Jackson Browne sues John McCain + Republicans for using his song without authorization

August 18, 2008

News:  Singer Jackson Browne filed a copyright infringement suit against John McCain, the Ohio Republican party, and Republican Party for using his song “Running on Empty” in a campaign video, but without permission from Browne.  (More from Wired)

Analysis:  I wish I could watch the video to hear how much music was taken.  I’ll try to say more later.   If I’m not mistaken, McCain ran into some earlier copyright troubles with FOX (if not others) and so did Barack Obama.  But this is the first copyright lawsuit filed against a presidential candidate, perhaps ever.

Lessig’s next book: Remix

August 4, 2008

News:  Larry Lessig says his last law + tech book will be out this fall.  It’s titled “Remix.”  More details here

William Patry shuts down his copyright blog

August 4, 2008

News: Noted copyright lawyer William Patry officially ended his copyright blog on Friday of last week.  His reasons are explained in the only post that remains on his blog (of 4 years).  He now works for Google, so that’s one of his reasons b/c too many people confused his personal comments as Google’s comments.  He also finds the state of copyright law too depressing.  

Analysis:  A shame.

Mediaset sues YouTube in Italy for copyright infringement

July 31, 2008

News: YouTube was sued again for copyright infringement, this time by Mediaset in Italy for allegedly infringing its programs in 4,643 unauthorized clips on YouTube. Mediaset seek 500 million Euros ($779 million US). More.

Analysis: YouTube already faces 2 major copyright lawsuits in the U.S. (one by Viacom for $1 billion and a class action lawsuit, both in NY). YouTube also was sued by Telecinco in Spain, and some news reports indicate that YouTube lost. The lawsuit in Italy just adds to YouTube’s headaches. The U.S. cases will test the scope of the DMCA safe harbors. I am not sure whether Spain and Italy have any comparable safe harbor.

Negative publicity forces Viacom to narrow scope of discovery request from YouTube, redacting usernames

July 15, 2008

News: Michael Arrington of Tech Crunch has the lowdown on the agreement reached by Viacom and YouTube to allow YouTube to redact usernames and IP addresses from the logs of videos watched on YouTube.

Analysis: At least Viacom is not being pig-headed about the way it litigates its copyright lawsuit against YouTube. Although Viacom initially sought the usernames and IP addresses and persuaded the court to force YouTube to turn the information over (potentially in violation of the VPPA), now Viacom realizes the public relations nightmare that was brewing among users of YouTube — who also may watch Viacom shows. This is a sensible narrowing of Viacom’s discovery request because Viacom really wants to go after YouTube, not smaller fish.  Also, it probably takes care of any VPPA problem.

YouTube users revolt against Viacom for seeking histories of all videos watched on YouTube, including user names of people who viewed videos

July 8, 2008

YouTube’s privacy mess — will users revolt?

July 5, 2008

News: YouTube is in serious damage-control mode, after being ordered by Judge Stanton to turn over, among other things, (i) apparently all videos ever removed from YouTube after being flagged, the videos number in the millions; and (ii) for every video ever uploaded on YT, a log of the viewing history of YouTube users, including the IP addresses of users plus their usernames, and the time they watched the video. It’s quite possible this order violates the privacy statute VPPA (as discussed in another post below), but, at this point, not sure YouTube is asking the court to reconsider its order or seek an immediate appeal to protect the privacy interests of its users.

On its blog, YouTube said its trying to convince Viacom to allow YT to redact the usernames and IP addresses to preserve user confidentiality. We’ll see what happens.

As you might expect, many YouTube users are angry about release of their viewing history. Here’s a typical angry comment posted on YT:

“I have an idea, STOP LOGGING IPs. It bothers me that you guys are keeping track of viewing histories by IP for such a long time. Sure, a simple IP doesn’t give out personal information but these bastards are known to contact service providers to attempt and retrieve the personal details attached to an IP, or at least to send scare tactic emails to their customers. You have a staff of friggin geniuses at your disposal, why not get them to come up with a way to REALLY PROTECT our privacy. It was fun watching videos here, but I think I’ll avoid YouTube videos from now on, log out of my account for good and if absolutely necessary, view videos through a proxy. Thanks for trying, but we know and you know you can try a lot harder.”

