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Progress in Fair Use Case For YouTube Video

 10:43 am on Aug 21, 2008 (gmt 0)

Progress in Fair Use Case [latimesblogs.latimes.com]For YouTube Video
A federal judge in San Jose handed a victory to fair-use advocates today, refusing to dismiss a lawsuit that a Pennsylvania woman filed after Universal Music Publishing forced YouTube to remove a video of her children cavorting to an old Prince hit. But it may prove Pyrrhic, as the judge expressed doubt that the woman would ultimately be able to prove her case.

The legal skirmish centers on a 29-second video that Stephanie Lenz posted to YouTube last year that features her then-13-month-old son racing around the kitchen. The video includes a decidedly low-fi recording of Prince's "Let's Go Crazy." At Universal's request, YouTube removed the video and kept it off for more than a month, prompting Lenz to sue. Lawyers from the Electronic Frontier Foundation, which represents Lenz, argued that Universal violated the notice and takedown provision of the Digital Millennium Copyright Act, which says copyright holders can demand the removal of their works from the Web if they have "a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law." Because the video was a fair use of Prince's work, the EFF contended, Universal violated the DMCA.



 12:17 pm on Aug 21, 2008 (gmt 0)

I haven't seen the video but since its only 30 seconds and from the description it would certainly fall between the lines of my definition of "fair use".

"Fair Use" is an interpretable law, there is no clear line between what is or isn't "Fair Use". Hopefully the Judge will side with the plaintiffs as this may have more implications than those on the internet such as videographers taping weddings or parties where there is inevitably a band or pre-recorded music playing in the background.


 1:17 pm on Aug 21, 2008 (gmt 0)

The real consequences of this case are trivial, I mean who really cares if there's one more video of some little kid dancing on the Internet. But the argument is significant. I applaud the Pennsylvania woman for seeing this through; I can only imagine the laywer bills being racked up over this... I hope she's got a firm doing it pro bono.

Not mentioned is whether the music was playing in the background as ambient audio as the video was shot, or if it was dubbed (copied) onto the video in post-production. Somehow I feel that makes a difference even if the tangible result is similar.

An important spin on this case is the practice of automatically finding and banning works recognized using "recognition bots". A machine that can recognize a few bars of a Prince tune among millions of media clips is not capable of determining fair use, so their employment for copyright enforcement needs to be tempered with human sense.


 1:58 pm on Aug 21, 2008 (gmt 0)

The woman's use probably is "fair use" if she's showing the video to her family and friends, at home, without charging a fee, but what happens when the same video is played in a public movie theater - a theater that profits by selling candy or by placing paid ads on screen prior to the show, even if "the theater" - Cinemaplex OR Google - doesn't require paid admission tickets?

Does your interpretation of "what is fair use" begin to shift a bit when you can see that someone is intending to profit - make coin - from the performance?

Almost as an aside, I ask: Does the "musical score" add value to "the recorded performance"? Does the soundtrack make the entertainment more entertaining? Is watching a video of a kid, running amuck, funnier if accompanied by a musical score that adds punctuation or color? Without the musical score would the performance be equally "marketable"? Appealing? Entertaining? Therefore, would as many people be drawn to the video without the soundtrack?

I wonder . . Do the blogosphere pundits who who pooh-pooh the music industry's or musician's teeth gnashing about "file sharting" have any objection to people massively copying and redistributing their blog's content?

Would the pundits mind a "written works file sharing system" that cut them out?

Probably not.

Besides, just how popular would that be? :P

[edited by: Webwork at 2:12 pm (utc) on Aug. 21, 2008]


 2:07 pm on Aug 21, 2008 (gmt 0)

I wouldn't refer to it as trivial, would she still be liable for copyright infringement if she sent a copy to her friends and family? If it is deemed copyright infringement any copy and even possibly her own original copy would be infringement wouldn't it?

