YouTomb is a research project by MIT Free Culture that tracks videos taken down from YouTube for alleged copyright violation.More specifically, YouTomb continually monitors the most popular videos on YouTube for copyright-related takedowns. Any information available in the metadata is retained, including who issued the complaint and how long the video was up before takedown. The goal of the project is to identify how YouTube recognizes potential copyright violations as well as to aggregate mistakes made by the algorithm.Who is behind YouTomb?YouTomb was built by MIT Free Culture, a student organization at MIT. Active Free Culture chapters exist at many schools and universities; they work together to promote open access to knowledge and culture.
What's recently been taken down? John Lennon's #9 Dream, which had originally been posted on September 2, 2006, and was taken down today.
Gee, do you think today's move has anything to do with pique over the decision rejecting Yoko Ono's motion for a preliminary injunction and allowing Expelled to be distributed with the 15 seconds of "Imagine" remaining?
Finally, perhaps, the RIAA and ASCAP's reign of overclaiming copyright by asserting the fee simple ownership of every last component of every last copyrighted recording and song is coming to an end.
I've never understood why recording artists tolerate a regime in which they pay to use the sample of another recording, no matter how brief. Art thrives on recognizable quotation. It would be pointless for art to quote something unrecognizable. Recognizable notes carry meaning and connotations that are the very product of their recognizability, and art depends on evoking large meanings from small pieces. Nor can anyone argue that the brief sample of one recording in another deprives the original of sales; if anything, bringing the old song back into consciousness through the effective "quotation" of one of its recognizable parts could only conceivably help sales of the original.
Then again, perhaps I do understand the toleration of the licensing system that exists for the use of prerecorded samples. They bow to the RIAA, which (mis) states that "generally speaking, the use of any part of a song requires a license." (emphasis added) Thoughtless court decisions have endorsed the RIAA's position. As previously noted on this blog, paying for every last sampled note from a copyrighted song became industry practice after Judge Kevin Duffy in Grand Upright Music, Ltd v. Warner Bros. Records, Inc., 780 F. Supp. 182 (S.D.N.Y. 1991)(Duffy, J.), in a decision that did not even consider issues pertaining to fair use, enjoined the distribution of Biz Markie's third album because one of its songs sampled three words and the accompaniment ostinato of Gilbert O’Sullivan’s schlock hit “Alone Again, Naturally.” Duffy wasn't satisfied with a mere injunction, however: he referred the defendants to the U.S. Attorney's office for criminal prosecution and wrote in his opinion, like a preacher from the pulpit,"Thou shalt not steal." [Exodus, Chapter 20, Verse 15] has been an admonition followed since the dawn of civilization. Unfortunately, in the modern world of business this admonition is not always followed."
The Biz Markie case, Grand Upright Music, is generally considered the reason industry practice is to pay for any and all recorded samples. Record companies certainly have no interest in challenging the existing regime. The recordings they own are held inviolate too, so why challenge the right of another recording company to require payment for any sample, no matter how small, no matter transformative its use is, and no matter how little impact it will have on the market for the sampled piece? Artists who would challenge the existing regime hardly have the financial wherewithal to challenge the industry and the enormously successful artists who benefit from it. Thus, as Jonathan Lethem has written, "[a]lthough sampling was just a technological extension of the age-old process of learning through imitation, producers who use samples now pay up instead of trying to set precedents for fair use. "
Just when it seems like mashups are played out — or playing dead, thanks to litigious record labels — along comes Girl Talk (nee Gregg Gillis). For last year's album Night Ripper, the laptop mixologist used more than 250 samples from 167 artists. Raps by Ludacris rub up against a Boston riff, the Ying Yang Twins whisper over the Verve's "Bittersweet Symphony." As the album became an indie sensation, Gillis resigned himself to the inevitable cease-and-desist order. But it never materialized. "Labels are starting to realize that something like Night Ripper isn't going to hurt their artists," Gillis says. "If anything, it will promote them."
Yes, it's smart business. But business should not define the rights of artists and writers to use the resonant pieces of our culture to express their own points of view. It is absurd to repeat the oft-repeated canard that "[i]t is well established that using just a few seconds or bars of a musical composition violates the copyright in a work if the piece taken was the "hook'' or 'essence' of the original song." If the sample does not in fact evoke the original, there's no point in using the sample. It's the sample's very recognizability and its cultural resonances that make it a usefully compressed sign in the appropriating work.
