Video posting and IP

[Inspector]

Definitely, I am a fast walker.

Now, because someone mentioned "silly" and "walk:"

http://youtube.com/watch?v=4jDCxtC-yPw

[DragonMaci]

Classical Pyhton! But the question is it legal for it to be there? I presume not.

[Inspector]

Classical Pyhton! But the question is it legal for it to be there? I presume not.

A short clip? I don't think it's a problem. It's been up for a year so I think if it were illegal it would be gone by now.

[DragonMaci]

A short clip? I don't think it's a problem. It's been up for a year so I think if it were illegal it would be gone by now.

It is reproduction without the creators consent so how is it not?

[Inspector]

It is reproduction without the creators consent so how is it not?

It's a short clip. As far as I know, this is like quoting from a book. I'm not intimately versed in fair use laws but as far as I know short clips are fine. If it were, say, 10 minutes then I would wonder about its legality (I still wouldn't know because the law is confusing). If any legal experts want to weigh in then by all means do so, or if you want to come with an actual legal claim then do so. But to just raise contentless doubts like you are doing is not fruitful.

[DragonMaci]

It's a short clip. As far as I know, this is like quoting from a book. I'm not intimately versed in fair use laws but as far as I know short clips are fine. If it were, say, 10 minutes then I would wonder about its legality (I still wouldn't know because the law is confusing). If any legal experts want to weigh in then by all means do so, or if you want to come with an actual legal claim then do so. But to just raise contentless doubts like you are doing is not fruitful.

If that happens maybe this should be spilt into a seperate thread.

[Qwertz]

Via UK's Guardian, this rather biased account of a lawsuit filed by TV giant Viacom against Google (parent of YouTube). From the article, it looks like Google isn't arguing fair use, but rather safe harbor. Nonetheless the suit is interesting in that it concerns alleged copyright infringement of clips from broadcast television shows. American courts have already determined that videotaping whole TV shows for private viewing is fair use. You can also make public small portions of a work in order to do scholarly criticism or analysis. There may be a question about whether this clip is a 'small portion;' Python could argue (though it would be inconsistent with their earlier stand in their suit against ABC) that the individual sketch is the 'whole work' in question, and that the clip is a nearly complete duplication of the 'whole work.' Furthermore, the YouTube clip doesn't seem to be advanced for scholarly criticism or analysis or any educational purpose.

Another issue is whether the clip was actually recorded off-air, or was ripped from a DVD. The 'private viewing' exception may be broader for off-air TV recordings than for DVDs, and the latter are also protected by DMCA. For example, if a friend of mine wanted to see the Buffy Musical, I might be allowed to make a copy of my videotape of the episode (recorded when it aired) and give the copy to him, but I would certainly not be allowed to make him a copy from my DVD of the episode.

I have not studied fair use in detail yet, but I believe, if Python were to sue whomever put this clip up on YouTube, that the clip would be found to infringe. I also believe that such a result would be proper. It is nearly the entire "Ministry of Silly Walks" sketch.

The 'safe harbor' argument is something I'll have to look at another time.

-Q

[DavidOdden]

I don't think there is a snowball's chance in hell that illegally posting works, like that clip, is legal. I am, however, willing to contemplate the possibility that hell is on the verge of freezing over. The fair use doctrine is the proverbial hole in the dike, and I have long predicted that it will be what destroys the concept of intellectual property, to be replaced with a notion of another limit on business. The goal that they are working towards is not the protection of IP rights, but the destruction of the notion of IP, to be replaced with a restriction on actions for profit. Thus stealing the works of another person and placing it out there for anyone to take will be okay, as "fair use", but doing this for profit is "unfair". In short, theft is fair, profit is unfair.

For a post hoc case like this, safe harbor seems reasonable and is anyhow the law of the land. I assume they didn't get but ignore the take-down requests. God help us, this could be the watershed case that finally puts the nail in the coffin of the concept intellectual property. Inconveniences of the kind "what is the actual purpose of the fair use exception" could easily get swept away by focusing on the mistaken and poorly stated parts of the statute.

[Inspector]

And then there's this, too.

[Qwertz]

I don't think the Viacom v. Google thing will even reach the fair use issue. It'll end with the safe harbor argument. I'm still trying to dig up more info on the suit, but it appears that Google (YouTube) is admitting that the material is infringing, or at least not asserting fair use as a defense. I think the safe harbor issue is really quite interesting, though. The idea, as I understand it, is that if you are a publisher of an online publication that publishes all submissions without review, you aren't bound by copyright laws - the people who make the submissions are. There have been suits dealing with the same issue in a defamation context as well. As I recall, safe harbor in that context was recently upheld. (Example.)

I believe recent legislation did away with the commercial gain exception to fair use in the context of motion pictures and (perhaps) music recordings, thanks to pressure from MPAA/RIAA. As to those media, the fact that copying was not done for commercial gain no longer supports a finding of fair use. I'm trying to find that legislation. I think it was part of the same law that increased the maximum prison sentence for people who videotape movies in theatres to 10 years, and was signed by the current President. I'll keep looking.

I agree that fair use is, as written, not a good doctrine because it is too broad. Purely as a thought experiment (I'm not advocating this yet), I wondered if substantially artistic works (fiction literature, music, artistic photographs, paintings, sculpture, narrative films, etc.) perhaps ought not be subject to any sort of fair use (or equivalent) exception to their copyrights, because it is entirely possible to critique such things without quoting or excerpting them. Critics could refer readers or listeners to the works themselves, rather than providing excerpts. On the other hand, creators of non-fiction works usually anticipate and welcome criticism (at least, the rational ones do) and would want critics to accurately describe their ideas. So limited excerpts for criticism and analysis of non-fiction or scholarly works might be acceptable. Perhaps this distinction is best made by the authors/artists themselves when applying for copyright? Perhaps two different types of copyright - one with a "criticism and analysis" exception and one without? Again, just a thought.

