Don’t Tug on Superman’s Cape

Update: Ben Sheffner has a great post over at Copyrights & Campaigns on this issue. Evidently it wasn’t a DMCA take-down; rather, YouTube’s audio fingerprinting system automatically flagged the work and, following Warner’s settings, removed it. Evidently the poster can fill out an on-line form to protest and, in this case, the video’s been restored.

In some ways this is better, and in some ways worse. Fingerprinting can catch a lot of infringement, but it’s a rule rather than a standard: there’s no way for a content ID system to figure out fair use. (Heck, lawyers are bad at it.) The dispute resolution form improves things, but I wish the system notified the poster first (with, say, a deadline for response) before taking down the allegedly infringing content.

This is a nice reminder that the Internet is a world of private power. There’s no right to post to YouTube, and posters get whatever process Google decides to afford them when content appears to be infringing. In many ways, this recapitulates the standard public choice problems of copyright law: copyright-owning interests are concentrated and powerful, and copyright-using interests tend to be dispersed and weaker. In that sense, we’re probably fortunate that the content ID take-down system is as thoughtful as it apparently is. /Update

Warner Music has issued a take-down notice under the Digital Millennium Copyright Act for the video slideshow of Larry Lessig’s keynote talk at the OFC Conference in San Diego in March 2009. This can only be viewed as 1) a sad commentary on automated detection of copyrighted material, 2) a serious error in judgment, or 2) a deliberate provocation. Naturally, Lessig is going to fight, which I assume begins with a counter-notification under Section 512(g)(3) of the DMCA. I’ve been going over the myriad of clips in Lessig’s talk, trying to figure out which might be the source of Warner’s notice. It’s an interesting question whether Warner might be liable under 512(f) of the DMCA, along the lines of Lenz v. Universal‘s claims, for failure to issue this notice in good faith. (Is it sufficient to believe in good faith that all uses require permission, or to hold a completely unreasonable yet devoutly believed view on the topic? I’m dubious – most subjective standards have some objective grip at bottom.) It’s hard to see Lessig’s utilization of the clips as anything but fair use: they’re quite abbreviated, the use is in a non-traditional educational setting, and there’s no market displacement of the originals. Not sure, in other words, how this fight started, but I have a sense of how it’ll end

One Response to “Don’t Tug on Superman’s Cape”

  1. From Lessig’s own description of what occurred, the removal of the video was almost certainly NOT under the DMCA: