MediaPost Publications Copyright Lawsuit Allowed To Proceed Against YouTube 04/23/2009

MediaPost Publications Copyright Lawsuit Allowed To Proceed Against YouTube 04/23/2009 

Copyright Lawsuit Allowed To Proceed Against YouTube

by Wendy Davis, Yesterday, 7:00 AM

A federal appellate court has rebuffed a request from Google's YouTube to dismiss a copyright infringement lawsuit on the narrow ground that the plaintiff in the case, videographer Robert Tur, voluntarily withdrew the lawsuit in order to join a pending class-action in New York.

The 9th Circuit Court of Appeals ruled last week that Tur's decision to drop the California case rendered Google's appeal moot. Google had argued that the court should decide the matter because a favorable ruling could scuttle Tur's claims in New York.

The appellate court also denied Google's request that Tur pay the company more than $370,000 -- the amount Google said it spent defending itself in the California matter. The 9th Circuit ruled that Google had not adequately documented its legal costs. "The district court had no way to distinguish between useful and non-useful work based upon the conclusory affidavit submitted by YouTube's counsel," the appellate court wrote.

A Google spokesperson said the company was disappointed with the decision. "We are disappointed that Tur was given a second chance to pursue his frivolous claims in another venue, but we remain confident that they are without merit and we will continue to defend against them vigorously," the company stated.

Three years ago, Robert Tur, who owns the Los Angeles News Service, became the first person to sue YouTube for copyright infringement after a video of the beating of Los Angeles truck driver Reginald Denny surfaced on YouTube.

YouTube moved for summary judgment on the ground that it was immune from liability under the Digital Millennium Copyright Act's "safe harbor" provisions. Those portions of the law say that sites like YouTube usually can't be found liable for copyright infringement based on material uploaded by users, as long as the sites remove infringing material at the owners' request.

U.S. District Court Judge Florence Marie-Cooper denied that request in June 2007, stating that she needed more information to determine whether YouTube qualified for the safe harbor provisions. "There is insufficient evidence regarding YouTube's knowledge and ability to exercise control over the infringing activity on its site," she wrote.

Tur is now one of the plaintiffs in a potential class-action lawsuit pending in New York against Google/YouTube. Others include a U.K. soccer organization, a French tennis association and the National Music Publishers' Association. For now, that lawsuit is proceeding side-by-side with Viacom's copyright infringement case against YouTube.

Google has said that that the Digital Millennium Copyright Act doesn't require it to proactively seek out infringing clips and remove them. Rather, it argues, the law only requires Google to remove copyrighted material upon request.

But content owners say that Google is in a better position than them to know what's on the site and delete infringing clips. "The major hurdle facing our clients is that the cost of monitoring the huge YouTube Web site is prohibitive," said Tur's attorney, Hal Shaftel, a partner at Proskauer Rose.

MediaPost Publications Copyright Lawsuit Allowed To Proceed Against YouTube 04/23/2009

Hey, Warner, Leave those Kids Alone | Electronic Frontier Foundation

 

Hey, Warner, Leave those Kids Alone

Commentary by Corynne McSherry

Last month we reported that Warner Music Group was using YouTube’s Content I.D. (aka Video I.D.) tool to effectively censor myriad fair uses. We asked people to contact us if they needed legal help and put up a YouTube removal primer to give folks information about their options. As a result we’ve seen beautiful film montages set to music, videos to assist the hearing impaired, and many other examples of amazing artistic talent that have been censored by Warner Music.

But it turns out the problem is even worse than we thought. One way to check Warner’s abuse is for fair users to challenge improper Content I.D. takedowns. But very few are willing to do so, because they are afraid of the consequences.

Why are people scared? Because our broken copyright system leaves them facing the prospect of paying outrageous statutory damages and even possibly Warner's attorneys' fees if they stand up, fight back and, despite overwhelming odds in their favor, lose. It’s a gamble with their life savings that most people just aren’t willing to take, even when their works are clear fair uses and even if EFF gives them free legal help.

Of course, it’s hardly in the interest of a copyright owner to sue a creator who has engaged in an obvious fair use. In fact, we’re not aware of any content owner ever suing an individual YouTube user over a remix video. And since Warner is taking the videos down sight unseen, there’s no indication Warner actually objects to any particular video. So these creative, beautiful works are simply collateral damage in Warner’s negotiation with YouTube over revenue sharing. Thus, the Content I.D. tool, in the hands of a careless copyright owner, has helped create the worst of all worlds: incredibly easy takedowns on one side, and an intimidating put-back procedure that seems to invite legal risk on the other.

While YouTube is partially at fault for giving Warner this censorship-friendly Content ID tool, it’s time for Warner to take some responsibility and stop the censorship.

The best thing for Warner to do is to go back to how it treated videos before. The Content ID system should be set to flag possible infringing works and then Warner should have a human review those works before they are taken down. This is, after all, what Viacom (not exactly a softie on copyright issues) does.

At a minimum, Warner should reassure legitimate fair users who want to notify them when the ID tool is overblocking. Specifically, Warner should promise that no one will be sued for simply filing a "dispute" on a Content I.D. takedown. Even after a "dispute" is filed, Warner has the option of using a DMCA takedown notice to target videos that it really objects to, so Warner should give YouTubers comfort by saying they won't escalate straight to lawsuit after a "dispute" filing, without first availing themselves of their DMCA takedown option.

In the meantime, though, we still want to hear from folks who have been targeted by Warner, because if Warner doesn’t stop on its own we still want to intervene in this fight. Before you contact us, take a look at our YouTube removal primer, but if you made a fair use video and you want to fight back, we want to hear from you.

