Copyright law's fair use doctrine is embedded in 17 USC 107, which provides:
§ 107. Limitations on exclusive rights: Fair use
Notwithstanding the provisions of sections 106 and 106A [a copyright owner's exclusive rights to publish and distribute copyrighted works] , the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include —
(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
(2) the nature of the copyrighted work;
(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
(4) the effect of the use upon the potential market for or value of the copyrighted work.
The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.
The four "fair use" factors require a fact intensive analysis. So what do you think of Kutiman's mashup/remix of videos he found on YouTube (video below)? Cool? Yes. Fair use? You decide, and check out Kutiman's other "Thru You videos on YouTube here.
Kutiman's thru-you.comhttp://thru-you.com/ says: "Check out the credits for each video - you might find yourself".
Yes, another way for America to find itself. Will Kutiman be YouTube's Andy Warhol, doling out 15 seconds of fame to the famous and not-so-famous?
HT to Mike Masnick of Techdirt.
More Copyright Litigation Blog posts on the fair use doctrine here.
Copyright Litigation Blog reporting on Max Papeschi and the continuing NaziSexyMouse controversy here. Pamela Geller, author of Atlas Shrugs Blog (and author of The Obama Administration's War on America's post "The left owns western culture. Music, media, arts. Where does the road of leftism lead? To hell." Full post here. That's a relief! Up until now, everyone was thinking that NaziSexyMouse was a vast right wing conspiracy.
Purchase Copyright Litigation Handbook from West here
Showing posts with label video uploads. Show all posts
Showing posts with label video uploads. Show all posts
Friday, July 16, 2010
Sunday, June 27, 2010
CDCA: Politico's Use of Henley Songs Copyright Infringement - Not Fair Use
In Henley v. Devore (SACV 09-481) the Central District of California doled out a "sort of rough justice" and found that a politician whose campaign got a little crazy with a karaoke machine and a mashup campaign video engaged in copyright infringement. On June 10, 2010, summary judgment was granted, decision below.
All She Wants To Do Is Tax
They’re pickin’ up the taxpayers and
puttin’ ‘em in a jam
And all she wants to do is tax, tax
Liberals been liberals since I don’t know
when
They’re pickin’ up the taxpayers and
puttin’ ‘em in a jam
And all she wants to do is tax, tax
Liberals been liberals since I don’t know
when
Well, we barely made twenty ten, the vote
was in doubt
And we finished up the campaign she
could hear the people shout
They said, “Don’t come back here
Boxer!”
But if she ever does – we’ll bring more
money
‘Cause all she wants to do is tax
and break our backs
Never mind the heat comin’ off the street
She wants to party
She wants to get down
All she wants to do is –
All she wants to do is tax
All she wants to do is tax and break our
backs
All she wants to do is tax
From the decision (page 24):
“The [fair use] doctrine has been said to be ‘so flexible as virtually to defy definition.’” Princeton Univ. Press v. Mich. Document Servs., Inc., 99 F.3d 1381, 1392 (6th Cir. 1996) (quoting Time Inc. v. Bernard Geis Assocs., 293 F. Supp. 130, 144 (S.D.N.Y. 1968)). The case-by-case analysis resists bright-line determinations and the resulting decisions inevitably represent a sort of rough justice.
After you read the decision, drop down for a genius mashup video of Sarah Palin yodeling for taxes. Note to file: yodeling and Sarah Palin is fair use, but Don Henley Barbara Boxer ain't. Since no one can define "fair use" - justice is really rough these days.
I am one of the few that think electioneering is core political speech that is really really tough to trump and I note that the political history of our nation was forged by anonymous mudslingers slinging every conceivable mockery at one another. The Supreme Court's jurisprudence on political speech supports this view.
I think that the district court erred because a politician's campaign video is not commercial speech (see p 18), even though the politicians want $$$$. In politics, the Supreme Court has ruled that money = speech. This I believe is at the core of the whole Obama/Hope poster drama, if you look at my posts on Shepard Fairey, it is explained there.
But I been a liberal since I don't know when.
