Copyright Talk

If you pay any attention to digital technology and copyright issues, you know that there is and has been a huge issue regarding the posting of copyrighted material without permission on user sites - and YouTube has been the lightning rod for this issue because it’s, well, it’s YouTube. YouTube is huge beyond belief, it is incredibly user friendly, and everybody and their kids (mostly their kids) is using it now.

For some time now, Viacom and YouTube have been in a big lawsuit that Viacom filed against YouTube (and against Google, which owns YouTube). The simple description of the reason for the lawsuit is that Viacom thinks YouTube should be trying harder to prevent copyright infringement on it’s site, and YouTube is saying it doesn’t have to do more.

Before I give you the interesting recent development in this case, I need to give you a capsule review of what the overall fight surrounding websites that include material posted by users is about. First, it’s not just about YouTube, it’s about any site that includes content from users, including forums and bulletin boards. Here’s the whole issue in a nutshell: Copyrighted material should not be published without the consent of the owner. In the paper publishing world, it has generally been the responsibility of the publisher to make sure that ther eis permission for everything that is published. In the internet world, websites have typically claimed they merely provide a space but are not traditional publishers, and therefore it is the responsibility of the person posting the material to make sure that there is permission. Which means that discovering and fighting infringement becomes an after the fact job for the owner of the copyrighted material instead of a before the fact preventive job of the publisher. And that is the crux of the fight - does the publisher/website have to do the work, or does the copyright owner have to do the work?

In the Viacom/Google case, much of the evidence has to do with which party is in the better position to do the work of identifying potential copyright infringement. Google has said, basically, that it is not economically or technologically feasible for them to review everything posted. Viacom has said the same thing about its own position.

Now, with that background, here’s the newest development in the case. Viacom has been using a small company to collect information about material posted on YouTube in order to build its legal case. Google is now seeking access to the documents provided to Viacom in order to prove that Viacom can, in fact, collect the information it needs to pursue copyright infringements on YouTube. In other words, Google believes that by collecintg information on just how much of its stuff is impermissibly posted on YouTube, Viacom is proving Google’s case that Viacom is perfectly capable of doing the work itself.

Sounds a lot like two siblings squabbling over who has the most time to do their chores. You read more about this in The Wall Street Journal’s Market Watch.

Cheers to the University of Arizona, which has just created an office copyright education, staffed and housed in the University library. The University that says the role of the new office’s “exclusive role will be to educate students, faculty and staff about copyright law.”

Copyright issues are complicated and the digital reproduction capabilities that we now all possess have made the need for better education on copyright law urgent and unprecedented in the hostory of copyright. This is a step in the right direction.

Okay, maybe not quite recession proof, but conventional wisdom holds that entertainment fares better than many industry sectors during a recession. And of course, that is good news for the many individual copyright holders out there plugging away at their craft. But don’t think the entertainment industry will be completely unaffected by the recession, because it definitely will feel the need to scale back and pinch pennies as consumers seek the best bang for their limited bucks. And that leaves certain segments of the industry in a great spot to increase their business, among them DIYers and small indie publishers and music labels.

Because consumers now have a vast array of choices when it comes to their entertainment, they will have the luxury of looking for less expensive options. While everyone likes to point to the rise in movie ticket sales during the depression as hard evidence that people will spend money to “escape” from their troubles, you have to remember that movies were only in movie theaters back then. If Depression-era consumers could have chosen between a 50 cent movie ticket and a nickel video rental, which do you think they would have chosen?

Small entertainment producers have an opportunity to soak up some business from economy minded consumers because their costs are typically lower, the profit margin higher and therefore more room to promote attractive discounts to savings hungry buyers, and adjustments to marketing and sales can be made much more quickly than larger companies can manage.

Indie musicians, self-published authors, small businesses - this is your time to find the silver lining and shine. You’re in this business because you’re a creative person, so let’s get creative!

Tomorrow, October 22, marks the 70th anniversary of the very first xerographic image.

