommend starting at 6:20 for the part about fair use.
posted by Salvor Hardin at 11:07 AM on March 31, 2009

BTW -- in the past week friends/family who have used WMG music in their "home movies" have had their soundtracks stripped at YouTube.

Check out the following regarding the current dispute between WMG and Goggle/YouTube:
As Rights Clash on YouTube, Some Music Vanishes.

Warner Music Targets Personal Renditions On YouTube.

YouTube Filled With Sounds of Silence.

YouTube Takes Down Thousands of Fair-Use Videos.
One issue at the core of the dispute is what constitutes "fair use" when applied to amateur, consumer use of songs and snippets as background soundtracks to their videos.
posted by ericb at 11:13 AM on March 31, 2009

posted by ericb at 11:14 AM on March 31, 2009

Response by poster: This is from the EFF site in regards to Warner's takedowns:

For most YouTube videos, however, a good place to begin your analysis is to ask the following questions:

Is my video transformative? Is it noncommercial?
Is my work a substitute for the original? Will people still want to buy the original after seeing my video?
How much of the original work did I take, both quantitatively and qualitively?
Was the purpose of my use noncommercial, educational, for the purpose of research?
If my use were to become widespread, would it harm the market for or value of the orginal work?

My motivation is this: over the last couple of years I made several of these videos of my daughter growing up, using music from various sources, and if this first one is taken down, then it follows that the rest will get flagged sooner or later. I need to figure out the best course of action for the future, so I can continue to share them with family.

I guess you're right, they should be taken down and put up on another site. That way, instead of fighting the beast head on, I just sneak around the side and let them continue hitting themselves.
posted by infinitefloatingbrains at 11:14 AM on March 31, 2009

The best course of action is to use music that isn't copyrighted. That way, instead of fighting the beast head on, you don't give the beast any need to eat you at all.
posted by katillathehun at 11:22 AM on March 31, 2009 [4 favorites]

You can also not use public websites to post your videos. Just grab yourself a flash player and some hosting, and you're good to go. Note: this is mostly "security through obscurity" and does not solve your legal issues, although it solves your practical issues.

Otherwise make sure to keep backups of your videos!
posted by shownomercy at 11:33 AM on March 31, 2009

"Failed efforts to reach a licensing agreement with Warner Music have led YouTube to unceremoniously yank thousands of user-created videos from the site. YouTube is required to follow intellectual property rights laws, of course. However, critics of the move contend the creators' use of content in many of the videos is allowable under the so-called fair use doctrine, which has made a regular appearance in digital content lawsuits over the last decade.

...YouTube's latest action has reopened the debate about fair use -- both in terms of its fairness as a legal concept and as a possible public relations tool in negotiations.

Until December of last year, posters to YouTube could use copyrighted music owned by Warner Music under the terms of the license agreement that Warner and Google, which owns YouTube, had negotiated. However, the two could not come to mutually satisfactory terms over the renewal.

That failure led YouTube to recalibrate its Content ID tool, which automatically identifies illegal content that users are attempting to post or already have posted to the site. As a result, thousands of user-created videos were pulled or their audio was muted. One was a teenager singing 'Winter Wonderland' while accompanying herself on the piano, which would be a fair use of this copyrighted song, according to the Electronic Frontier Foundation.

...The Content ID application does offer users options to protest if their video falls under fair use, Von Lohmann acknowledged, but that does little practical good. 'Many YouTube users, lacking legal help, are afraid to wave a red flag in front of Warner Music's lawyers. That's a toxic combination for amateur video creators on YouTube.'

There are other layers to this story [more]..."
Since this is a recent action, some expect the soundtracks to be restored once WMG and YouTube come to agreement on their rights negotitation.
posted by ericb at 11:33 AM on March 31, 2009

I'm going to go against the grain here and say to dispute this. IANAL, but I deal with copyright and fair use on a daily basis, and the Fair Use factors are for ANY use of copyrighted material, not just educational use. While I haven't seen the video, the possibility of it having a commercial effect on the work in question is nearly zero, and it is a non-commercial use itself. You don't have to have all four factors in your favor, just a majority of them...and you didn't use the whole song to begin with.

One of the biggest reasons to dispute this is that Fair Use is constantly being whittled away by rights holders, who like to assert more rights than they actually have vis a vis US Copyright Law. Contact the EFF, give them the lowdown, and see if they think you have a case. This is, IMNSHO, over reaching by Warner of the most overzealous type. IANAL, and this isn't legal advice...just the opinion of someone who is really fed up with the loss of Fair Use.
posted by griffey at 11:34 AM on March 31, 2009

IAAL, IANYL. The EFF questions aren't bad, but it's not as if the answers to those questions necessarily mean that use is or is not fair use. That should be clear by now given the links provided here.

For your kind of situation, the answer to this question: "How much of the original work did I take, both quantitatively and qualitively?" is often, 100%, or, some significant portion quantitatively. To me, that makes it hard for you to fall into fair use. You're within your legal bounds to dispute the takedown, but that will probably result in more headaches for you, and maybe even some legal fees or DMCA damages. If you insist on trying to fit your infringement into some tortured definition of fair use, you might as well take your infringement underground to avoid further headaches.
posted by iknowizbirfmark at 11:36 AM on March 31, 2009

this battle isn't
worth fighting.

You're guilty here.

Ultimately, any copyright
dispute comes down to
a judge looking over
the evidence.

But by the time it gets
to that judge, you might
be bankrupt. If, however,
you are willing to become
poor for 'principles',
then by all means.
posted by Sully at 11:37 AM on March 31, 2009

You have three possibilities:

1. Fight it because the video is important to you and there are no other possibilities for you to disseminate it. This will possibly be long, difficult, and expensive.

2. Fight it because you believe that the copyright holder is trampling people's fair use rights, and someone has to stand up to them. This will possibly be long, difficult, and expensive.

3. Capitulate, and maybe repost the video without the offending music. This is easy.

The music companies depend on people choosing option 3 for the same reasons that most people recommend you take it: this is the path of least resistance. But as someone upthread mentioned, the path of least resistance may, on the long run, end up eating away at the concept of free use.

(For the record, I would choose option 3.)
posted by Simon Barclay at 11:43 AM on March 31, 2009

Best answer: If the former, re-upload to another site like Vimeo.

I just did that with a couple of "silenced" YouTube videos ... and they work fine at Vimeo.
posted by ericb at 11:55 AM on March 31, 2009

Response by poster: In any case, I just donated to the EFF and also emailed them to see what other people were doing in this situation.

Normally I do take the path of least resistance but these videos are extremely important to me and are now part of my family history, and a lot more would be in line for takedowns. If Warner goes after YouTube, why wouldn't they hit Vimeo next?

Will try and keep this updated with any progress.
posted by infinitefloatingbrains at 12:06 PM on March 31, 2009

Normally I do take the path of least resistance but these videos are extremely important to me and are now part of my family history, and a lot more would be in line for takedowns. If Warner goes after YouTube, why wouldn't they hit Vimeo next?

Right, so the solution is not a protracted legal battle where everyone burns everything to the ground over 30 seconds of music.

Use Free Music (as in freedom). Stop giving your ears and your dollars to entities that are looking to destroy you.
posted by unixrat at 12:11 PM on March 31, 2009

Background in the recording or added in as a soundtrack?

Regardless, although I would think that the former is more in keeping with fair use, is more incidental, you probably could win a case against Warner on this given the facts you have stated. The factors are to be balanced, winning three out of four is nice but not enough if factor four is more important in a given situation. Here you have a non-profit use, of less than the entire work, in such a fashion that it would not have any effect upon the market for the work. The nature of the work is not necessarily in your favor as it is a copyrighted commercially released recording. On the whole it would seem to be a fair use to me, but I am not the judge.

So, let's say you are right, and Warner is wrong, then what? You can file a counter notice but this probably puts you in the sights of the Warner lawyers and gets you sued for copyright infringement. Lawsuits in Federal District Court are expensive and they will likely seek statutory damages at the maximum level. This is a lot of expense and risk to take on to prove a point. Maybe EFF will take your case though.
posted by caddis at 12:27 PM on March 31, 2009

Response by poster: Obviously no one wants to get into a protracted legal battle - if that was the case then I would run far from this. But so far, everything I've read points to a simple solution. Once I hear from the EFF that it is ok to dispute the takedown because I have a right to fair use, then I'll do so.

They hang the nuclear option over your head because it saves everyone a lot of work, and its in their financial best interest to do so. So far there has been no documented case of Warner suing a YouTube member who posted something like this. There is even less downside to just asking the EFF how to proceed. So why not just find out?

And free music? I'm sorry, but sometimes there is a perfect song for a something that I've made - its a personal, creative choice. Those entities like Warner aren't looking to destroy me, they're just flailing about, trying to survive. And sometimes a dumb ContentID spider hits a video like mine and doesn't differentiate.
posted by infinitefloatingbrains at 12:29 PM on March 31, 2009

Obviously no one wants to get into a protracted legal battle - if that was the case then I would run far from this. But so far, everything I've read points to a simple solution. Once I hear from the EFF that it is ok to dispute the takedown because I have a right to fair use, then I'll do so.

