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Sony Music Issues YouTube Takedown Of Lecture About Music Copyrights By Harvard Law Professor

image from api.ning.comGoogle's Content ID and take down request systems were created to protect rights holders while allowing the maximum amount of content to appear on YouTube. Overall, they 've worked surprisingly well. But sometimes the system is misused or even abused; and all too often that abuser is a major label.

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By Mike Masnick of Techdirt

Oh, the irony. First pointed out by Mathias Schindler, it appears that a copyright lecture about music copyright done by famed copyright expert and Harvard Law professor William Fisher has been taken down due to a copyright claim by Sony Music.

Fisher is well-known in copyright circles and has long advocated for a major reform to copyright to effectively spread a compulsive license to other uses, effectively legalizing file sharing, but with systems in place to still have artists paid. He's detailed versions of this proposal in his book, Promises to Keep: Technology, Law, and the Future of Entertainment. That said, this takedown appears to have nothing to do with that whatsoever.

The lecture itself appears to be a part of his online course, CopyrightX, which is available under aCreative Commons Attribution 4.0 License. Thankfully, on the CopyrightX website, there are downloadable versions of the lectures, so I was able to download and watch the full lecture to see what the takedown was about. If you want to follow along at home, the lecture is the third one in section 3. Section three goes into detail on the "Subject Matter of Copyright," and the third lecture is about… "Music." You can download it here.

The lecture itself is 24 minutes long, and the vast majority of it is dedicated to creating and explaining this chart, which shows (partially) the messy nature of music copyright licensing today (as a side note, I really appreciate that Fisher is so thorough as to include under the table "payola" as a part of this chart):

However, towards the very end of the lecture, Fisher does play a few sound recording clips to demonstrate a point around cover songs and compulsory licenses (along with his personal opinions on the quality of Stevie Ray Vaughn v. Jimi Hendrix). The clips played are all versions of the Jimi Hendrix classic song Little Wing. You've heard it. In the lecture, Fisher plays approximately the first 45 seconds of the song, from 17:44 in his lecture to 18:31. Then, to demonstrate specific points about cover songs, he plays approximately 15 seconds of a cover by Santana and Joe Cocker. Then about 35 seconds of a version by Stevie Ray Vaughn, and finally about 40 seconds of a version by The Corrs. By my count, a little over 2 minutes of the entire 24-minute video are music clips.

Let's be clear here: this is unquestionably fair use. It's not entirely clear to me if this was an explicit takedown or merely a YouTube ContentID match, but either way there is no reason for YouTube to have allowed this to be blocked. If you run through the four factors test of fair use, all four suggest that it's fair use. The purpose and character of the use is clearly for educational purposes, which the fair use part of the law explicitly calls out as an example of fair use. The "nature" of the work is a song, but that seems to have little bearing here on the fair use question. The amount and substantiality of the portion taken was fairly small — basically just enough for Fisher to make his point showing the differences between the songs and how that applies to the compulsory licenses issued for cover songs. And, finally, the effect of the use upon the potential market is nil. No one is listening to Fisher's lecture as a "replacement" for going out and getting the Hendrix song, or any other version of Little Wing. And I don't think there's a huge "market" in "licensing music to copyright lectures."

In fact, considering how frequently we hear the RIAA and other copyright system supporters (especially within the recording industry) arguing that what the world really needs is better education on copyright issues so that the public better understands it, it seems particularly stupid to issue a takedown over a free lecture explaining music copyright. But, of course, no one ever suggested that the recording industry is particularly intelligent in how it goes about fighting its peculiar war.

This story is reminiscent of when Warner Music issued a DMCA takedown on a presentation by another famed Harvard Law professor, Larry Lessig. Similar things have happened a few times to Lessig, including one case where Lessig sued in response, seeking a declaratory judgment of non-infringement along with damages under DMCA 512(f), which forbid "misrepresentations" in filing DMCA notices. That case eventually settled, with the record label (an Australian label called Liberation Music) paying a sum of money that went to the EFF. It's unclear what Fisher will do in this situation, but I imagine that as this story begins to get attention, both Sony Music and YouTube may want to reconsider the original move to take down the video.

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2 Comments

  1. YouTube is a “safe harbor,” which means they don’t get involved with the decision to judge whether or not the copyright claimant has a valid claim or not. So ANYONE can claim that they own anything… a phrase, a title, whatever.
    The chain begins with the copyright holder, who YouTube considers to be ANYONE who alerts YouTube ahead of time to watch for and flag content that the so-called copyright holder has the rights. The process is so abused. For example, I can alert YouTube, ahead of time, to set up a rule to watch for and flag any video content that contains these three words: “My Dog Bob.” YouTube doesn’t question this, but instead, takes my rule seriously. So anyone who has that string of three words in their video title (maybe even description) will be notified that their video content has been removed over a copyright concern.
    This happened to me last year, when I “talked” the lyrics of a song. No music was heard at all… I didn’t even sing. I spoke the lyrics. But, I used a string of three words in the title of my video, which alerted YouTube to take down my video (under 2 minutes of talking the lyrics.).
    I reached out with a very angry attitude about the ridiculous method that they have set-up — I emailed the music company, the music artists, and even the VP of YouTube over copyright issues. I also tweeted them. Within about ten business days, the issue was dropped, and YouTube said I cold use that video.
    Get ready to laugh here: when I put the video back up, they shut it down again! Even after I removed the three words from the title, they shut it down again. You can imagine my intensified attitude when this happened exactly as before — so three business days later, they restored the video. But guess what — I didn’t bother with that particular video again, and it is now buried deep in my archives out of daylight!
    It’s all about YouTube permitting ANYONE to claim ANYTHING as their own; and YouTube follows through and shuts things down and puts the burden on everyone else to settle the matter themselves.
    So, here’s a warning to those who have read this story…. don’t even TALK the lyrics! There are some very bad copyright “holders” out there that will cause a world of mess for you over nothing.

  2. This is the most ridiculous thing I’ve ever heard of… and I’m heard of some pretty ridiculous things. These companies have lost their minds; whatever happened to wanting good publicity? Forget them; I wouldn’t highlight another thing that company puts out… heck, I just might do that, which now means I have to go see what kind of movies they put out to see if there’s anything I’ve seen of theirs lately. Sure glad it’s not the Marvel movies 🙂

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