Not mentioned is whether the music was playing in the background as ambient audio as the video was shot, or if it was dubbed (copied) onto the video in post-production

From previous articles I have read if I remember correctly it was playing on a radio or CD player. Since the kid was dancing to the tune I'd assume it wasn't dubbed.

From my understanding you can't legally use tracks of music you own on CD for your own personal use in videos. Burn it as MP3 and play it on your DVD player and your legit, put it to video and you're breaking the law. Just goes to show how asinine many of these laws are.


 2:20 pm on Aug 21, 2008 (gmt 0)

Webwork - It's a thirty second clip about her and her kid. With a crap-quality Prince song in the background. I don't care how many people see it at your free theatre, that's fair use.

There is a thing similar to your written works file sharing system. I think they called them citations and quotations in college. Basically, you can take an excerpt from a book and, while giving the author credit either on page or in what I guess is called a "bibliography," blatantly use it as a part of your own work. You can paraphrase it, you can make minor modifications. You could technically use the whole thing if you wanted to, so long as you extrapolated your own ideas and theories off of it.

Maybe citations aren't the same thing here, but we are talking about a different form of media. I would venture out on a limb here and say that the song was to set the mood for the video, erego the video is about the mother and her kid. It's a completely legal derivative work. Universal can cram it.


 2:30 pm on Aug 21, 2008 (gmt 0)

npwsol, what is "fair" begins to erode when "profit" is added to the mix. The absence of use for financial gain is one of the foundational blocks of fair use that makes such use acceptable or "fair". I don't think the woman intended to profit by adding a soundtrack to her family video.

But does anyone stand to profit when the woman's recorded performance is transformed from a family video into a form of public entertainment? Therein lies the rub. She may not stand to profit, other than by gaining her 15 minutes of fame, but that's not where the analysis ends now that she has taken the soundtrack to her family video out of its context . . as a family video.

Citation - or "educational use or purpose", i.e. teaching by example - IS a classic example of fair use. How does one teach a pupil or student how to play the piano classics without listening to a few classic performances? However, turn the "teaching performance" into the soundtrack of an educational video for sale on the WWW and you may have an issue, particularly as the "citations lengthen".

Everything in context npwsol.

[edited by: Webwork at 3:07 pm (utc) on Aug. 21, 2008]


 2:41 pm on Aug 21, 2008 (gmt 0)

30 seconds and crap-quality should not count in a time where ringtones are sold at real $$$ - fair use may still count, but as others have said before, where is "fair use" when the audience is a million internet users, and the clip is shown in a free cinema and someone earns money selling icecream and popcorn in the foyer?

I wonder how this ruling will affect the Viacom suit against Youtube?


 2:45 pm on Aug 21, 2008 (gmt 0)

So I wonder who should be sued when someone is chilling out in a crowded park on a summery day with their music box playing and nearby the ice cream man is shifting some lollies? :-)



 2:59 pm on Aug 21, 2008 (gmt 0)

If the RIAA had their way... The guy playing the music, the ice cream vendor, every person who heard it, whoever owns the park, the person who planted the grass, the guy who built the benches.... These of course are all contributory people to the infringement.


 3:14 pm on Aug 21, 2008 (gmt 0)

Many people complain that "laws are too complex".

Can you imagine how complex copyright law would be if the legislators attempted to anticipate or define every circumstance in which the law might apply?

So, to avoid complexity, legislators paint with broad strokes. They define concepts, the don't enumerate all circumstances. Legislators (lawmakers) also attempt to articulate - in "legislative history", for example "The Congressional Record" - the principles or concerns that underlie a new law, leaving it to the courts to help fashion and shape the law, in a case-by-case manner, often by referring to the "legislative history" when there is uncertainty or ambiguity "in the law", as unique or unanticipated or novel factual settings arise.

Which, of course, enables candidates for public (legislative) office to campaign against "the courts legislating" . . when all the courts are actually doing is attempting to resolve ambiguities in the law that were incorporated by the politicians, err . . legislators . . often deliberately . . either to not offend constituencies or to please lobbyists.