If we depend on business to determine when sampling is permissible and when it is not, we'll never have samples in works the original artists don't like. If you support the teaching of intelligent design and you leave it to business to define your rights to sample music, you'll never, ever be able to use a John Lennon piece, no matter how seminal you believe it is in expressing the views you abhor. If you are Biz Markie creating a new work that rejects the sentiment and sappiness of Gilbert O'Sullivan's ouevre, you'll never be able to sample a Gilbert O'Sullivan work.
I wish I could tell Judge Kevin Duffy that "Thou shalt not steal" does not exhaust Old Testament wisdom.
The thing that hath been, it is that which shall be; and that which is done is that which shall be done: and there is no new thing under the sun. -- Ecclesiastes 1: 9 (KJV)
Mickeyforpresident.com is a new online campaign, backed by conservatives, that offers a way for Republicans to vent their anger at John McCain: write in "Mickey Mouse" for president. In most states, write-in candidates that reach a certain threshold are reported as percentages just like the normal candidates are. The group's plan is for Mickey Mouse to reach that point, as a way for voters to visibly and effectively demonstrate their disgust. The site is very careful to point out that "'Mickey Mouse'" is a registered trademark of Disney Enterprises, Inc. Fair Use applies."
Disney does tend to be very touchy about the use of its characters. One of my students this past semester once worked at Baskin & Robbins. He explained that one day Disney representatives appeared like Men in Black to determine whether the ice cream shop was making any cakes with unauthorized Disney characters on them. The use of Mickey Mouse as a write-in candidate to express dissatisfaction with the candidates on the ballot is, however, a time-honored practice. One writer claims Mickey received 400 votes in Florida in 2000, a point I don't believe was mentioned in Bush v. Gore.
And no doubt Jimmy Cauty's (one half of the KLF) extensive use of Mickey Mouse in his current artwork is a big fat raspberry directed Disney's way.
Last week the United States District Court for the Southern District of New York denied the request for a preliminary injunction by Yoko Ono against further showing and distribution of the movie Expelled, which, as I wrote last month, criticizes evolution, promotes the teaching of intelligent design, and in the process uses 15 seconds of John Lennon's song "Imagine." In a twenty-three page memorandum opinion and order issued today, the Court held that the producers and distributors of Expelled are likely to prevail on their fair use defense and denied Plaintiffs' motion for a preliminary injunction in its entirety. As I wrote, If the filmmakers had tried merely "to capitalize on the film as soundtrack material that would be attractive to an audience would likely not be fair use, but, if, as seems likely, the song is quoted to criticize its atheism, that use would likely constitute fair use, regardless of whether Ono finds the users' message objectionable." The court, apparently, thought similar things (citations and footnotes omitted; hyperlink added):
Defendants’ use is transformative because the movie incorporates an excerpt of Imagine for purposes of criticism and commentary. The filmmakers selected two lines of the song that they believe envision a world without religion: “Nothing to kill or die for/ And no religion too.” (“Imagine lyrics, Ex. D to Weber Decl.) As one of the producers of “Expelled” explains, the filmmakers paired these lyrics and the accompanying music to a sequence of images that “provide a layered criticism and commentary of the song.” The Cold War-era images of marching soldiers, followed by the image of Stalin, express the filmmakers’ view that the song’s secular utopian vision “cannot be maintained without realization in a politicized form” and that the form it will ultimately take is dictatorship. The movie thus uses the excerpt of “Imagine” to criticize what the filmmakers see as the naïveté of John Lennon’s views. The excerpt’s location within the movie supports defendants’ assertions. It appears immediately after several scenes of speakers criticizing the role of religion in public life. In his voiceover, Ben Stein then connects these sentiments to the song by stating that they are merely “a page out of John Lennon’s songbook.” In defendants’ view, “Imagine” is a secular anthem caught in a loop of history recycling the same arguments from years past through to the present. We remind our audience that the ideas they just heard expressed from modern interviews and clips that religion is bad are not and have been tried before with disastrous results.” (Sullivan Decl. ¶ 21.) The filmmakers “purposefully positioned the clip . . . between interviews of those who suggest that the world would be better off without religion and an interview suggesting that religion’s commitment to transcendental values place limits on human behavior. . . . mak[ing] the point that societies that permit Darwinism to trump all other authorities, including religion, pose a greater threat to human values than religious belief.” (Id. ¶ 20.)
