LisaNova is a hilarious comedian discovered on YouTube (also now on MadTv). This week she posted this LOL video spoofing how YouTube has become saturated with videos with teasers or still shots of women’s cleavage. Often the most popular videos each day have still shots of women’s breasts. (See here and here) It’s hard for other YouTubers to get their videos watched if the women’s cleavage shots get the most viewed.
So here comes LisaNova to the rescue, offering her services — and even clips of her breasts — for other YouTubers to use in their own videos. The video is a riot, but it’s even crazier that LisaNova is serious about offering free clips of her breasts for others to download and incorporate into their own user-generated videos. Her cleavage clips can be downloaded from her site.
News: This is a little bit late (happened last year), but I’ve been researching the copyright dispute FOX News had with John McCain and Mitt Romney.
What was the problem? Well, FOX demanded that McCain and Romney each stop using, in their campaign videos, any footage from their Republican debate sponsored by FOX News. Both candidates invoked fair use, but FOX said it wasn’t fair use.
Analysis: I have not read if FOX has changed its view. It should. FOX’s argument is downright absurd, a misuse of its copyright.
News: Back in August 2007, I reported on the 6 copyright lawsuits filed against YouTube. Well, it appears that in 4 of those cases, the lawsuit has been dropped voluntarily by the plaintiff. At least a few of the plaintiffs (Robert Tur, Cal IV publisher) joined the class action in New York against YouTube.
Another key development: Mayer, Brown attorneys Richard Ben-Veniste, Andrew H. Schapiro, and A. John P. Mancini, have now been brought in to be the attorneys of record for Defendants YouTube, Inc., YouTube, LLC, and Google Inc. They replace the law firm of Bartlit Beck Herman Palencher & Scott LLP, and its attorneys, Philip S. Beck, Mark S. Ouweleen, Rebecca Weinstein Bacon, Shayna S. Cook, and Carrie A. Jablonski. I don’t know the reason for the change in lawyers, but it’s definitely an interesting switch. I used to work for Mayer, Brown! Ben-Veniste is famous for being one of the Watergate prosecutors. He doesn’t specialize in copyright law, but neither did Philip Beck, the lead counsel Ben-Veniste is replacing.
One thing that is striking to me is that now all the copyright cases are located in the Southern District of New York. I wouldn’t necessarily think that strategy helps YouTube, which might have been helped by having several different courts consider some of the novel issues presented in the cases. This is pure speculation but maybe the plaintiffs’ attorneys in the New York cases persuaded all the others to drop their suits and join them?
Here’s an update on all the cases.
(1) DROPPED: Robert Tur’s suit in California for the Reginald Denny beating video (with a request by Viacom + NBC Universal to file an amici brief). Tur just dropped his suit to join the class action suit with Premier League in (3) below.
( 2) Viacom’s suit in the Southern District of New York (for Daily Show, Colbert Report, Sponge Bob, South Park, MTV clips, etc.) Just had a scheduling conference; apparently will have another. Philip BeckRichard Ben-Veniste of Mayer, Brown is now YouTube’s lead counsel. Don Verrilli is Viacom’s lead counsel. Judge Louis Stanton is presiding. Viacom International, Inc. v. YouTube Inc., 07-CV-02103. (Case docket from Justia)
(3) English Football Ass’n Premier League (soccer division) and Bourne Co. (U.S. music publisher) suit, with a request to certify a class action, in the Southern District of New York. So far, the Rugby Football League, the Finnish Football League, the National Music Publishers’ Association, and Knockout Entertainment Limited, Seminole Warriors Boxing, Robert Tur (from the 1st lawsuit), the Federation Francaise de Tennis, and Ligue de Football Professionnel. have also joined in the action. Also joining the class is New York-based Cherry Lane Music Publishing, which “owns more than 65,000 copyrights, including the publishing rights to music from Elvis, Quincy Jones, and the Black Eyed Peas.” Max Berger is lead counsel for Premier League; Philip Beck Richard Ben-Veniste of Mayer, Brown is lead counsel for YouTube. Judge, TBD. The Football Association Premier League Limited v. YouTube, Inc., 07 CV-3582. (Case docket from Justia)