Analysis: One thing that surprises me is that apparently YouTube keeps the files of all videos ever removed from YouTube — 12 terabytes of files + millions of videos. Offensive videos, pornographic videos, hate videos, apparently all saved by YouTube. Maybe it just takes more work to completely remove them from YT’s servers, or maybe YT needs the deleted files to try to stop copycat repostings of the deleted files?? I don’t know.

Judge Stanton orders YouTube to reveal usernames, videos watched, + viewing history over YouTube’s privacy law objections

July 3, 2008

News: In the Viacom v. YouTube copyright lawsuit, Judge Stanton ordered YouTube to disclose “all data from the Logging database concerning each time a YouTube video has been viewed on the YouTube website or through embedding on a third-party website,” which includes “for each instance a video is watched, the unique “login ID” of the user who watched it, the time when the user started to watch the video, the internet protocol address other devices connected to the internet use to identify the user’s computer (“IP address”), and the identifier for the video.” You can read the opinion by clicking here.

EFF argues that the court order violates the Video Privacy Protection Act (VPPA). The Judge apparently didn’t think it applied (dismissing it in a footnote).

Michael Arrington of Tech Crunch agrees with EFF and lambastes Judge Stanton for the ruling, though with the “utmost respect.”

Mike Masnick of Tech Dirt agrees with EFF and thinks the disclosure of usernames and videos watched violates VPPA.

Analysis: In terms of the privacy law, the key question is whether online videos fall within “prerecorded video cassette tapes or similar audio visual materials” under the VPPA. I haven’t read the statute yet, but my initial “ordinary meaning” interpretation of those words would be that online videos clearly are “similar audio visual materials” to video tapes. There’s really not much difference between online video and a video tape.

Viacom said that it would handle the user data confidentially and just wants to prove its case (more). OK, even if YouTube users can trust Viacom, there are numerous other plaintiffs involved in the class action lawsuit against YouTube who will also receive the information.

Another thing wrong with Judge Stanton’s analysis is the notion that a YouTube “login ID is an anonymous pseudonym” (p. 13). There are plenty of YouTube usernames that are either actual birth names–Esmeedenters, Terranaomi, Judsonlaipply, TayZonday, etc–or usernames that are readily identifiable people in the YouTube community–Renetto, Smosh, Lisanova, Justine, Paperlillies, Hotforwords, Valsartdiary, etc. Sure, many YouTube usernames are not well known, but many others are.

EMI sues VideoEgg + Hi5 for copyright infringement

June 28, 2008

News: Michael Arrington at Techcrunch has the complaint filed by EMI today against VideoEgg + Hi5. Once I read the complaint, I’ll provide some analysis.

Viacom-owned Spike TV turns to p2p networks + file sharing to promote new show

June 14, 2008

News: p2p software was the bane of the music and movie industry, going back to Napster. Now, Viacom-owned Spike TV is turning to p2p to promote one its upcoming shows called the Factory, which will be available for free downloading and sharing on Limewire and other p2p networks. More from LA Times and Techdirt

Analysis: Viacom, of course, is suing YouTube. So it’s interesting to see one of its companies try to tap into the peer-to-peer networks and free file-sharing of its copyrighted shows. I do think it’s good for Viacom and other media companies to try to promote their shows through p2p networks.

Valedictorians: Don’t plagiarize the “Beatles graduation speech” on YouTube

June 13, 2008

News: In 2006, Cassandra Malloy delivered a 2-minute valedictory speech–titled “Beatles Valedictorian Speech”–at her high school graduation. The video is below, which she put on YouTube. The speech cleverly used Beatles’ lyrics and song titles to advise her fellow classmates. The Beatles references were mashed together in 1-minute.