Defendants’ use of “Imagine” is similar to the use at issue in a recent decision of the United States Court of Appeals for the Second Circuit in which fair use was found, Blanch v. Koons. There, the visual artist Jeff Koons copied photographer Andrea Blanch’s photograph from a fashion magazine without permission and incorporated a portion of it into one of his paintings. 467 F.3d at 247. . . . As in Blanch, defendants here use a portion of “Imagine” as “fodder” for social commentary, altering it to further their distinct purpose. Just as Koons placed a portion of Blanch’s photograph against a new background, defendants here play the excerpt of the song over carefully selected archival footage that implicitly comments on the song’s lyrics. They also pair the excerpt of the song with the views of contemporary defenders of the theory of evolution and juxtapose it with an interview regarding the importance of transcendental values in public life. Plaintiffs contend that defendants’ use of “Imagine” is not transformative because defendants did not alter the song, but simply “cut and paste[d]” it into “Expelled.” As the foregoing discussion illustrates, however, this argument draws the transformative use inquiry too narrowly. To be transformative, it is not necessary that defendants alter the music or lyrics of the song. Indeed, defendants assert that the recognizability of “Imagine” is important to their use of it. (Sullivan Decl. ¶ 16.) Defendants’ use is nonetheless transformative because they put the song to a different purpose, selected an excerpt containing the ideas they wished to critique, paired the music and lyrics with images that contrast with the song’s utopian expression, and placed the excerpt in the context of a debate regarding the role of religion in public life. Plaintiffs also contend that defendants’ use of “Imagine” is not transformative because it was unnecessary to use it in order to further the purposes defendants have articulated.
Determining whether a use is transformative, however, does not require courts to to decide whether it was strictly necessary that it be used. In Blanch, although certainly Koons did not need to use Blanch’s copyrighted photo, as opposed to some other image of a woman’s feet, in his painting, the Second Circuit did not suggest that this lack of necessity weighed against a finding of fair use. Similarly, in Bill Graham Archives, the Second Circuit found a transformative use in the defendants’ unauthorized inclusion of several of the plaintiff’s images—principally concert photos—in a coffee-table book about the musical group the Grateful Dead. 448 F.3d at 607. Although the defendants manifestly could have proceeded without the plaintiff’s , which constituted only a small part of the book, this posed no obstacle to a finding of fair use.
As I said, I think the use of "Imagine" by the filmmakers without permission is legitimate fair use. Nonetheless, Lennon, and "Imagine" in particular, are being misrepresented. Lennon's song imagines a world unpolluted by religious sectarianism, not exactly a radical view in light of the issues of the day. But that's not a view many can find tolerable, even in the U.S. of 2008, and they'll resort to misrepresentation to support their intolerance. Today, the Wall Street Journal ran a story with the headline The Case Against John Lennon. The quote that highlights the column?
What is going on here? Why is the WSJ promoting a column with such a provacative title and using a misquote to mislead readers into a negative reaction against John Lennon? The column itself is a mess. It is poorly written, jumbled and fails to adequately explain how John Lennon or his song “Imagine” has anything to do with what the column appears to be about. Here is the pertinent section that mentions Lennon:
"Mr. Sharansky has a new book, titled Defending Identity. It would be equally accurate to call it The Case Against John Lennon. Or, more specifically, the case against 'Imagine,' Lennon's anthem to a world with 'no countries . . . nothing to kill or die for/And no religion too.' For Mr. Sharansky, a nine-year resident of the Perm 35 prison camp, that's a vision that smacks too much of the professed beliefs of the ex-Beatle's near namesake, Vladimir Ilyich.'
What the hell? Does he think he’s being clever or something? Lennon sounds like Lenin. Get it? So obviously they must be related or they must think alike or something right? Nevermind that “Lenin” was actually an alias for Vladimir Illich Ulyanov, while the surname Lennon dates back hundreds of years to old Ireland.
No, they sound alike so there must be a connection. Right? Kind of like how Obama sounds like Osama so they must be related too. Yeah. That’s the level of reasoning that the column sinks to.
Absolutely pathetic.
And of course he never goes back and explains how V.I. Lenin’s brutal and dictatorial ways have any similarity or correlation to Lennon’s ode to world peace. But fortunately for the cretins who run the WSJ editorial pages, John Lennon is dead and can’t defend his classic work against their asinine columnist’s offhanded smear.
Here's Ken Miller, a biologist from my alma mater speaking at CaseWestern ReserveUniversity, where I now teach, speaking on intellligent design, evolution, and religion:
In its lawsuit against Google seeking one billion dollars for the alleged copyright infringements committed and being committed on Google-owned YouTube, Viacom claims that it "has records of more than 150,000 unauthorized clips uploaded on the popular web site." That's an interesting, and very carefully crafted, statement. Viacom isn't claiming there are 150,000 instances of copyright infringement. Fair use only arises as an issue when the use is unauthorized. If use is agreed to, it's use is enforced by contract law. How many of those 150,000 "unauthorized clips" are really infringements? There's no way to know. Whether the unauthorized use of copyrighted work is fair use or an infringement requires too complicated a balancing of competing interests to distinguish among the 150,000 instances in an intellectually sound way.