(4) VOLUNTARILY DISMISSED: David Grisman, a mandolin player who performed with the Grateful Dead, along with his partner Craig Miller and company Dawg Music. They are also seeking to certify a class action of musicians against YouTube in the Northern District of California. Joseph Tabacco is lead counsel for Grisman. David Kramer is lead counsel for YouTube. Judge Susan Illston is presiding. Grisman v. YouTube, Inc., 2007cv02518. (Case docket from Justia)
(5) DISMISSED: The New Jersey Turnpike for use of certain surveillance footage. Suit in New Jersey. Judge Katharine S. Hayden is presiding. New Jersey Turnpike Authority v. YouTube, Inc., 2:2007cv02414. (Case docket from Justia)
(6) VOLUNTARILY DISMISSED: Country music publisher Cal IV, which owns rights to the songs by Faith Hill, Tim McGraw, and others. Also seeking a class action, this one in Nashville. Daniel Girard is lead counsel for Cal IV. James Doran and Robb Harvey, two Nashville attorneys, represent YouTube. Judge Robert Echols is presiding. Cal IV Entertainment v. YouTube, CV-00617 (Case docket from Justia) JOINED THE CLASS ACTION IN SDNY.
News: Sweden has charged four individuals related to the website The Pirate Bay with copyright infringement. They reportedly are the operators or financiers of the site: Fredrik Neij, Gottfrid Svartholm Warg, Peter Sunde and Carl Lundstrom. (More)
Analysis: From the description, The Pirate Bay helps people find movies/songs being shared through BitTorrent by locating the files and providing links to them. I haven’t explored the site myself, but it does sound at least somewhat like Napster. Not sure if it has a centralized index of titles stored on its servers (like Napster did), but it helps to locate unauthorized files of third parties. By the write-up on Wikipedia, The Pirate Bay seems committed to leading a movement for online file sharing and against the traditional copyright approach.
News: Seeqpod is a search engine that locates music files on the Internet and allows you to play whatever you find on a music player that appears on the Seeqpod page. The music is not stored on Seeqpod, as I understand it, but on third party sites that are identified in the search engine.
Warner Brothers Music has sued Seeqpod for copyright infringement. Seeqpod will be invoking one of the safe harbors under the DMCA for search tools. Ars Technica has an excellent discussion, as does EFF’s Fred von Lohmann.
Analysis: I’ll have more to say after I read the complaint.
I’ve been meaning to blog about this video clip of Google CEO Eric Schmidt’s take on Web 3.0. It’s a fascinating explanation and prediction of the next phase of the Internet. His explanation is so good, I’d rather let you just listen to the explanation rather than attempt to paraphrase it. You can tell this guy has a Ph.D.
We’re probably not yet there at Web 3.0, but the possibilities seem fast approaching. We’ve barely had time to digest Web 2.0, but here’s a video with a good explanation of the history behind the term Web 2.0.
In my legal scholarship, I try to analyze complications created by new technologies for existing paradigms of law, usually in the area of intellectual property. Right now, I’m continuing my exploration of how Web 2.0 affects our copyright laws. Hopefully, I’ll have a draft soon to share online.
News: The General Counsel of NBC Universal Rick Cotton has stated that NBC supports the ability of users to reuse and remix copyrighted shows. As I reported last week, NBC already allows free download copies of many of its shows on its website. When you couple this free dissemination of NBC copies online with Rick Cotton’s statements, it appears that NBC has bought into the mashup/remix culture of user-generated content that relies upon preexisting copyrighted works.
Here are some of Cotton’s statements:
“They can choose to download commercial free episodes of our TV shows or watch free, streaming, ad-supported programs on our websites. We’ve offered fans material from “Battlestar Galactica” and “The Office” to create mashups. And we expect to expand those offerings both on our websites and on Hulu.com.”
“But, looking forward, one of the exciting characteristics of the new, digital world is that technology will allow us greater flexibility to respond to consumer desires.”