[edited by: Webwork at 3:31 pm (utc) on Aug. 21, 2008]


 3:39 pm on Aug 21, 2008 (gmt 0)

If I understand the article correctly the question if the video falls under fair use has already been settled - it is fair use.

The dispute is about if the copyright holder has to check before sending take down notices if the copyrighted material falls under fair use.

The Music Industry in this case used bots to identify music and automatically sent takedown notices to youtube. No human checked first if the material was fair use or not.

So the question here is: Can copyright holders use bots to find copyrighted material and automatically assume that its copyright infringement until proven otherwise or do they have to check the material first if it falls under fair use.


 3:57 pm on Aug 21, 2008 (gmt 0)

Webwork - Good lord, the lady had a funny video and she wanted to make it a bit funnier by throwing in a song about going crazy in the background and share it with her family and friends. As much as Google stands to profit from the situation, they're only trying to get their money's worth from providing a service.

See, Miss Lenz may not know how to email a video. Otherwise, she may not know why the email is taking so long to send when she tries (even thirty second clips are fairly big video files). YouTube lets her share videos more easily with her friends. It's a service.

Were this a more egregious violation of a copyright (I'm still absolutely, positively certain that it's not) like posting a complete music video without permission, I'd say yes, take the video down! But that's not the case; it's a crappy version of "Let's Go Crazy" in the background of a home video. 30 seconds of the song. Technically, the video is a tease (if you like that song).

I try to make this point each time youtube comes up; Google is not to blame here. It is not as though they are not trying to keep the channel clear of unauthorized copyrighted material. If you don't agree with that assessment, I suggest you set up your own video sharing site and handle the number of lawsuits Google is enduring, and pay all those wonderful legal fees!

Seriously, making a fuss over a 30 second clip just shows how petty corporate America is. I'm sure Universal has lost SO many record sales because of this video. I wasn't a Prince fan before, but I watch the video at least thirty times a day now! [/sarc]

I agree with you on one point, Webwork: the attacks on so-called "activist judges" are absolutely asinine. Common law is an important part of the judicial system, and the court's authority in this realm is also a check against congressional power; a very important check. Personally, I'm more inclined to hate the politicians who use the widespread lack of understanding of our consitution as a campaigning point.


 4:07 pm on Aug 21, 2008 (gmt 0)

making a fuss over a 30 second clip

Tell me, npwsol, what is the average time format for a television commercial? 30 seconds?

Should the Rolling Stones object if "only a 30 second clip" of, say, "Start Me Up" was used as the soundtrack for a Hummer commercial?

It's not the length of time. It's the intent to drive profits.

"Oh, but it's the consumer - not the big corporation - that made the much viewed video! So, what if the consumer/citizen choose to ad Start Me Up as the soundtrack? It's only 30 seconds!"

I might buy that IF there wasn't evidence that marketing departments everywhere are starting to catch on to - and endorse, encourage or incentivize - the consumer creation of advertising creatives for big brands. They even award prizes and jobs for the best consumer creative.

So, what's up next? All the marketing students who can't find a job start to build their resume by "consumer creating" their "fun, consumer video" about Pepsi or Nike or Nissan, and then adding a line to their job seeking cover letter or resume - sent to BigMarketingFirm - stating "I'm the guy/gal who created the YouTube video about your client, Nissan, that received 1 million views! How did you like how I blended NBC's footage from the Olympics, with the implied endorsement by Michael Phelps, with the soundtrack by Sting? Good stuff, huh? Can I have a job now?"

That's not this case but that's what this case is hinting at. A soundtrack to a family video? No big deal. The same soundtrack uploaded for public viewing? New issues. The same soundtrack attached to a video of someone espousing how much fun it is to drive their new Nissan? More issues. Where's the line? Typically in case law.

