BMG abused the law by issuing a takedown request of a Romney YouTube ad(thedc.com)
thedc.com
BMG abused the law by issuing a takedown request of a Romney YouTube ad
http://thedc.com/OWJiJm
11 comments
Regardless of the politics, the ridiculous lengths that BMG and the other labels are willing to go to in order to take down content that clearly falls under fair use simply boggles my mind.
Just to play devil's advocate, there is no such thing as "clearly falling under fair use." Fair use is always arguable and it's up to a federal judge to make that finding.
Using a song to parody something besides the song isn't fair use. If the song is used to parody the song itself or the artist, yes, but not to parody something completely unrelated. If that were the case, rappers could parody a police commissioner in a song which also happens to have samples George Clinton, and claim that because they were parodying the police commissioner the George Clinton sample is perfectly legit. Fair use just doesn't work like that.
While you're correct that it's not a parody, parody is not the only form of fair use. From 17 USC § 107[1] "...purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright....".
1- http://www.law.cornell.edu/uscode/text/17/107
1- http://www.law.cornell.edu/uscode/text/17/107
Was this video critiquing, commenting on, reporting news about, teaching or researching the song? No. It still doesn't qualify as fair use.
A work need not target the original in order to be considered fair use, you have to apply test all the §107 factors. As Justice Souter put it in Campbell vs. Acuff-Rose Music[1]:
"By contrast, when there is little or no risk of market substitution, whether because of the large extent of transformation of the earlier work, the new work's minimal distribution in the market, the small extent to which it borrows from an original, or other factors, taking parodic aim at an original is a less critical factor in the analysis, and looser forms of parody may be found to be fair use, as may satire with lesser justification for the borrowing than would otherwise be required."
Given that it seems fairly unlikely that there's a chance of consumers preferring this video to the original version of the song, the noncommercial use, and the length of the clip, I'd say it's got a pretty strong shot at being fair use.
1-http://www.law.cornell.edu/supct/html/92-1292.ZO.html#FN14
"By contrast, when there is little or no risk of market substitution, whether because of the large extent of transformation of the earlier work, the new work's minimal distribution in the market, the small extent to which it borrows from an original, or other factors, taking parodic aim at an original is a less critical factor in the analysis, and looser forms of parody may be found to be fair use, as may satire with lesser justification for the borrowing than would otherwise be required."
Given that it seems fairly unlikely that there's a chance of consumers preferring this video to the original version of the song, the noncommercial use, and the length of the clip, I'd say it's got a pretty strong shot at being fair use.
1-http://www.law.cornell.edu/supct/html/92-1292.ZO.html#FN14
You would think, just as a self preservation mechanism, some manager would have thought that they should alter their automatic takedown process to avoid taking down politician videos. Right now, not a big deal, but come late September or November, this process will get a lot of attention if it keeps doing this. I would bet that attention will not go well for BMG.
I hope this continues, and I hope it gets worse. That way the politicians get to see how stupid the process really is, and to see that the big content companies aren't their friends.
Auto-playing video, beware.
I don't like Romney (nor Obama) but taking down political ads because of alleged (not proven in Court) copyright infringement is ridiculous.
I don't believe that it is; its just the normal madness on YouTube, where they ban, delete, restrict and plaster with ads anything resembling something in their huge database of copyrighted stuff.
Where they create smoke barriers using strong words around "DMCA", but when you want to make a counter claim, there was never any claim and YouTube did this all by themselves.