“It bears repeating that short-form mashups, parodies and the like are NOT the primary focus of content owners’ anti-piracy activities. Let’s be clear that sympathy for parodies and “re-interpretations” should not be used as a justification for inaction in addressing aggressively the wholesale trafficking in complete, unchanged copies of movies and TV programs. Having said that, most major content owners today want to see fans fully engage with their favorite content and are working hard to provide legitimate ways to do that.”
Analysis: NBC Universal should be applauded for its stance on remixes and mashups, as well as for allowing free downloading of many of its shows online. If I take Cotton’s statements at face value, he basically gives his blessing to noncommercial remixes of NBC’s copyrighted shows. I would not have expected this kind of position from a Hollywood studio. But I hope NBC doesn’t scale back the free stuff and start selling all of its shows on iTunes (for more, see Mashable).
News: You know that the (copyright) times are changing when NBC is now allowing download copies of some of its most popular shows (instead of just watching them online). It’s part of “NBC Direct” (beta) and it’s all free. I’m assuming the free video downloads contain no DRM, but I haven’t verified that yet.
If you go to this menu, you’ll see that over 20 NBC shows are downloadable, including 30 Rock, Law & Order SVU, The Office, ER, and Heroes.
Analysis: The speed with which the video market is evolving is dizzying. Last year, I never would have expected NBC to allow free downloads of its shows. Presumably, by allowing the free downloads NBC has licensed at least a user to collect the episodes for personal use on her computer, if not also some other noncommercial re-uses. I don’t see a specific statement by NBC on terms of use, though.
The free downloading of NBC shows is also a little surprising, given the rather hard-line copyright position expressed by Rick Cotton in this NYT debate. I wonder what the difference, as a practical matter, between NBC allowing copying of its free broadcast shows and third parties doing it on their own with their own devices for those very same shows. If the market for free TV shows eventually adopts a free download practice, then the “piracy” rhetoric seems hollow. (Movies are different since they are not usually free, either online or offline.)
News: Ken Auletta has a must-read article about Google titled “The Search Party” in this month’s New Yorker. It has some mention of YouTube and Viacom’s lawsuit. One interesting quote is that CEO Eric Schmidt seems willing to test the scope of copyright on behalf of users:
In addition, Schmidt said, copyright “is not an absolute right,” and has to be balanced by “fair use.” When I asked whether Google wanted to push the envelope on privacy and copyright, he said, “That’s probably correct. If there’s a legal case, we’re going to favor the legal one that favors users.
News: YouTube has finally expanded its revenue-sharing program to allow anyone (who creates videos for YouTube) to apply for a share in the ad revenues. If approve, you become a “partner” and get some undisclosed amount of money from ad revenue generated by the traffic generated.
To qualify, you must meet 4 criteria:
1. You create original videos suitable for online streaming.
2. You own the copyrights and distribution rights for all audio and video content that you upload — no exceptions.
3. You regularly upload videos that are viewed by thousands of YouTube users.
4. You live in the United States or Canada.
Analysis: Number 2 must be a typo. There’s no way that most video creators will own the copyrights to the music in the user-generated videos. They could have a nonexclusive license to distribute and perform the copyrighted music. But that’s quite different from owning the copyrights to the audio.
News: The Barack Obama campaign posted a clip from this weekend’s Saturday Night Live featuring Barack Obama, in a skit making fun of Hillary Clinton and the other Democratic candidates. Newteevee reports that NBC had previously sent YouTube a notice to remove a different copy of the video. But the Obama campaign posted another one — although it’s not clear if with permission from NBC.
Analysis: I think the copyright issue is purely academic at this point. For PR reasons, NBC won’t be going after the Obama campaign for video of Barack Obama himself.
If you’re wondering how to find music to legally sync into a YouTube video as background music, you may want to check out Magnatune. Although the artists are lesser known, the website offers over 500 albums with music to sync into your YouTube videos. The license basically comes with the purchase of the album — and, get this: you can pick the price! You also can share your music files with 3 friends.
I think Magnatunes is great. I found a song (”Permanent” by Arthur Yoria) I really loved in their selection, which I used for this video below. The song is also made to adjust to the length of your video, almost perfectly.
