“Blatant Censorship”

[Karim D. Ghantous]

We are about to see a massive roll back on the copyright. The absurd concept that things in public view (like a building or Hollywood sign) can be copyrighted is already gone and now that Micky Mouse, Superman and Batman are in public domain after changing the law through bribery for decades I think we will see it back to 10 or 15 years soon.

Hope so!

 

[Misha Engel]

Hope so!

Badluck

https://www.axios.com/copyright-office-system-for-pulling-content-offline-isnt-working-ed78fe62-eec4-44dc-bcdd-1c593e888fb8.html

 

[Carlos Garcia-Diaz]

The logical error of the above is that it presumes that any use of existing material covered by copyright provides EXCLUSIVE and ABSOLUTE rights relative to the use of that material. Copyright provides LIMITED exclusivity, and there is (or was) a doctrine of fair use, not for the purposes of ripping somebody off by selling their work as your own, but by providing the opportunity to recontextualize the work, to transform it, to provide commentary, etc.

Not going to get into the weeds of the facts that you guys are debating, but I studied copyright law (JD degree) and currency teach it, so here's a very general overview of what is exclusive and some the limits of copyright law/fair use. (1) US Constitution- Copyright Clause: Article I, Section 8, Clause 8: "Congress shall have the power… To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries." The clause says that the right is exclusive and mentions one of its limitations--exclusivity for a limited time. The Constitution is a document of balances. When exclusivity ends, works belong to the public (public domain). The balance encourages individuals to profit form their works/exclusive rights, and also benefits society (by encouraging said production and by the time limit and through the public domain). Although, as someone mentioned: https://alj.artrepreneur.com/mickey-mouse-keeps-changing-copyright-law/

Congress codified Copyright Law in Title 17 § 106. Exclusive rights in copyrighted work (delineating what those exclusive rights are), and set out various exceptions to that exclusivity in sections 107-122 (fair use). The main section dealing with fair use, §107, generally states that a person may use work that is otherwise protected by copyrighted/exclusivity under section 106 when:
(A) (preamble) the use is for transformative purposes, such as criticism, comment news reporting.... (transformative = transforms the original or adds a different purpose to it, Campbell v Acuff Rose is a great case, Folsom v. Marsh was the source of section 107). Note: fair use does not require prior permission from a copyright holder if the use is transformative, because, for example, holders would generally not give someone permission to use their work to criticize or parody them (Campbell, a million other cases).
A minimum of 4 factors, including:
(1) purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes [commercial vs. non-commercial uses]
(2) the nature of the copyrighted work; [factual vs. fictional, fictional works are given less fair use protection because they are highly individualistic, whereas facts are facts]
(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole (amount and substantiality are 2 distinct considerations that must be weighed together). The amount could be great, but not substantial (Campbell, parodies require that you copy the original otherwise people won't know who you are parodying), or the amount could be small, but considered substantial, so amount by itself is not determinative. People try to distill this to a percentage or amount, but there is no black and white amount. This is determined by the facts of each case.
(4) the effect of the use upon the potential market for OR value of the copyrighted work. Are the two works in the same market? Will copy hurt the sales or the value of the original copyright?

One of my student's works was flagged for a copyright violation on Youtube and they wrote out an analysis of these factors explaining why their use was fair use, and the flag was lifted a couple of weeks later. Algorithms usually get this wrong.

Lastly, under the American Rule, anyone can sue anyone for anything, so even if your use is clearly fair, that won't stop a plaintiff with deep pockets from suing you for copyright infringement even if your use is clearly, 100% fair use. That would be for the courts to ultimately decide. Campbell is really a great case (2 Live Crew) and would encourage everyone to read it if they're interested in fair use and how the Supreme Court interprets/applies §107.

 

[Phil Holland]

Carlos, while you're here. Just out of curiosity. What's your take on a company taking footage that has a watermark on in and re-purposing it for self promotion and cropping out and removing the watermark?

 

[Misha Engel]

Lastly, under the American Rule

Youtube could have just censored it in the USA, like they censor other things in China, Russia, etc.. as long as they earn money.
American Rule is not what it used to be.

 

[Carlos Garcia-Diaz]

...What's your take on a company taking footage that has a watermark on in and re-purposing it for self promotion and cropping out and removing the watermark?

What would you consider the re-purposing (factor #1, the purpose of the use), commercial or non-commercial? What the use for criticism, comment, news reporting, teaching....? Also, the removing of a watermark might or might not be relevant to strengthening the plaintiff's case. You really have to analyze all of the factor together. For example, in the Campbell case, 2 Live Crew used the most distinctive part of Roy Orbison's Pretty Woman, part of the chorus, and it was still found to be fair use because it was transformative (a parody, which is a form of criticism). If you look at the other factors (the use was commercial, the original work was music, so fictional, 2 Live Crew seemingly took the entire heart of the original (amount/substantiality), and it took sales away or damaged the original copyright, you might think that the plaintiffs should have won the case. In fact, the lower courts ruled differently because they analyzed the factors in different ways (a lot of the analysis is common sense, but a lot of it is also subjective, so the courts/judges might look at the factors differently.

The first major Youtube Fair Use case involved a Youtuber taking almost the entirety of another another Youtube video and doing commentary over it. That went to court and the defendant's won even though they practically used the entire original (factor 3, amount/substantiality really depends on the facts). Interesting read: http://www.keepcalmtalklaw.co.uk/broadcast-yourself-within-the-limits-fair-use-on-youtube/

 

[Carlos Garcia-Diaz]

Youtube could have just censored it in the USA....

It's also good to keep in mind that initially, that is usually done by an algorithm on Youtube, not by a human being (volume of submitted videos is way too high for people to be able to review it all). I watched the entire doc, and you could certainly make the argument that any third party material that was used was used for purposes of comment, scholarship, and/or research. However, all of these facts have to be analyzed too. Really good documentary. We, as a species, are in trouble.