Cases like this one, which in THIS (referenced) case may not be an attempt to address all the issues and concerns I've voiced in this thread, need to be brought to test and establish boundaries. Cases that help to clarify boundaries aren't a bad thing, 'cept if your the person who is determined to have crossed the line. :P

[edited by: Webwork at 5:04 pm (utc) on Aug. 21, 2008]


 4:08 pm on Aug 21, 2008 (gmt 0)

npwsol, whether Stephanie Lenz knows how to email a video or not, the fact remains that she took a copyrighted piece of artwork, modified it, and made it publicly available. It's about time the music industry began to crack down on copyright infringements.


 4:21 pm on Aug 21, 2008 (gmt 0)

jecasc, I'm not sure how your reach that conclusion when the article contains the following:

as the judge expressed doubt that the woman would ultimately be able to prove her case

The article seems to indicate that the judge may lean towards the conclusion that the "use of (unthinking) bots" is problematic but their use may not trigger the statute's penalty provisions.


 5:08 pm on Aug 21, 2008 (gmt 0)

npwsol, whether Stephanie Lenz knows how to email a video or not, the fact remains that she took a copyrighted piece of artwork, modified it, and made it publicly available. It's about time the music industry began to crack down on copyright infringements.

Perhaps you should watch the video thats by the way available on youtube again - because it is already decided it is fair use.


The music was running on radio or mp3, the kid started dancing and she filmed.

If you make a video in the park, a cell phone rings in the background and has a prince song as a ring tone and you publish your video, is this copyright infringment?

Again: The lawsuit is not about the question if the video is fair use, its about the question if the music industry had the obligation to check this before sending the take down notice - which in this case turned out to be unjustified. Stephanie Lenz is sueing the music industry, not the other way round.

She sues them because she thinks the Music Industry violated her rights by taking down her video by sending an unjustified take down notice to youtube. The video did not violate copyright laws. The music industry defends itself by stating they didn't know it was fair use, because nobody even checked. A bot noticed there was prince music in it, and sent the notice automatically.


 5:26 pm on Aug 21, 2008 (gmt 0)

The baby should sue mommy for "cruel and unusual punishment" for having that "music" blaring at high volume! As well little baby plaintiff could sue moomy dearest for posting video of him on the internet without his permission since he is too young to sign a release form! Another example of grownups exploiting young people for their own amusement and profit! I hope a lawyer talks to the baby's agent soon!


 5:42 pm on Aug 21, 2008 (gmt 0)

Perhaps you should watch the video thats by the way available on youtube again - because it is already decided it is fair use

Would you please point me to a line in a judicial decision, in this case, that made that determination? Was there a summary judgment motion, addressed to fair use, that was granted?

I may be wrong but, procedurally, it appears that the video was taken down "automatically", by virtue of the "automated (bot driven) DMCA notice". A video can be restored for reasons other than a judicial determination that the video's use of the soundtrack was, in fact, fair.

For example, Google may have restored the video due to a defect in the DMCA notice, i.e., Google's implicit agreement that bot-based (unreviewed) notice does not satisfy the requirements of the DMCA.

Also, if Ms. Lenz countered the take down, declaring fair use or possibly declaring a defect in the procedure, and the copyright holder didn't file a lawsuit within 14 days after her response then Google is obligated, under the terms of the DMCA, to restore the video.

Given that Ms. Lenz filed the lawsuit a fair inference is that Google's response, of reviving the video, is a procedural necessity - not a judgment of fair use.

But, I may be wrong. I haven't scanned any available case logfiles to determine if there has been a ruling on the issue of fair use. I somewhat doubt it but I'm open to educational dope slapping, as always.

[edited by: Webwork at 6:00 pm (utc) on Aug. 21, 2008]


 5:53 pm on Aug 21, 2008 (gmt 0)

Has anyone asked Prince what he thinks?