But I admit the number of contemporary songs offered by Magnatune is not that great, and, of course, you won’t find any popular songs or big name artists on this site (which means you are likely to have to sit and listen to a bunch of songs you’ve never heard before, in order to find one that fits your video). I see the latter absence as a big failing of the music industry.
The problem with the music industry: Back when the music industry was suing Napster, the industry failed to provide a user-friendly service online for consumers. Instead, it took the genius of Steve Jobs of Apple to show the music industry that, yes, consumers would pay money to download music files online if you offer the music in a simple process for a reasonable fee.
Magnatune may not yet be the iTunes for sync licensed music, but I think Magnatune does give us a glimpse of the possibility. It’s unfortunate that the music industry isn’t more proactive in trying to expand its own market online. As you know, a number of music publishers are suing YouTube for copyright infringement in several different lawsuits. Their suits center around copyrighted music being synced into home videos on YouTube as background music without permission. You might ask, so then how does one get proper authorization for a sync license? Well, it’s not easy. Over the past few months, I’ve been studying how to put music into your YouTube videos legally. It’s a bedeviling problem.
First, I reviewed YouTube’s music offerings in its “AudioSwap” program that allows users to sync some free music offerings (authorized by the music industry to YouTube) into their videos. The AudioSwap program is very crude as an editing tool, though, and the number of songs is paltry.
Second, I looked at how music labels and the music publishers offer “sync licenses.” Basically, the process stinks. You have to look up the song on ASCAP (or other directory) to find the music publisher for the song. Once you do, you have to fax or email in a written request to the publisher describing the nature of your project. I talked with several music publishers who seemed so tight-lipped about their sync licenses and possible prices (even though I actually wanted to buy a license), instead asking me to wait for a response ranging from 2 weeks to over 1 month. To be very honest, the people at the music publishers with whom I spoke were borderline rude — I got the feeling that my call was just a bother to them. (My guess is that the price for a license on a single song will be very high.)
Third, I went to MySpace Music and asked a few unsigned artists to let me use their song in my video, in exchange for giving them publicity on my blog. Only one artist even replied to me, but even she did not ever give me permission. MySpace Music also is quite cumbersome to use to find an artist who might be willing to grant a sync license, since the thousands of musicians on MySpace don’t actually indicate whether they are willing to do so on the website. That means you have to send out individual emails to the musicians in the hope that one of them (whose song you liked) might be willing to let you use the music.
Possible solution: The predicament people face in trying to obtain a sync license for a home video runs close to being a market failure. I can’t understand why the music industry doesn’t try to set up a simple, automated online process for sync licenses for use in home videos — just as Magnatune is doing with lesser known artists. If people are making millions of home videos each year, just think how much money the music industry can make from selling a sync license for noncommercial use of a song in a YouTube video, let’s say, for $2.00 per video. That’s millions of dollars of extra money each year. There’s a huge demand already. But the music industry isn’t giving consumers what they want. Why not? (By the way, I’ve already told my idea to the RIAA earlier this year, but so far, I haven’t seen any developments.)
News: NYT and Wired both report about Nick Haley, a UK student who remixed video from Apple — without permission — and made a new ad for the iPhone with music from a Brazilian band, CSS, “Music Is My Hot, Hot Sex.” Even though Haley didn’t get Apple’s permission to use its copyrighted images, Apple like the video so much it asked Haley to make a version for TV, to air tonight during the World Series.
Analysis: This is a fascinating example from a copyright perspective. The guy didn’t have copyright permission, but it turned out what he did was something that the copyright owner (at least one of them) ended up liking. (I don’t know whether the band authorized the use of its song or not.) I’m researching this kind of scenario in our Web 2.0 world and will be writing an article about the phenomenon. I think it has some serious implications for how we should understand the function of copyrights.
News: Robert Tur (of LA News Service who shot the famous footage of Reginald Denny’s beating) was the first person to sue YouTube for copyright infringement. Well, after other plaintiffs (with deeper pockets) later sued YouTube in other jurisdictions, Tur decided to have his case dismissed to join one of the class action suits in New York. That way, Tur won’t have to pay legal fees himself, but can free ride on the work of the attorneys already in the case.