CDCA: No Fair Use - Politico Infringed Don Henley Copyrights
Purchase Copyright Litigation Handbook from West here
All She Wants To Do Is Tax
They’re pickin’ up the taxpayers and
puttin’ ‘em in a jam
And all she wants to do is tax, tax
Liberals been liberals since I don’t know
when
They’re pickin’ up the taxpayers and
puttin’ ‘em in a jam
And all she wants to do is tax, tax
Liberals been liberals since I don’t know
when
Well, we barely made twenty ten, the vote
was in doubt
And we finished up the campaign she
could hear the people shout
They said, “Don’t come back here
Boxer!”
But if she ever does – we’ll bring more
money
‘Cause all she wants to do is tax
and break our backs
Never mind the heat comin’ off the street
She wants to party
She wants to get down
All she wants to do is –
All she wants to do is tax
All she wants to do is tax and break our
backs
All she wants to do is tax
From the decision (page 24):
“The [fair use] doctrine has been said to be ‘so flexible as virtually to defy definition.’” Princeton Univ. Press v. Mich. Document Servs., Inc., 99 F.3d 1381, 1392 (6th Cir. 1996) (quoting Time Inc. v. Bernard Geis Assocs., 293 F. Supp. 130, 144 (S.D.N.Y. 1968)). The case-by-case analysis resists bright-line determinations and the resulting decisions inevitably represent a sort of rough justice.
After you read the decision, drop down for a genius mashup video of Sarah Palin yodeling for taxes. Note to file: yodeling and Sarah Palin is fair use, but Don Henley Barbara Boxer ain't. Since no one can define "fair use" - justice is really rough these days.
I am one of the few that think electioneering is core political speech that is really really tough to trump and I note that the political history of our nation was forged by anonymous mudslingers slinging every conceivable mockery at one another. The Supreme Court's jurisprudence on political speech supports this view.
I think that the district court erred because a politician's campaign video is not commercial speech (see p 18), even though the politicians want $$$$. In politics, the Supreme Court has ruled that money = speech. This I believe is at the core of the whole Obama/Hope poster drama, if you look at my posts on Shepard Fairey, it is explained there.
But I been a liberal since I don't know when.
CDCA: No Fair Use - Politico Infringed Don Henley Copyrights
Purchase Copyright Litigation Handbook from West here
Friday, May 21, 2010
Friday, August 29, 2008
User-Generated Video Uploads Veoh, Napster, Google and Safe Harbors
In Io Group, Inc. v. Veoh Networks, Inc., No. C06-03926 (HRL), a decision dated August 27, 2008 by Northern District of California Judge Harold Lloyd, discussed by PC Magazine here, the court found that the video uploading service found at http://www.veoh.com/ is not liable for copyright infringement.
The Veoh website permits users to view and upload their own videos and to share revenues generated from advertising revenues with Veoh. Veoh automates the process, so Veoh is not engaged in reviewing content before it goes up. You can also watch television shows made available by Veoh's "content partners". I note such shows as CSI and Ugly Betty from Veoh's home page.
The plaintiff sued Veoh claiming that its copyrighted films were posted on Veoh without bothering to give Veoh notice beforehand.
The decision has a great discussion of the technology involved in the uploading and storing process. It also has a thorough discussion of Veoh's user policies and the legislative history relative to the Digital Millenium Copyright Act that provides a "safe harbor" to online service providers who take reasonable measures to ensure that they are not helping copyright infringers. There is an informative discussion of why Veoh's case differs from the facts of Napster, although the underlying facts of Napster were not fully fleshed out. In today's New York Post, the Veoh case was reported as "Copyright case may aid Google".
Judge Lloyd found Veoh's policy to be reasonable, and rejected arguments that a stronger policy which would be more effective in barring people from creating new false user names was mandated as a condition for avoiding copyright infringement liability. He rejected the argument that the possibility of a banned user creating new false user names amounted to no policy at all. He also made clear that the law was designed to permit different approaches to developing an anti-infringement policy.
Certainly, this flexible approach has to be encouraging to Google, whose policies were not 100% effective against people who actively sought to foil them.
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