 6:05 pm on Aug 21, 2008 (gmt 0)

Wait a minute... what?
I have uploaded dancing performances of my kids, with good sound quality, where full commercial (recent and popular) songs were used.
I've just checked 5 minutes ago, and they're still here.
What's the difference?
Maybe just my kids are adorable? hehe


 6:14 pm on Aug 21, 2008 (gmt 0)

This is a good test case for judicially vetting the vitality of automated DMCA notice bots (which is probably why the EFF has taken on the case) but it's hardly a good case for arguing fair use itself.

As a fair use case it's <legal term of art> totally kinda sucky </legal term of art>.

Depending on ownership or control of copyright Prince may not have the final say in this matter. His best move would be to say "I see no problem with this. Or, his business manager might say "No problem, so long as Google isn't profiting from the ~broadcast." (I thought Google was working on a formula for revenue sharing in cases where "rights" may be in question? If not they certainly should be.)


 6:27 pm on Aug 21, 2008 (gmt 0)

Okay, I've called it as an interesting case for anticipating future developments in the realm of litigation related to UGC (user generated content) that embed copyrighted works within the UGC.

As a fair use case it's barely even a case, except to the degree that in order to "validate the bot" the proponent of the bot likely has to convince the court that the bot done right. Easy? No, that's what made it a case worthy of EFF intervention: to prove that bot taken down notices are suspect or unworthy of validation. If it was a clear case of infringement I doubt you would see the EFF on board.

Later. ;)


 6:38 pm on Aug 21, 2008 (gmt 0)

BaseVinyl - While I agree in principal, the workings here in the U.S. imply that the mother is the person who would be signing the release form, so no foul here.

Matthew - Public availability is not the question here, it's fair use. We're discussing the video, which: a) is copyrighted itself, b) is a derivative work, c) was released publicly without the intent for profit by the author, d) was ordered to be taken down by Universal after a bot-only review. Google is (possibly) profitting, but they're not responsible for the content being uploaded (as per the DMCA).

Webwork - I think we can both agree that there are definitely limits here. I think we disagreed for the most part because I was referring specifically to the case at hand (and similar cases) where you were referring to the larger problem.

In short, a clarification:
1) Mom and Pop should be able to create and publish whatever they want using whatever materials they have so long as the result is not both an endorsement and a derivative work (based on someone else's work (not their own) without permission, of course)

2) In the context of the above, using Google's YouTube is not an endorsement to me. It's the use of a service. Basically, I'm just saying that neither you nor Google should get in trouble just because you used YouTube to publish and YouTube has advertisements; you are seperate parties. Just clarifying my stance >_>

3) If it ever comes down to marketing / digital media students creating free advertisement and posting it to YouTube to get attention, would you please bury me (with it <_<)? Seriously, I don't necessarily argue against creating it, but publishing it publicly is just stupid; keep that stuff in your portfolio (wherein I think fair use applies anyway).

4) On the consumer created advertising contests you mention: they should be legal, but there should be some ground rules. I.E., videos should be sent to the company, not published publicly. The winning video can be used as an advertisement, but the company should be required (as one would hope) to acquire the necessary privileges to create it. This kind of model obviously throws a stick into the flow of the process (what if you can't get privileges for everything in the winning video?), but we know how I feel about corporations anyhow. Better ideas?

In my experience, people generally know when something's marketing to them; all of the corporate sponsored "viral videos" I've ever heard of have been absolute flops, and, in fact, when they were exposed as corporate marketing efforts they completely backfired. I'm referring to a Sony video for their handheld console, IIRC. I can't speak for all of the population, but I've never personally known someone who didn't hate advertising of all kinds. On a rare occasion, it's useful ("hey, I actually do need to get out of debt..."), but for the most part the people I know regard advertising as consumerist drivel.

We're all a bunch of commies if you hadn't guessed.

Uhh, sorry for not recognizing the context you were speaking in >_>

Edit: Totally agree with the revenue sharing principle. Music companies should be jumping on board, not fighting against YouTube.