In a somewhat unusual move, YouTube opposed the dismissal, basically desiring the case in California to proceed forward (or presumably have Tur’s claims completely extinguished). The district court, however, ruled in favor of Tur, allowing him to join the other case in New York. (More)
Analysis: YouTube probably felt relatively good about its chances of prevailing in California and hoped to score a first victory that could influence other courts. We’ll now see which court will be the first to decide in 2008.
For more about all the copyright cases against YouTube, visit here.
News: After much delay, YouTube finally deployed its filtering type system for copyright owners. The system apparently is based on a database of copyrighted videos submitted to YouTube by the content owners that can be used to automatically identify copies of the same video uploaded to YouTube without authorization. YouTube makes a digital fingerprint of the submitted videos, which then can be used to track copies of the same videos. The system even reportedly is able to identify close copies of a copyrighted show, such as when someone tapes a show by pointing a video camera at it. Google CEO Eric Schmidt says no system can be 100% effective; realistically, they’re shooting for 80 to 90% effectiveness. Google and YouTube developed the system with participation from Time Warner, CBS, Disney, NBC Universal, and Viacom, the latter of which is, of course, suing YouTube for copyright infringement. (More and here.)
Analysis: The filtering system sounds pretty sophisticated. The catch, of course, is that YouTube needs copyright owners to submit their content to YouTube’s database. Or at least that’s how it’s being described in the press reports. Some copyright holders probably won’t think this filtering system is enough. As Rob Gould, marketing VP for Broadcaster.com, said, “If there has been a clip from ‘American Idol’ posted to the site by Joe Schmoe in Oklahoma instead of Fox, you can be pretty sure it’s not supposed to be there.”
News: Prince has hired the service Web Sheriff to patrol YouTube for unauthorized videos of his music and concerts. So far, reportedly the Web Sheriff has asked YouTube to remove 1,000 unauthorized clips. John Giacobbi, managing director of Web Sheriff, says, “At the end of the day, if you take copyrighted music and film off YouTube, most of its business would be gone.” (More)
Analysis: I hate to say it (because I used to be a big fan of Prince) but Prince is washed up. The worst concert I went to last year was Prince in a hotel bar in Las Vegas. The performer was two hours late (apparently, that’s his MO) and then performed songs that were unrecognizable to most. You had to pay extra for seats, so most people had to stand or sit on the floor for two hours or more. I would have had no problem if the show times were accurately reflected on the tickets, but the promoters of the show obviously must have known that it would lose a lot of customers if the tickets said “Prince, 12:30 a.m. to 3 a.m.”
News: On Tuesday, Universal Music sued video sharing site Veoh for alleged copyright infringement. The lawsuit was filed in the Southern District of New York, where 2 copyright lawsuits have been filed against YouTube. According to Wired’s account, Veoh runs a peer-to-peer network called “Veohnet,” which is different from YouTube’s architecture (YouTube stores all files on its own servers). Like YouTube, though, it’s expected that Veoh will raise a defense based on the DMCA safe harbor. (more)
Analysis: The more copyright lawsuits that are filed, I think the greater chances that one or more of these suits will reach all the way to the Supreme Court.
News: Here’s why. Sorry, this is not about YouTube. This is about a pro bono case I started working on over six years ago at the Stanford Center for Internet & Society, Golan v. Gonzales, which was just decided by the 10th Circuit on appeal.
As lead counsel and Stanford Law professor Larry Lessig describes in detail, this is a major victory for the First Amendment as it bears on copyright law. The fight is not over yet, but this is an important first step.
You can read more about the Golan case from Chris Sprigman (also an important lawyer who worked on the case, now teaching at Virginia Law School) here; from Howard Bashman of How Appealing here; and even a post from William Patry at the Patry Blog (though he confesses he once “had thought [the argument] made no sense at all”).
News: Independent film maker Christopher Knight made the commercial below to campaign for a local school board (he lost).