Google claims it does more than is legally required as the owner of YouTube to control the use by individual uploaders of materials that might infringe. As I previously have pointed out, Google's policy on these matters seems to me a thoughtful and genuine effort to balance the opportunities for speech and creation created by the internet against the need for copyright ownership to provide sufficient incentive for creativity and invention.
As awesome as Julia’s images are, I can’t help but wonder why the place -Madurodam- isn’t credited in her publicity, since I feel like she’s standing on the shoulders of the people who crafted those amazing models. I feel a bit miffed at the ol’ fine art vs craft presumption. Or am I being pathetically modernist and is it perfectly legit for her to sample in this way?
Plainly, the KLF feel and express in a number of subtle and not subtle ways that what passes for art in the marketplace is nothing more than the rehashing of old tropes. They're not artistic nihilists, however; as they explain in The Manual
So why don't all songs sound the same? Why are some artists great, write dozens of classics that move you to tears, say it like it's never been said before, make you laugh, dance, blow your mind, fall in love, take to the streets and riot? Well, it's because although the chords, notes, harmonies, beats and words have all been used before their own soul shines through; their personality demands attention.
I'm from Missouri asks why I haven't commented on the lawsuit Yoko Ono, Sean Ono, and Julian Lennon have brought against the makers of the documentary Expelled, which purports that "theorists" of "Intelligent Design" have unjustifiably been expelled from the conversation regarding evolution and the development of life. I hadn't known of the case until this question. My understanding is that 15 seconds of the song are used in the film. Quite plainly, Ono does not agree with the filmmakers' point of view. Simply to capitalize on the film as soundtrack material that would be attractive to an audience would likely not be fair use, but, if, as seems likely, the song is quoted to criticize its atheism, that use would likely constitute fair use, regardless of whether Ono finds the users' message objectionable. That certainly seems to be the conclusion of the Stanford Fair Use Project, which has taken on the filmmakers' defense in Ono's lawsuit. Their description of the use of the song in the film seems to confirm my own suspicions regarding the legitimacy of the fair use defense in this case:
The clip of “Imagine,” which is audible for approximately 15 seconds, is used in a segment of the documentary in which the film’s narrator and author Ben Stein comments on statements made by Myers and others about the place of religion. In the documentary Stein says: “Dr. Myers would like you to think that he’s being original but he’s merely lifting a page out of John Lennon’s songbook.” This is followed by an audio clip of Lennon’s song “Imagine,” specifically, the lyrics “Nothing to kill or die for, And no religion too.”
But throwing away that CD is copyright infringement?
According to UMG Recordings, that's true insofar as the label's promotional CDs are concerned: those thousands of unaccounted for discs the label mails out each year to reviewers, radio stations and others.
...
The Electronic Frontier Foundation is defending the accused pirate.
"According to the first sale doctrine, once a copyright owner has parted with ownership of a CD, book, or DVD, whether by sale, gift, or other disposition, they may not control further dispositions of that particular copy (including throwing it away)," EFF attorney Fred von Lohmann wrote on his blog. "It's thanks to the first sale doctrine that libraries can lend books, video rental stores can rent DVDs, and you can give a CD to a friend for their birthday. It's also the reason you can throw away any CD that you own."
"Happy Birthday to You" is the best-known and most frequently sung song in the world. Many - including Justice Breyer in his dissent in Eldred v. Ashcroft - have portrayed it as an unoriginal work that is hardly worthy of copyright protection, but nonetheless remains under copyright. Yet close historical scrutiny reveals both of those assumptions to be false. The song that became "Happy Birthday to You," originally written with different lyrics as "Good Morning to All," was the product of intense creative labor, undertaken with copyright protection in mind. However, it is almost certainly no longer under copyright, due to a lack of evidence about who wrote the words; defective copyright notice; and a failure to file a proper renewal application.
The falsity of the standard story about the song demonstrates the dangers of relying on anecdotes without thorough research and analysis. It also reveals collective action barriers to mounting challenges to copyright validity: the song generates an estimated $2 million per year, and yet no one has ever sought adjudication of the validity of its copyright.
This call comes in the wake of the landmark judgment October 4 against Jamie Thomas, the single mother of two from Brainerd, MN who was hit with a penalty of $222,000 US for downloading 24 songs (approximately 90 minutes of music with a retail value of less than $25) and the Federal Government’s addition of “copyright reform” to its list of priorities in last week’s throne speech.