Well, apparently in 2007, some other valedictorian made a Beatles graduation speech–titled “the Perfect Beatles Graduation Speech” and posted it on YouTube. The video is no longer accessible.

And, now in 2008, another high school student, 18-year-old Melanio C. Acosta IV, from Circleville, Ohio (who is going to Ohio State!), made a Beatles graduation speech. At first, according to news accounts, he admitted he plagiarized it and gave up his status as valediction. Now, though with a lawyer helping him, he says he only borrowed the idea from the YouTube video, but didn’t plagiarize. He’s even threatening to sue the high school for his valedictorian status back.

Analysis: What’s very interesting is that Melanio Acosta admits to getting his ideas from the 2nd video “The Perfect Beatles Graduation Speech.” But the speaker in the 2nd video, it turns out, might have copied at least the idea for the Beatles graduation speech from Cassandra Malloy, in the 1st video!

I haven’t seen Acosta’s speech, so can’t really say what I think about the plagiarism charge. Obviously, anyone is free to quote snippets from a few Beatles songs and mash them together in a graduation speech. Attribution to the Beatles was clear in the 1st speech by Malloy, and I assume in the other 2 speeches because that’s what made the speech funny and effective.

The more difficult question arises if any of the subsequent speakers simply took the exact same Beatles quotes in the exact same order, with substantially the additional words sprinkled in by Malloy in the 1st speech. Malloy’s speech was very short, but it sounded to me that she added in some of her own original content (it wasn’t just a string of Beatles quotes). So a close paraphrase or copy of her speech without attribution might raise not only a plagiarism issue, but a copyright infringement issue as well.

Warming Up to User-Generated Content — Are mashups legal?

June 10, 2008

News: I’ve been revising my latest article titled “Warming Up to User-Generated Content.”  It’s all about Web 3.0, cloud computing, and mashups.  Oh, and I almost forgot, it’s about copyright law, too!

You can download a draft of the article by clicking here.  Below is my latest Abstract for the piece:

Conventional views of copyright law almost always operate from the “top down.”  Copyrights are understood as static and fixed from the Copyright Act.  Under this view, copyright holders are at the center of the copyright universe and exercise considerable control over their exclusive rights, with the expectation that others seek prior permission for all uses of copyrighted works outside of a fair use.  Though pervasive, this conventional view of copyright is wrong.  The Copyright Act is riddled with gray areas and gaps, many of which persist over time because so few copyright cases are ever filed and the majority of those filed are not resolved through a judgment.  In these many gray areas, a “top down” approach simply does not work.  Instead, informal copyright practices effectively serve as important gap-fillers in our copyright system, operating from the bottom up. 


The tremendous growth of user-generated content (UGC) on the Web provides a compelling example of this widespread phenomenon.  The informal practices associated with UGC make manifest three significant features of our copyright system that have escaped the attention of legal scholars: (i) our copyright system could not function without informal copyright practices; (ii) collectively, users wield far more power in influencing the shape of copyright law than is commonly perceived; and (iii) uncertainty in formal copyright law can lead to the phenomenon of “warming,” in which—unlike chilling—users are emboldened to make unauthorized uses of copyrighted works based on seeing what appears to be an increasingly accepted practice.  Although the warming phenomenon has been completely ignored in prior copyright scholarship, warming serves as a powerful counterforce to the chilling of speech, even where copyright law is uncertain.        

Movie’s use of 15 seconds of John Lennon’s “Imagine” likely fair use

June 3, 2008

News:  The Stanford Fair Use Project scored a major victory for fair use yesterday in a case pitting Yoko Ono Lennon (along with Sean Ono Lennon, Julian Lennon, and EMI Blackwood Music) against the producers of the movie “Expelled,” which seeks to debate intelligent design and evolution (with a slant to the critics of the adequacy of evolution).  The district court rule that using 15 seconds of John Lennon’s “Imagine” in the 1 hour 39 minute movie was likely a fair use.  You can find the opinion on Lessig’s blog.