What? No. What are you reading that suggests a simple solution? If you try to dispute the takedown, you're probably not going to get anywhere. You'll probably never heard from EFF - you do realize that there are thousands of people who are pissed because their baby can't dance to copyrighted music on YouTube, right? There will probably have to be litigation to get further. You initiate it or they initiate it. Either way it doesn't sound like that will be a good situation for you. EFF probably won't want your case, because your facts aren't as good as some of the good fair use cases they are asked to address.

The path of least resistance here is clearly to stop distributing the videos. Your fair use argument sounds very weak to me. It's also clear to me that you don't really buy into the concept of copyright holders being at all able to prevent you from using their IP, so maybe you should try to make an example of yourself and see how well you do based on those beliefs.

Will try and keep this updated with any progress.

Yeah, please do. I for one can't wait to hear how this argument sounds in court or a brief: em>And free music? I'm sorry, but sometimes there is a perfect song for a something that I've made - its a personal, creative choice.
posted by iknowizbirfmark at 1:11 PM on March 31, 2009 [1 favorite]

Sorry, borked the italics on that last quote, should have quoted:

And free music? I'm sorry, but sometimes there is a perfect song for a something that I've made - its a personal, creative choice.
posted by iknowizbirfmark at 1:13 PM on March 31, 2009

Response by poster: you don't really buy into the concept of copyright holders being at all able to prevent you from using their IP

In this case, why should they? I paid for the song and am not making any kind of profit.

I work with artists who are paid for commercial reuse of their work. Part of my livelihood depends on it. I respect copyright and everything that comes with it.

But I fail to see how it is at all justified for me to be sued for using a song on a home video. Its like being sued for making a mix tape that you play at your dad's birthday party.
posted by infinitefloatingbrains at 1:42 PM on March 31, 2009

I had the same problem last year with a family video at Google. In my case, the video had zero views because I didn't like the quality of the encoding at Google and ultimately uploaded the video to another site. So in my case, I had a video that may have been protected under fair use, that had never been viewed by anybody, and was not available for viewing as it was marked private. I chose to never again put a video on Google. I've been using Viddler and have not had a problem.
posted by COD at 1:42 PM on March 31, 2009

Best answer: There was an interesting case recently when Kevin B. Lee, the curator of Shooting Down Pictures, a site that includes a series of critical video essays that relied on extensive quotations from feature films, saw his video-posting account suspended after one too many DMCA complaints were sent to YouTube. I'm mildly surprised nobody posted the whole saga to the blue, but long story short -- Lee filed a DMCA counternotice citing his fair-use rights and his account, along with all of his videos, were reinstated.

I am certainly not a lawyer, and you could argue that Lee's clips constituted a much more transformative use than the kind of home video under discussion here. But it goes to show that you don't always have to roll over. Here's Lee's blog entry posted after the whole thing was over.
posted by Joey Bagels at 2:05 PM on March 31, 2009

I'm not trying to be rude here, but - you'd feel differently about the situation if it were your music lots of people were using.

I'm not sure the courts have really settled the issue of what we own when we buy music. Do we then own the music? Do we only own the plastic the music came on (in the case of CDs)? I can't even imagine how thorny that issue is in terms of digital music.

Frankly, I wish someone with deep pockets would fight it. It would be helpful for everyone to have these issues settled once and for all.

Until Wall Street hit the front page news, I thought there couldn't be anything more evil than record companies.
posted by 2oh1 at 6:06 PM on March 31, 2009

I'm not trying to be rude here, but - you'd feel differently about the situation if it were your music lots of people were using.

So, you are say even some asshole no talent yet wildly popular band like Metallica which hates downloaders, why do you hate people who love your music so much they imbue their family stories with it? If you even mildly agree with Warner on this you deserve all the scorn an angry fan base can generate. I have stronger words, yet somehow I restrain them. I won't buy your crap, and even if I like it I will steal it rather than pay you, and I generally would much rather pay the artist. With Metallica though it is easier, because in addition to their crappy anti-fan attitude they completely lack talent. They are Kiss without the make-up. Anyway, if you have made a song that motivates fans to associate your art with their emotions, their family, their life, well you should be satisfied, not angry, when they follow through, you low rent bastard.
posted by caddis at 7:01 PM on March 31, 2009

An interesting aspect here is seeing that people given the choice between finding a song with no copyright/ownership barriers or using one belonging to a greedy industry, people will fight to use the song they know best because of said industry's advertising/promotion efforts.

