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Posted by Colin B on 12/10/06 20:19
"PTravel" <ptravel@travelersvideo.com> wrote in message
news:y3Eeh.20818$9v5.8705@newssvr29.news.prodigy.net...
>
> "Colin B" <Colin B@cb.org> wrote in message
> news:457b00c3$1@clear.net.nz...
>
>> Well, we are indeed fortunate to have a copyright expert here to advise
>> us all. For both the examples I gave above, can you please tell me
>> whether I have breached copyright holders' rights if I upload both these
>> videos to Youtube without seeking any approvals and could thus be sued by
>> the rights owners? This is a serious question based on real facts, I'm
>> not trying to fool anyone, believe me!
>
> We do have a copyright expert here, though I don't give legal advice to
> non-clients. I will, however, discuss hypotheticals, such as the two
> you've provided here.
>
> With respect to the music students playing Mozart, music composed by
> Mozart is, of course, well beyond the term of coyright and is therefore in
> the public domain. However, new arrangements of public domain music can
> be protected by copyright. If the piece the students was playing was a
> public domain arrangement, no copyright issues are raised by your
> hypothetical. With respect to permission from the students, if they were
> playing in public, e.g. on the street or in a park bandshell, they would
> have no expectation of privacy, and no permission is needed PROVIDED that
> they are not shown in a way that would constitute false-light defamation
> AND you're not making commercial use of the video -- different
> jurisdictions have different rules with respect to commercial
> appropriation of likeness. If they were not in public, i.e. somewhere
> where they had an expectation of privacy, you'd probably need to get their
> permission.
>
> With respect to the video of your daughter, the music playing in the
> background would come within incidental reproduction doctrine. This is,
> unfortunately, an unsettled area of law -- few courts have ruled on it,
> and the rulings have been contradictory. Though the law is far from
> clear, it is probable (meaning more likely than not), that you will not
> infringe IF the music selection isn't used in its entirety and isn't used
> as a soundtrack for the clip. However, different jurisdictions have
> interpretted incidental reproduction differently, and the safest course is
> to not use protected expression without permission, even if incidental to
> a video recording.
>
> The problem, as I see it, is that, with the development of new technology
> over the last decade or two, it has become very easy to copy and
> distribute protected intellectual property and, as a result, casual
> infringement has become common. The fact that it's easy to do, or that it
> isn't deliberate, is not now, nor has ever been a defense to infringement
> liability.
>
Thanks very much PTravel for answering my questions. I have been making
films for many years and I think I have an elementary appreciation of
copyright issues. However, I consider that a large number of people who
upload videos to Youtube either don't have even an elementary understanding
of copyright law, or they just couldn't care less about such issues. I think
there are thousands of Youtube uploaders who have no idea that they could be
sued for uploading copyright infringing videos. They are lucky that the
legitimate rights owners do not seem to think it's worthwhile to sue
uploaders. So far, I haven't seen any reports of uploaders being sued,
perhaps this is because Youtube is obliged to remove offending videos once
they have received objections. I'm not sure, however, whether Youtube will
act on objections from people who are not the copyright holders of the
offending video clips?
It seems that a lot of people think that, because they have made a video
themselves, they own the copyright to the video and therefore it can be
uploaded to Youtube without any problems. For example, there are lots of
home movies on Youtube of children taking part in school plays and other
productions. I doubt whether any of the uploaders of these videos would have
asked for copyright approval before uploading them, but I would think this
would be necessary for lots of musical productions and plays. And, the
participants in the production, if it was performed, for example, in a
private school hall, might also need to give their permission to have the
video published on Youtube.
This is why I think the video sharing site owner should approve all video
submissions before publishing them, because the copyright laws are far too
complex for a layperson to understand. People from overseas countries have
probably never heard of the DCMA and quite a few uploaders from foreign
countries wouldn't be able to read English. The copyright laws in their
countries would probably be quite different to what is set out in the DCMA.
To put the onus on the uploaders to decide what copyright approvals should
be obtained is a difficult ask, and even conscientious and experienced
filmmakers, such as myself, would not always know whether a video really
needed copyright clearance before publication or not.
I have just come across this item on internet, it argues that Youtube does
receive a financial benefit directly attributable to infringing activity,
and thus may not be immune to lawsuits.
http://digg.com/tech_news/YouTube_Sued_For_Copyright_Infringement
It says on this page that:
"Upon further review of the text of the DCMA, it is quite clear that a
problem arises:
To be immune to lawsuits, ie, to make use of the 512(c) exception, YouTube
must meet all of the following requirements laid forth by 512(c)(1):
(A): does not have actual knowledge that the material is offending or
removes it if it finds out that it is. ....Check, YouTube is good to go
here. Also note: This is an abridged version, not the actual words.
-----------------------------
(B): `(B) does not receive a financial benefit directly attributable to the
infringing activity, where the service provider has the right and ability to
control such activity; and [note: actual text, commentary below]
------------------------------
(C) does not matter, but involves removal of copyright material.
Why? The problem is (B). YouTube does receive a financial benefit directly
attributable to said infringing activity, AND, more importantly, they have
the ability to control such activity. Unfortunately, the DCMA does not make
any exceptions for the difficulty or cost of said ability to control such
activity, only that such an ability does exist. While cost/difficulty of
implementation may be taken into consideration by 512(i), it is not
guaranteed.
Finally, before you script kiddes get ahead of yourself, not that the (A),
(B), and (C) sections are not joined by or's, hence, YouTube must satisfy
*all three* requirements to make use of the exception."
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