Analysis:  I haven’t seen the movie, but, by the description in the opinion, the movie’s use of the 15 seconds of the John Lennon strikes me as a very easy case of fair use.  The movie producers were using the Lennon song in order to show its naivete in thinking we can live in a world with “Nothing to kill or die for/ and no religion too,” or that a world without religion is even desirable.

MIT Free Culture’s “YouTomb” website — tracking DMCA notices

June 3, 2008

News: One of my students showed me this nifty website founded by some bright kids at MIT.  The group is called MIT Free Culture — I take it inspired by Larry Lessig — and it tracks 230,348 videos on YouTube to see how many are removed for alleged copyright violations.  So far, 4,948 such videos removed from YouTube, presumably based on DMCA notices.

Analysis:  These are interesting numbers. Of course, we don’t know how many of these copyright claims were legitimate.  And we don’t know how MIT Free Culture chose its sample.  So, putting aside all those variables, the number of DMCA notices seem rather low — by my math, a little over 2% of the total videos in the sample.  So that suggests that a lot of the content on YouTube is not infringing or copyright holders don’t mind.

Prince + Radiohead dispute over YouTube clip showing Prince perform Radiohead’s Creep

May 31, 2008

News: One of my students brought this controversy to my attention. It’s delicious. Prince performed Radiohead’s Creep at a concert at Coachella. Some audience member taped it and posted a clip on YouTube apparently. Prince’s people then filed a DMCA notice demanding the removal of the clip. But Radiohead’s Thom Yorke wants the clip back up because Radiohead owns the copyright to the song. (More)

So now it’s back up on YouTube:

Analysis: Radiohead’s right that it owns the rights to the song. Prince is just performing Radiohead’s song, so he has no copyright to it. He might have an anti-bootlegging claim as a performer, but that falls outside the purview of the DMCA notice-and-take down procedure. So it’s not clear to me what YouTube should do when Radiohead wants it up.

Red Lasso – copyright infringement or Web 2.0 for bloggers?

May 21, 2008

News: Both Tech Crunch and Silicon Alley Insider have excellent posts about the startup site Red Lasso. Basically, Red Lasso acts as a free Tivo-like service for bloggers, to enable bloggers to search Red Lasso’s copied content from TV and radio and then create embeddable clips for blogs.

Analysis: One huge problem: Red Lasso has no copyright permission from the TV and radio networks to copy their shows for this service. By the reports, all that Red Lasso is doing is copying the shows on their own and then offering it to the public (though now in private beta version) to create embeddable clips. This kind of activity falls outside of the DMCA safe harbors, and Red Lasso will be very hard pressed to defend this as a fair use. All of the TV networks have their own websites to disseminate their own copyrighted content as they wish — typically with advertising.

LisaNova offers free shots of her breasts for YouTubers + user-generated content

May 16, 2008

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.

FOX News v. John McCain, Mitt Romney

February 6, 2008

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.

Some copyright lawsuits v. YouTube disappear

February 3, 2008

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 Beck Richard 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.

Sweden sues The Pirate Bay for copyright infringement

January 31, 2008

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.

Warner Brothers v. Seeqpod

January 29, 2008

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.

What is Web 3.0? Eric Schmidt’s view

January 26, 2008

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.

NBC supports mash-ups and remixes of NBC shows

January 22, 2008

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.”

Full article

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).

NBC allows free copies of its shows online

January 16, 2008

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.)

New Yorker article on Google

January 13, 2008

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.

Video of the week: Perez Hilton kicked off YouTube

December 22, 2007

Don’t worry, Perez wasn’t booted for long.  He’s back up.

YouTube opens doors — halfway — for others to share revenue on YouTube

December 12, 2007

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. 

Barack Obama uses Saturday Night Live clip on YouTube, after NBC took it down

November 6, 2007

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.

How to sync music into YouTube videos — legally

October 29, 2007

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.)

Nick Haley makes Apple iPhone ad (w/o permission), but then gets hired by Apple

October 27, 2007

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.


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