Afterwards, VH1 (owned by Viacom) saw Knight’s funny video, copied parts of it, and showed it on the VH1 show “Web Junk 2.o.” Viacom did so without asking for copyright permission from Knight. You can see the VH1 clip here. Knight heard about being featured on the VH1 show from friends, so he copied the segment about his video and posted it on YouTube.
So what happened next? Viacom sent a DMCA notice to YouTube demanding the removal of Knight’s video of the VH1 clip that features Knight’s video. YouTube complied and removed the video. Now, Knight is incensed. Here’s what he writes on his blog:
“That’s chutzpah. So is this: multimedia giant Viacom is claiming that I have violated their copyright by posting on YouTube a segment from it’s VH1 show Web Junk 2.0… which VH1 produced – without permission – from a video that I had originally created. Viacom used my video without permission on their commercial television show, and now says that I am infringing on THEIR copyright for showing the clip of the work that Viacom made in violation of my own copyright!”
Analysis: The DMCA has a provision to stop this kind of nonsense. Under 17 U.S.C. 512(f), a person who materially misrepresents that a work is infringing in a DMCA notice can be civilly liable for damages. So if a case is successfully brought against Viacom, it could be held liable (although damages might be somewhat difficult to prove). It’s also worth noting that, under copyright law, a defendant who infringes a third party’s copyright by using the third party’s copyrighted material to make a derivative work loses any right to claim copyright in the derivative work. Anderson v. Stallone, 1989 WL 206431, *9-10 (C.D.Cal. Apr 25, 1989).
We’ll see what happens. Knight says he doesn’t have the resources to fight a legal case. This is really bad PR for Viacom, so I expect it will do something to make the brouhaha go away. Maybe EFF will get involved?
“High School Musical 2″ debuted this week. If you don’t have kids, you may not be aware that this Disney franchise is a mega-hit, selling more albums in 2006 than any other (even American Idol stars). The debut of the sequel this week received 17 million viewers on Disney, the most ever for a cable show. Wow, now that’s impressive. “High School Musical” stars Zac Efron, Vanessa Hudgens, and Ashley Tisdale. (I finally know who Ashley Tisdale is, ’cause I’ve seen her YouTube videos before.)
I’m more intrigued by the fact that clips from “High School Musical” are some of the most watched clips on YouTube, dating back close to one year. Disney doesn’t seem to mind these postings by third parties on YouTube since they haven’t asked for their removal. It might well be that Disney doesn’t want to alienate all the teenagers and young kids who are posting these videos of “High School Musical” on YouTube out of their sheer fanaticism for the movie.
News: I’ve read over some of the negative comments posted by people on YouTube related to YouTube’s InVideo ad system. Under the new system, YouTube will deploy ads that will pop-up at the bottom 20% of the video screen, lasting for several seconds. If you click on the pop-up ad, you will be redirected to an internal ad video. If you do nothing, the ad disappears. Meanwhile, the original video you played will continue playing. One thing to note: the new InVideo ads will only be used on select “Partner” videos — the corporations and select users YouTube has deals with.
Some of the comments sent in to YouTube are filled with expletives, vitriol, and venom. Here’s one thoughtful comment I read, though: “‘OK by me. Someone has to pay the bills. Between users fees and advertising I prefer the latter.’ Yeah, but why does someone have to pay the bills with intrusive advertising now when they didn’t before? If YouTube originally had ads IN or BEFORE the videos, it would be just as unpopular as all the other video sites, and it would have never grown the massive user base that greedy baby boomer investors and marketers now salivate over. There is a reason young people latched on to YouTube…it offered something other than the “60% content and 40% marketing” formula that insults us from the television screen. Make no mistake- too much advertising and the real YouTube will soon be remembered as a historical curiousity; a good idea and an interesting phenomenon spoiled by greed. Don’t forget that we are here because we are tired of commercials. If YouTube doesn’t understand that or can’t support thier business in that way, then it’s time you guys found a new line of work.”
Analysis: The comment has some force to it. YouTube appealed to people because the videos were ad-free, and not filled with pre-roll ads so common on commercial sites. I believe the commenter’s exactly right that people were/are tired of seeing commercials everywhere they go (except during the Super Bowl).