Hey, Warner, Leave those Kids Alone | Electronic Frontier Foundation

EFF to Take Up Fair Use Fight Against YouTube - AppScout

EFF to Take Up Fair Use Fight Against YouTube - AppScout 

The Electronic Frontier Foundation, no stranger to challenging the Web's power brokers, has offered its services to those who have posted videos to YouTube, only to have them removed for alleged copyright violations.

The tipping point? A teenager singing "Winter Wonderland", with lyrics by Felix Bernard, first published in 1934. Bye-bye.

Why the crackdown? "First, it appears that more and more copyright owners are using YouTube's automated copyright filtering system (known as the Content ID system), which tests all videos looking for a "match" with "fingerprints" provided by copyright owners, the EFF's Fred von Lohmann wrote in a blog post.

"Second, thanks to a recent spat between YouTube and Warner Music Group, YouTube's Content ID tool is now being used to censor lots and lots of videos (previously, Warner just silently shared in the advertising revenue for the videos that included a "match" to its music)," he added.

Von Lohmann said the automated Content ID system needs to be immediately fixed, implementing a policy shift that looks for a match between the audio and video track. If such a match isn't there, he argued, the video should stay. The EFF made this point in Oct. 2007, but no fix has been made, he said.

Because of that, von Lohmann argued, the EFF may step in. "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)," he wrote. "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."

EFF to Take Up Fair Use Fight Against YouTube - AppScout

Warner Music vs. YouTube casualties include a banjo-playing 'Star Wars' fan | Technology | Los Angeles Times

Warner Music vs. YouTube casualties include a banjo-playing 'Star Wars' fan | Technology | Los Angeles Times 

Warner Music vs. YouTube casualties include a banjo-playing 'Star Wars' fan

6:32 PM, January 26, 2009

A couple of years ago in a galaxy very, very nearby (OK, it's this one), a Web developer who does contract work for the U.S. Air Force filmed himself playing the "Star Wars" theme song on his banjo.

The banjo player, Will Chatham, from Asheville, N.C., posted the video to YouTube. It amassed 1.5 million hits, 8,000 comments, numerous blog-post references and an offer to play a gig at Lucasfilm's 30th anniversary "Star Wars" party. Oh, plus one notice of copyright infringement.

The notice landed last week, making Chatham one of many casualties of the falling out between Warner Music Group and YouTube. It began last month with music videos from such major acts as Linkin Park and rapper T.I. disappearing from the video portal, then quickly escalated.

Warner, it appears, didn't even warn some of its own bands before pulling clips. Social news website Reddit pointed out that pop rockers Death Cab for Cutie were left with egg on their faces, when links on the band's website began pointing to copyright-infringement notices on YouTube instead of the music videos that once stood in their place. The band's webmaster has since removed the links.

Chatham, who plays in a bluegrass group called the Whappers (no, they're not signed to Warner), is fighting back. Since receiving the e-mail from YouTube regarding Warner's claim, Chatham has filled out copyright counterclaim papers. If Warner doesn't respond within 10 days, YouTube is obligated to put the banjo video back online, Chatham has learned.

He says he can't understand how the innocent clip of him playing his cover version on a couch -- a video that was once chosen by YouTube to be featured on its home page -- could be illegal.

"It's me just sitting there, playing on my banjo," he said. "If someone actually stopped and looked at it, they would be like, Oh, well, that's just some guy being silly."

Neither Warner, nor the company's lawyer, nor YouTube would ...

... comment on the case. But Chatham appears to have been dinged for performing a copyrighted song without permission. The legal definition of "performance" in situations like these remains a gray area and may continue to be until YouTube hobbyists begin to bring these cases to court.

YouTube provides content owners, including Warner, access to

identification tools so they can elect to monetize or remove user's uploads that match the copyright owner's reference material. Warner chose the latter.

Warner says it's working toward negotiating a contract that would put its videos back on YouTube. "Until then, we simply cannot accept terms that fail to appropriately and fairly compensate recording artists, songwriters, labels and publishers for the value they provide," the recording company said in an e-mailed statement.

Chatham isn't alone in his grassroots struggle. Many are expressing their disdain in the form of video rants -- some with more vulgarity than others.

(We apologize in advance for breaking the blogger's code and not linking to the videos we're telling you about, but we've got family-standards rules to follow here at the L.A. Times. But you can see some of them on this TechCrunch post about the YouTube-Warner fight from this weekend.)

One video we could embed is above, by Juliet Weybret, a 15-year-old singer who says her piano-and-vocals rendition of "Winter Wonderland" was yanked because it infringed Warner Music's copyrights. "I'm furious right now," her video begins.

Several other videos condemn Warner Music's decision in unequivocal (and unprintable) terms. One frequently viewed clip features images of former President George W. Bush, SpongeBob SquarePants and Warner artist Madonna extending their middle fingers, while the accompanying text describes the company as a "greedy corporate pig." 

Another video is addressed to the label's executives. A single, typewritten protest criticizes Warner for aggressively patrolling and removing its music videos from YouTube and other online video sites. It also offers some unsolicited advice: "I suggest you lighten up and start being a little more fan-friendly."

One fatigue-clad YouTuber, a 37-year-old who goes by the name Tyger WDR, launches into a six-minute rant that definitely warrants the explicit-lyrics warning he includes at the beginning. He advises other YouTube users to eschew the "very juvenile" extended-middle-finger type protests and express their displeasure like adults -- by complaining directly to Warner Music and YouTube owner Google via fax and e-mail. For good measure, he displays their corporate contact information.

"Let them know that we will not be ignored, we will be heard, and we are not happy," he says.

-- Mark Milian and Dawn C. Chmielewski

Warner Music vs. YouTube casualties include a banjo-playing 'Star Wars' fan | Technology | Los Angeles Times