Word of mouth and personal use are how the independent, generous artists get exposure. I understand your attachment to songs that are meaningful to you, but it seems like a much more meaningful rejection of the industry threatening you to find new favourites outside of their clutches.
posted by batmonkey at 9:52 PM on March 31, 2009

Response by poster: There really aren't any precedents on how to respond to something like this. The courts generally react to new developments in copyright law very slowly. The EFF responded to my email by basically saying 'check out the guidelines on this page, other than that, you're on your own.'

It was great to read the link above on Kevin B. Lee, about how he stood up for his videos. Of course, he had tons of support from other prominent lawyers, writers, filmmakes, etc. But the manner in which the videos were immediately reinstated points to them being taken down mistakenly in the first place.

Warner is not as bad as everyone makes them out to be - their contentID spider is just dumb, and everyone who had their videos pulled for the wrong reasons are too scared to stand up to them, no matter how ridiculous the copyright claim may be.
posted by infinitefloatingbrains at 8:35 AM on April 1, 2009

Best answer: The courts generally react to new developments in copyright law very slowly.

Do you understand how the US legal system works? Do you understand that the "copyright law" is made mostly by courts' interpretations of a few statutes and many, many past cases?

There is a lot of misinformation in this thread, and leaving it as is is a disservice to those who might later come across it. I don't want to get into a tit for tat, and this will be my last post, but I must respond to your false conclusory statements.

There is plenty of precedent on how to respond to a DMCA takedown notice. If you think that you have a valid fair use defense, pursue it. Assert your rights. That is what Kevin Lee did. The fact that he was successful has much less to do with the people supporting him and blogging about it than it does the fact that he had a pretty good fair use defense - his work was transformative, he was only using partial clips, his commentary on films presumably encourages legal use of them instead of replaces it, etc. Media companies don't want to get into fights with people like him - he is informed, knows where he stands and is able to respond to the takedown notice within the legal framework that governs copyrighted works. Media companies want to fight people like you - unrepetant infringers who try to justify what they are doing without an understanding for copyright law.

It seems that you used Warner background music in a way which every serious commentator agrees requires a sync license. You could have done it without it, and had no music on your clip, or had licensed music, or had your own music. You say that you didn't want to use something else because this music fit so well. Your fair use defense is weak. Despite your earnest attempts, EFF has no interest in pursuing it, because they hear 1000 complaints like yours everyday, from other people who are as offended as you are that they can't use the intellectual property of someone else in any way that they want to.

Stop trying to turn your situation into something that it's not. You're not a fair use pioneer, you're a person doing something which hardly any serious commentator would consider to be fair use. You may think that Warner's contentID spider is dumb, but it is doing exactly what it is intended to do - finding infringing use of their copyrighted music and stopping it. The issue of whether they should have to determine whether an infringer has a fair use defense prior to issuing DMCA takedowns is unsettled, but even if they do, your situation is not really close to the fair use line, so they will likely always continue to takedown videos like yours.

Sure, the large media companies are assholes, and engage in questionable tactics, but they're doing so because millions of people have stolen their IP for years. It's too bad that some innocent people get caught in the crossfire, and I am glad that the EFF is around to protect their rights. I'm also glad that the draconian tactics taken by large media companies are backfiring on them. But let's see this for what it is. No matter how much you repeat your assertions to the contrary, Warner's copyright claim is not ridiculous - it's your flagrant violation of their copyright and indignant assertions that you are engaging in fair use which are ridiculous.
posted by iknowizbirfmark at 9:24 AM on April 1, 2009 [3 favorites]

Response by poster: Thanks for your comment; you've convinced me. My judgement was partially clouded by the personal nature of the videos, and general ignorance of copyright law. Fair use is interpretive so its easy to find exactly what you're looking for. At this point, I see that disputing is senseless.

Sadly and at great personal expense, I will make sure that for my daughter's 2nd birthday at Chuck E Cheese, we will send a check in advance to the ASCAP before we sing happy birthday. I'll film the party but make sure to get a location release from the restaurant, and get parents to sign for their children's model releases since they're standing around the cake. Any and all identifiable logos in the video will have to be tracked down and paid for. Then I'll contact an attorney to request a synchronization license before I add any music to the video. Finally, we'll be able to all sit around the TV with grandma and watch this memory without fear of being sued into bankruptcy.

You've saved me a great deal of money. Thank you.
posted by infinitefloatingbrains at 12:19 PM on April 1, 2009

Regarding "happy birthday" - Copyright and the World's Most Popular Song, "... it is almost certainly no longer under copyright, due to a lack of evidence about who wrote the words; defective copyright notice; and a failure to file a proper renewal application."
posted by dabitch at 12:54 AM on April 2, 2009

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