“When the Canadian Record Industry Association (CRIA) says ‘copyright reform’ what they really mean is ‘give a free hand to sue fans who download like they have in the US,’” explained CMCC representative and Barenaked Ladies front man Steven Page. “We hope the government has a better solution in mind.”
“We think lawsuits like the one in Minnesota would be terrible for the music business in Canada. It’s shortsighted to say ‘See you in court’ one day and ‘See you at Massey Hall’ the next,” Page continued. “If record labels want to try and sue fans, we hope that they’ll have the courtesy to stop trying to do it in our names.”
The CMCC suggests a more effective legislative approach to peer-to-peer technology would be one that accepts current technological and music-business realities. “It’s been nearly ten years since peer-to-peer file sharing changed the music industry and, despite what some people suggest, suing people isn’t going to make it 1995 again,” Page elaborated. “Capitol Records v. Thomas is just another example of the drastic measures American record labels have been taking against their fans for years. Despite all this ill will, peer-to-peer downloading hasn’t shown any sign of going away. If the Canadian government wants to reform copyright it should be creating a made-in-Canada solution that looks to where the music industry is going, not where it was.”
"This contest is being run to promote awareness of remix culture in an educational capacity by encouraging the fair use of a wide variety of content and also to create a new pool of work that explains what remix culture is to the general public."
One of the judges is Lawrence Lessig, who is to the remix culture' sort of what Allen Ginsberg was to the beat generation and who is depicted by Brett Gaylor in his video "The Lessig Remix":
I, of course, found all this via Lessig's own blog. And Lessig, of course, was recently publicly criticized for espousing a "quasi-Socialist Utopianism" and for being "a demagogue and a hypocrite" who wants "Soviet"-style, "Orwellian" intellectual property laws because somehow those law will convince "America to embrace 'the idea of placing the design of the Internet into the hands of government.'"
At bottom, this criticism isn't aimed at Lessig's views on copyright, but, rather, his arguments for "Net Neutrality":
The KLF wrote The Manual (see also here and here) in 1988, but they certainly seem to have been prescient:
From now on, whether or not the technology makes the traditional musician's craft redundant, the young creative type will become more aware that he is able to control more areas of the way his music is communicated to the masses. The manipulation of this control will become a very important creative form of expression in itself.
As more and more creators of music begin to realise that it is possible to make records themselves and steer those records in whatever direction they want, at the same time as retaining all the copyright in the product thus a bigger chunk of the action, the attractiveness of signing your soul and its products away from now to eternity (well at least fifty years after the day you die) will become to look rather silly. Nothing to do with ideology, just straight forward business sense.
* * * I'd like to see the total collapse of the music, TV and film industry, I noticed Metallica got upset about the Napster thing. Their argument is that they should get a royalty every time someone downloads a track. Isn't that like the plumber getting royalties whenever you turn on the tap? I think if I was in a band I’d tell the record company to fuck off and release it all free on the internet. Just forget about trying to make money and just concentrate on the music.
Lloyd Whitesell "chose to pose more questions. Who owns music? Do people borrow or steal music, or is music in the publicdomain? Drawing on anthropologist Steven Feld's observations, Paul Simon's Graceland was a blend of rock and roll, Cajun, and South African pop, but Simon is the one who gets the money."
This blog is an ongoing exploration of issues related to copyright and fair use in our contemporary digital culture.The blog began and continued through April 2008 as a class project in Peter Friedman’s Legal Analysis & Writing classes at Case Western Reserve University of Law during the spring 2008 semester. The students wrote cross-motions for summary judgment in a fictional lawsuit brought by the owners of the copyright to "Que Sera, Sera (Whatever Will Be, Will Be)." The Plaintiffs (represented by half of my students) alleged infringement of their copyright in Que Sera, Sera by the KLF, the real-life creators of an actual recording entitled "K Cera Cera."K Cera Cera (mp3) is a recording of the Red Army Choir singing an amalgam of Que Sera, Sera and John Lennon and Yoko Ono's Happy Xmas (the War is Over). The second half of the students, of course, represented the Defendants.In the course of the students' work in researching and writing their summary judgment briefs, the professor and the students posted items here that raise and explore the legal and policy implications implicit in and related to the infringement claim and Defendants' fair use defense.The relevant documents the students had to work from were the following:
In light of the timeliness and open-endedness of the issues raised by the fictional lawsuit, the blog will continue despite the completion of the project and of the school year.