-Q

Edit: fixed url.

Edited May 4, 2007 by Qwertz

[Qwertz]

An interesting twist. The opportunity is limited to contributors of "user-generated" content, however, so I think it is an ultimately unproblematic one.

-Q

[Antonio]

It's a short clip. As far as I know, this is like quoting from a book. I'm not intimately versed in fair use laws but as far as I know short clips are fine. If it were, say, 10 minutes then I would wonder about its legality (I still wouldn't know because the law is confusing). If any legal experts want to weigh in then by all means do so, or if you want to come with an actual legal claim then do so. But to just raise contentless doubts like you are doing is not fruitful.

I'm not an attorney, but as an editor at a newspaper have become well-versed in communications law by its practical implementation and frequent consultations with both our in-house attorneys and prominent First Amendment lawyers, and it was a big emphasis in my communications major in college way back when.

Short clips, quotations or references that are used to show an example of a larger body of work or in order to make a commentary are fair use. The courts have held up this view all the way up to the U.S. Supreme Court.

There are those who would disagree. Those could include Scientologists who attempt to silence anyone in the media who criticizes them by claiming trademark infringement (The Association of Realtors does this too when they whine about how we don't put "realtor" in all caps with a TM - they think it's the name of a profession but then they can copyright it? Yeah right.). Book publishers and authors do this to critical reviews (but then they love having a book cover printed when it's positive) and once in a while businesses will do the same claiming their name's copyright trumps all, forgetting that statutes and case law have well-defined fair use. Some folks are brazen enough to claim that you can't even quote them or their works without permission.

There is a bevy of information out there on fair use. It is a very misunderstood area of intellectual-property law.

[Cogito]

Some folks are brazen enough to claim that you can't even quote them or their works without permission.

Yes, how dare they claim that they are the sole owners of their works and that you can't do whatever you want without their permission.

[Inspector]

Yes, how dare they claim that they are the sole owners of their works and that you can't do whatever you want without their permission.

So quoting you right now, as I am doing, requires your permission?

[Cogito]

So quoting you right now, as I am doing, requires your permission?

No, because I posted it on a forum owned by someone else who has rules that allows for quoting.

[DavidOdden]

No, because I posted it on a forum owned by someone else who has rules that allows for quoting.

So is your argument that because the rule refers to the law then people can quote you, but if you posted to an otherwise identical forum which did not say "or your post meets fair use standards"? How does that clause negate your permission claim?

[Cogito]

So is your argument that because the rule refers to the law then people can quote you, but if you posted to an otherwise identical forum which did not say "or your post meets fair use standards"?

I think you missed part of your sentence here, I'm not completely sure what you're trying to say.

All I was saying is that if someone decides to sell or give away his writing, he can do so under his conditions. If he chooses to publish with a company that he doesn't own, his conditions have to meet theirs (so when I "sell" my post to this forum, I have to meet its conditions, including letting my posts be quoted). My comment was in response to Antonio claiming that the fact of selling a book means that the seller loses full rights to his writing even if there were conditions to the contrary.

[DavidOdden]

I think you missed part of your sentence here, I'm not completely sure what you're trying to say.

Arrgh! Yes, the "then" clause evaporated, somehow. So the sentence should say, "(but if you posted...) then people cannot quote you"

All I was saying is that if someone decides to sell or give away his writing, he can do so under his conditions. If he chooses to publish with a company that he doesn't own, his conditions have to meet theirs (so when I "sell" my post to this forum, I have to meet its conditions, including letting my posts be quoted). My comment was in response to Antonio claiming that the fact of selling a book means that the seller loses full rights to his writing even if there were conditions to the contrary.

Okay, when I saw this post, I thought you were replying to Inspector. But still, if you choose to publish with any publisher. they will typically not mention that your works can, by law, be quoted without permission, under the conditions know as the "fair use law", which is mentioned in the forum policy. So if you choose to publish with me, you are implicitly granting such permission, and the same goes for any publication anywhere in the US (or elsewhere), even though it's true that my license agreement does not explicitly mention the fair use law. That's because of the underlying principle that ignorance of the law is no excuse, and if you don't know that the act of publishing is implicitly giving permission, regardless of the failure of the publisher to state this specific compliance-with-law principle, that's not my problem.

It's true that a person can sell or give away his stuff under his own conditions, but outside of a chain of contracts, you can't impose any restrictions more stringent than those specified by law. Since the relevant claim by Antonio was that in fact -- and it's true -- that you do have a right to quote people without their permission, as specied under the fair use law, then your counter-argument "Yes, how dare they claim that they are the sole owners of their works" would seem to be totally non-responsive, insofar as they have in fact implicitly granted permission my making statements public (public / publish... it's not just a coincidental similarity). I was just trying to figure out in what way publishing is not in fact an act of giving permission to quote under well-known conditions.

[Antonio]

Yes, how dare they claim that they are the sole owners of their works and that you can't do whatever you want without their permission.

You can claim whatever you want. But common law precedents and the First Amendment protect the right to quote. Again, not the right to reproduce in whole or in so much a part that it could constitute a significant substitution of the original product, but quoting.

What I was referring to is these laughable instances where people will tell us that we can't quote them or their works in the paper. And no, in those instances owners of the works can't stop us from doing what we want with ~excerpts~ of their work that are used for newsworthy purposes. We can do whatever we want with those ~excerpts~ or ~quotes~ without permission. We could not, however, publish the entire chapter of a book or the entirety of a copyrighted speech or magazine article.