But I’m not sure YouTube’s InVideo ads will ruin the original ethos of YouTube. As I noted above, the majority of videos won’t have these ads. One reason is for fear of copyright liability: YouTube knows that inserting commercial ads into user videos that constitute copyright infringement will expose YouTube to a claim for vicarious liability, outside the DMCA safe harbor. In other words, there are a bunch of unauthorized videos on YouTube posted by users. YouTube can’t risk profiting from them with commercial ads because that would defeat any DMCA safe harbor defense for YouTube.
News: Online video site Veoh (a YouTube wannabe) just sued Universal Music, seeking a declaratory judgment that Veoh hasn’t committed copyright infringement and falls within the DMCA safe harbor. Apparently, Veoh anticipated being sued by Universal, so Veoh did it first. (More from Tech Crunch)
News: It seems like everyone–except the recording industry–is suing YouTube. Here’s an update on all the cases.
(1) DROPPED: Robert Tur’s suit in California for the Reginald Denny beating video (with a request by Viacom + NBC Universal to file an amici brief). Tur just dropped his suit to join the class action suit with Premier League in (3) below.
( 2) Viacom’s suit in the Southern District of New York (for Daily Show, Colbert Report, Sponge Bob, South Park, MTV clips, etc.) Just had a scheduling conference; apparently will have another. Philip Beck is YouTube’s lead counsel. Don Verrilli is Viacom’s lead counsel. Judge Louis Stanton is presiding. Viacom International, Inc. v. YouTube Inc., 07-CV-02103. (Case docket from Justia)
(3) English Football Ass’n Premier League (soccer division) and Bourne Co. (U.S. music publisher) suit, with a request to certify a class action, in the Southern District of New York. So far, the Rugby Football League, the Finnish Football League, the National Music Publishers’ Association, and Knockout Entertainment Limited, Seminole Warriors Boxing, Robert Tur (from the 1st lawsuit), the Federation Francaise de Tennis, and Ligue de Football Professionnel. have also joined in the action. Also joining the class is New York-based Cherry Lane Music Publishing, which “owns more than 65,000 copyrights, including the publishing rights to music from Elvis, Quincy Jones, and the Black Eyed Peas.” Max Berger is lead counsel for Premier League; Philip Beck is lead counsel for YouTube. Judge, TBD. The Football Association Premier League Limited v. YouTube, Inc., 07 CV-3582. (Case docket from Justia)
(4) David Grisman, a mandolin player who performed with the Grateful Dead, along with his partner Craig Miller and company Dawg Music. They are also seeking to certify a class action of musicians against YouTube in the Northern District of California. Joseph Tabacco is lead counsel for Grisman. David Kramer is lead counsel for YouTube. Judge Susan Illston is presiding. Grisman v. YouTube, Inc., 2007cv02518. (Case docket from Justia)
(5) The New Jersey Turnpike for use of certain surveillance footage. Suit in New Jersey. Judge Katharine S. Hayden is presiding. New Jersey Turnpike Authority v. YouTube, Inc., 2:2007cv02414. (Case docket from Justia)
(6) Country music publisher Cal IV, which owns rights to the songs by Faith Hill, Tim McGraw, and others. Also seeking a class action, this one in Nashville. Daniel Girard is lead counsel for Cal IV. James Doran and Robb Harvey, two Nashville attorneys, represent YouTube. Judge Robert Echols is presiding. Cal IV Entertainment v. YouTube, CV-00617 (Case docket from Justia)
News: The English Premier (soccer) League’s class action suit with Bourne Publisher against YouTube for alleged copyright infringement is heating up. Here are several more companies that have joined the suit against YouTube (as reported here):
1. The Rugby Football League
2. The Finnish Football League
3. National Music Publishers’ Association
4. boxing promoters Knockout Entertainment Limited (Secondsout.com) and Seminole Warriors Boxing
5. France’s top football league and its national tennis organisation (the Federation Francaise de Tennis and Ligue de Football Professionnel)
A YouTube spokesperson said: “We are disappointed with this lawsuit, as we have great partnerships with the Premier League’s own Chelsea FC, as well as major football clubs such as Barcelona FC, AC Milan, Real Madrid or Bayern Munich, who understand the benefit of using YouTube as another way to communicate with their fans.”