Copyrights are easier to control when the means to copy material is relatively difficult. The Xerox machine was a huge event in the history of copy making. But it wasn’t until digital reproduction arrived that the problem really started. Digitally reproduced in many cases are indistinguishable from the original, and this is the very first time in history that reproductions have been as good as the original. But even now, it is primarily audio material that is substantially threatened, because, despite the concerns over written material made available on the internet, what publishers and authors are just now discovering is that people will still buy books, even if they can read the text on their computer. Bloggers put out books that sell, even though all the material is available on their blog. Publishers have made entire books available for free download, and still sold as many traditional books as exepcted.

Even in the case of music, many people still buy CD’s for the packaging. But that does not seem to be the case for younger listeners, which means that music is at risk of losing sales in the digital age.

A couple of guys made a big splash on YouTube with somne video lessons on how to play guitar that became VERY popular.

Problem was, they had not obtained a license to publicly perform the popular songs they were teaching. Now before you worry about every music lesson going on in the back rooms of music stores and band halls of schools all over the world, this was not the normal music lesson scenario. Instead of a one on one lesson between a teacher and student, these were videos of a musician playing the songs, and the videos were placed on YouTube with the specific intent that they would be viewed by the public - and they were, viewed by hundreds of thousands of people, in fact.

Although the two guys teaching in the videos thought their use of the songs would be welcomed by the songwriters, that is not their call to make. The owners of the song get to decide whether they want the song used, and if they do, the owners of the song get to decide how much they think is a fair price. if the owners believe free is fair and they want to let the song be used for free, then they can decide that. But the other side - in this case the performer - does not have the right to move forward on a plan that THEY think is fair whether or not the other side agrees (and in this case, the other side hadn’t even been asked what they thought). It would be like a couple going to look at a house they were considering buying, and having the seller close the deal and obligate the couple to terms the seller determined were fair but that the couple were never told about until after the fact. it doesn’t matter how objectively “fair” or “beneficial” a use of a song is, the owner still gets to decide whether they want to agree.

In this case, the popular video lessons were saved when the two teacher guys and the owners of the song rights worked out a partnership on terms that all parties actively agreed to.

Here’s the full story.

A fascinating report on Wired.com highlights copyright fair use principals again. Apparently, the McCain presidential campaign has been attempting to use YouTube as part of its campaign strategy, but they have repeatedly seen their videos pulled by YouTube after DMCA takedown notices were sent to YouTube from various media companies. The McCain videos have been pulled for using clips from debates and speeches, and for using some pop songs without specific rights grants.

According to Wired, McCain’s legal staff has written to Google (which owns YouTube) complaining that the copyrighted material used in the pulled videos fell under the fair use doctrine, and should not have been pulled without a review by Google. Wired notes that Congress generally has been unwilling to listen to very much on the subject of fair use.

It’s an interesting shift in the perception of YouTube. Wonder what McCain will do on this subject when he returns to politics - either in the Senate or the White House, he’d be in a position to champion greater deference to fair use principals.

Remember the Boston Tea Party? Over “No Taxation Without Representation?” It was basically a big riot the American colonists had because the English were imposing laws on them without giving them a seat at the table when the laws were developed and decided upon.

If there had been lobbyists back then, we wouldn’t have had a cry for votes and a big riot, we would have had a coalition, probably called the Coalition of American Colonists with an office in Boston and a field office in London. The Coalition would have voiced an opinion on behalf of all the colonists, some of whom would have felt that the Coalition leaned too far Tory, and maybe even would have uncovered some supposed evidence that the rent for the office in Boston was being paid by a shell company for the King, and then we would have the formation of the True Dirt Farmers of America, and probably a lot of pamphleting around the major cities.

At any rate, that’s how it works today. We may be on our way to another Boston Tea Party over the music distribution and royalty conundrum, or we may be on our way to an explosion of “educational” (which is code for lobbying) groups.