Regarding bot take-down notices: as I think this case demonstrates, they get the epic fail. Is it really that hard to just flag a video and then go for a manual review? Seriously? I understand you don't want to pay for the man-hours, but if the bot's wrong, you could get in trouble.


 7:56 pm on Aug 21, 2008 (gmt 0)

Would you please point me to a line in a judicial decision, in this case, that made that determination? Was there a summary judgment motion, addressed to fair use, that was granted?

Universal Music has retracted the take down notice itself after the mother claimed fair use. So a judicial decision was not necessary.


 10:01 pm on Aug 21, 2008 (gmt 0)

As a fair use case it's barely even a case, except...

Guess that was kinda like a broad brush stroke... ;-)


 10:18 pm on Aug 21, 2008 (gmt 0)

The Wired article mentions that "Universal did not challenge Stephanie Lenz's assertion that the video was a "fair use" of Prince's song."

This is correct. The judge's decision mentions that Lenz claimed fair use. It would have been remiss of him not to mention a challenge to that claim, if there had been one. It's neither necessary nor customary for a decision to mention everything that hadn't been claimed.


 10:41 pm on Aug 21, 2008 (gmt 0)

Ummm . . I'm not sure Syzygy. I think the waters will continue to be tested. Cases that follow this, involving videos with better production values, (the audio in this video sucks and doesn't really add much "to the entertainment") might represent a closer "fair use" call than we all are prepared to say today when the issue of fair use is examined from the perspective of YouTube, as a (some day?) profit making entertainment channel, rebroadcasting the copyrighted work of artists, as soundtracks, enhancing the entertainment value of otherwise mind-numbing videos.

Footnote: Ack! In the interest of justice (:P) I finally looked at the video. I knew it would be dreck (what home movie isn't?) and besides noticing how uninteresting and unoriginal a work the video is, and how "unfeatured" the music soundtrack is, I noticed the following: Views: 600,172. Sigh.

What a nothing of a video. All I can say is good job, EFF, in choosing this as your test case to challenge DMCABots as legitimate arbiters of what ought or ought not to be subject to take down notices.

Of course, any further damage to the public perception of more legitimate efforts to enforce intellectual property rights is just incidental and really not your fault, right EFF? :P

But, really, in the final analysis - 600,172 views of this video? I know the lawsuit probably explains 99.5% of the views, but really, if this is what people are watching on YouTube we are doomed. If this video passes for entertainment then the entertainment industry is doomed, too.

[edited by: Webwork at 11:30 pm (utc) on Aug. 21, 2008]


 7:00 am on Aug 22, 2008 (gmt 0)

Footnote: Ack! In the interest of justice (:P) I finally looked at the video. I knew it would be dreck (what home movie isn't?) and besides noticing how uninteresting and unoriginal a work the video is, and how "unfeatured" the music soundtrack is, I noticed the following: Views: 600,172. Sigh.

I guess even the mother will acknowledge that the video is not a masterpiece of art. But thats the whole point: It's a video as harmless as can be. Not even Universal Music denies that. The question the judge has to decide is this: Can the music industry take down my harmless home video automatically, just because somewhere in the background there is some copyrighted music playing? Music from a car radio thats driving by, a tv running in the background?

The music industry says: Yes, we can. We take it down by a bot. Thats cheaper. You have to break an egg to make an omelet. You can after all claim fair use later if we mistakenly take down your video.

The EFF says: No you can't you have to check the material first. It's a violation of the DMCA if you take down fair use material.

My gut feeling tells me the EFF is right. But I am not a lawyer or a judge, so no idea what the outcome will be.


 7:55 am on Aug 22, 2008 (gmt 0)

While the mother posted a video with innocent intentions and not for the purpose of making money, I submit the following arguement on behalf of the recording companies.

Since anyone can embed the video on their site through a link provided on the YouTube page, and assuming that site has ads, does this now cross the barrier of fair use?


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