News: On Friday, Viacom and YouTube/Google had a scheduling conference in the Southern District of New York. The biggest news from the hearing was word from YouTube/Google’s lead counsel Philip S. Beck of Barlit Beck Herman Palenchar & Scott LLP about the video fingerprinting technology under works. YouTube already uses AudioMagic’s audio fingerprinting technology to help identify copied audio files. YouTube is developing similar kind of technology to recognize video file fingerprinting, with anticipated deployment around September.
“Somebody who has a copyrighted video … would provide it to us and say ‘we don’t want this up on YouTube.’ We’re developing a way to take basically an electronic or video or digital fingerprint of this material so that if somebody does try to upload it, within a minute or so the computers will figure out that that’s one of the items that the copyright owner said they don’t want up on the system, and we would be able to pull that down until any issues are resolved,” Beck said. (More here)
Analysis: It will be interesting to see what the Google guys cook up. People should be realistic, though, and not expect a foolproof system that will stop all copyright infringement. The open architecture of the Internet makes that virutally impossible.
News: On Tuesday, Beyonce took a huge fall down steps in her performance in Orlando. She later told the audience it “hurt so bad”–and by the looks of it, it could have been worse, so thankfully she wasn’t seriously hurt. She even got right back up and continued the song. She later told the audience, “Don’t put this up on YouTube.”
Well, of course, they didn’t listen and put up homemade clips from the show (probably taken on cellphones). The clips were viewed often all week. Then, YouTube took them down for “terms of use” violation, apparently meaning possible copyright violations (of the song performed) and unauthorized use of the video of Beyonce (who likely did not consent to the video). Sony BMG apparently sent YouTube a DMCA notice for copyright infringement. (More) YouTube, though, doesn’t seem to be finding all the clips yet because, last time I checked, you can find one clip here.
BTW, I think the concert venue staff are really the ones responsible for all the unauthorized clips. Maybe it’s too hard to control, but they let this happen.
News: The EFF gang is at it again. This time, they’re suing Universal Music Group on behalf of Stephanie Lenz for sending YouTube an allegedly improper takedown notice under the DMCA to remove video of her baby dancing to Prince’s “Let’s Go Crazy” for 29 seconds. (Complaint) (More)
Analysis: Fair use is always a difficult thing to predict because courts have a lot of discretion to decide however they see fit. And I don’t think there’s been any test case for fair use of background music in a home video. This one, though, seems to me to be a pretty strong case of fair use. The segment of Prince’s song is short and barely audible amid the ruckus created by the kids. It’s not substitutional of Prince’s song in any respect. Also, the song was used in one of those spontaneous moments involving a baby that all parents want to preserve on film to document their child’s growth. I think it would be similar to a news reporter showing a scene from a county fair and having (spontaneously) some live music being captured in the background.
News: Avril Lavigne has the 2nd Most Watched Video (all time) on YouTube (over 41 million views) with her video “Girlfriend,” in which the lyric goes “I Don’t Wanna Be Your Girlfriend.” The 70s band The Rubinoos has just her sued her for copyright infringement because the song sounds amazingly similar to The Rubinoos’ song “I Wanna Be Your Boyfriend.” The similarity was obvious to one music critic in Billboard when he reviewed Avril’s album and stated: “the chorus of “Girlfriend” was a “total lift from the Rubinoos’ ‘I Wanna Be Your Boyfriend.’” (More here)
Here are two comparisons:
Analysis: My copyright class would love this. I usually have an entire class devoted to music copyright infringement cases during which we compare music tracks.
News: YouTube apparently has given the Smosh boys (Anthony Padilla and Ian Hecox) back the 24 million views that were erased from their overall view count after YouTube removed Smosh’s most popular video involving a Pokemon lip synch (notwithstanding a strong parody fair use defense for Smosh). The video was removed after the copyright holder to Pokemon sent YouTube a DMCA notice.
The other big news is that Lonelygirl15 just got passed by Fueled by Ramen, an independent label.
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