The latest new group is the Featured Artists Coalition. Although based in the UK, it includes international recording artists and has legal issues from both the UK and the USA on its priority issues list. Any performer is invited to join, and membership is free. Hmmm. . . . wonder where the finding is coming from? If tehy plan to do very much lobbying they will need to spend time collecitng input from members, developing statements, and travelling to hearings and meetings of the lawmakers. There’s going to have to be some money somewhere, but I agree with their statement that performers have not been well represented - if at all - in copyright discussions. It’s a necessary addition to an increasingly complicated discussion.

There’s a saying among lawyers that bad facts make bad law. The point of the saying is that courts and juries really do try to be fair and just most of the time, and sometimes the facts of a case are just so bad that the court will try to make sure justice is done no matter how much the law has to be “twisted’ to get it done. But then you’re stuck with that twisted law the next time around.

I worry that the corporate copyright crusade will wind up causing some bad law. What is percieved as greedy overreaching by enormously wealthy corporate giants in trying to shut down copyright infringements may eventually cause the loss of some rights under copyright law. And that would be a shame.

I was reminded of this reading a story from Ireland about an attempt to collect royalties from nursery schools for showing movies owned by Disney and other big Hollywood studios. The story is here. The schools - called “playschools” in Ireland - were offered a single fee blanket license for each year, which would cover unlimited movie showings. This is the same type of license ASCAP and BMI grant to bars and restaurants for the use of recorded music in their establishments.

Legally, there is little question that showing studio movies in the schools is a public performance, and nearly all videos and DVD’s sold expressly say that the purchaser of the video or DVD does not have permission to use it for a public showing. The problem is, most people commonly believe that schools are, or should be, exceptions, and that showing the movie without charging money is, or should be, an exception. Even though neither of those things is true, people often operate on those incorrect assumptions, and there is a collective feeling of being “picked on” when someone like Disney comes knocking and tells you that you can’t do what you want with your property, even though you feel like you’re not hurting Disney in any way at all.

In the days before video cassettes, the problem rarely existed, because the cost of purchasing films was prohibitive for most individuals or schools. So if you wanted to show a Hollywood movie at a school, you rented it from a service, and the rental included the permission and royalty payment to actually show it in the school. So while schools that show movies had always paid the royalty prior to video cassettes, they didn’t really know it. So when videos, and now DVD’s, came out, it felt like they were just being cruelly picked on for showing the video that they had lawfuly paid for.

It’s difficult for most people to truly grasp the concept of owning an object while not owning the right to do anything you want to with it. Especially when it seems so difficult to try and do what you’re told you should do - have you ever tried to figure who to call at Disney to ask if you can show your copy of Lion King in your kindergarten classroom?

If the tide of public opinion continues to view lawful activities as overreaching intrusions, I fear we may begin to make bad law.

The Copyright Royalty Board, the entity that sets the statutory rates for use of songs in audio recordings, has been considering a proposed increase in the rate for digital downloads. Thursday they ruled to keep the rate at the present 9.1 cents per song per download. No written decision has yet been issued, so we don’t yet know the rationale used by the Board. The decision may shed some light on when and whether rates may increase in the future.

Generally, the owner of a copyright has the right to decide how, when, and by whom the copyrghted work is distributed. In the case of song copyrights, though, there are some uses that are automatically granted without the express okay of the owner.

The copyright owner must consent to the very first publicly released recording of a song. If your song has never been released before, no one has the right to record and release your song unless you say okay.

That all changes after you say okay. Once there is a publicly released recording of your song, anyone can re-record it under a compulsory mechanical license. You are entitled to royalty payments at a rate set by law for each copy of the recording produced, but you do not have the legal right to stop a heavy metal band from recording your folk protest song.

You also do not have the right to keep recordings of your songs from being played on the radio or over satellite, cable or internet stations, but you do have the right to collect royalties for those spins. Royalties for radio play are collected the performing rights societies on your behalf - ASCAP, BMI, and SESAC.

You do have the right to consent to any use of your song set to a visual medium, or to uses other than purely audio releases.