September 22, 2008  ·  Lessig

Russ Gooberman wrote to tell a happy story about Major League Baseball.

A month ago, I created a mashup clip of some MLB’s All-Star Game Home Run Derby. Specifically, I wanted to feature the record-breaking home run streak of Texas Rangers youngster, Josh Hamilton. So, I cut up some YouTube footage of his longest homerun of the contest, and set it to the audio of the final homerun sequence of the movie, The Natural. The next day, the mashup was featured on SportsIllustrated.com as their “Video of the Day.” Here’s My Mashup.

The following day, MLB Advanced Media sent a trademark claim to YouTube, and had the video taken down. I was sent this notice from YouTube:

“This is to notify you that we have removed or disabled access to the following material as a result of a third-party notification by MLB Advanced Media claiming that this material is infringing:”

Using the YouTube notification process, I sent a counter-notification to MLB Advanced Media, which read as follows:

“Under established Fair Use principles, if a work is considered transformative, it does not represent an infringement. This video in particular, is extremely transformative. First of all, it takes less than a minute of footage out of an over three hour exhibition. Secondly, the footage is edited differently than the original telecast. Thirdly, the entire soundtrack has been removed and replaced. Fourthly, the footage itself has been altered, added to, subtracted from, and has had the meaning changed altogether.

The work shows ONE of over thirty home runs Mr. Hamilton hit in the contest. Clearly, this cannot be any kind of substitution for the actual footage of the event. It is provided as symbolic footage to give historical context. As such, it specifically helps the interests of Major League Baseball in publicizing the significence of this event.

The purpose of this transformative piece was to provide commentary on the event itself, and to compare the event to a historically important moment in baseball history. This quality of providing commentary to further public discourse, is another specific component of Fair Use doctrine, that allows for the use of copyrighted material.

This piece is fully non-commercial. The website behind the creation of this piece takes in zero revenue, and is a free entertainment service. Non-commercial use is another standard by which copyrighted material is allowable for re-use.

The historical recording and capturing of Hamilton’s Derby performance belongs to Major League Baseball. The event, in itself, does not. The interpretation of such an event in the public discourse is not for Major League Baseball to determine or influence. These events that affect our perceptions of our national pastime cannot be copyrighted. The discussion and dissemination of ideas relating to them cannot be censored.

There are countless cases of MLB pursuing copyright infringements that go beyond their rights as copyright holders. Evidence of overzealous prosecution has been abundant. This Sisyphean struggle to stop any and all interpretations of MLB material will eventually fail.

In the past, Major League Baseball has been a pioneering force in American progressive social movements (see Jackie Robinson’ s breaking of the color barrier, or Curt Flood’s resistance changing the face of American labor movements). It is a shame that Major League Baseball has chosen to drag its feet and has failed to encourage a more open dissemination of information in this matter.”

Within one day, not only had MLB Advanced Media relinquished its claim on the video, but had gone out of its way to feature the mashup on the official MLB entertainment blog.

So, I guess the moral of the story is that if you take the time to use the proper channels, and let the giant media conglomerates know you’re willing to put up a fight, they may decide that you’re not worth their time. Hopefully we can use these tactics to forward the cause of fair use and creative commons-owned properties.

Happy news indeed.

  • http://lisaborodkin.com Lisa Borodkin

    That is a win-win story.

    While I don’t blame MLB for generally having a robust program of IP protection, Russ’s eloquently written counter-notice no doubt persuaded MLB to make an exception for this work. It’s a great example of an entertainment company understanding scale and working with its fans instead of against them. Russ gets to share his video with a wider audience and MLB gets a chance to show its fans that they can be a part of the entertainment experience as well.

    Thanks for sharing the notices and the links.

  • http://www.digitalproductions.co.uk Crosbie Fitch

    A culture in which corporate control is counterbalanced by letters from learned lawyers, is diametrically distant from any notion of ‘free culture’ – even yours.

    I suggest copyright abolition is by far the more natural reform that our culture is in desperate need of. Though it is of course unlikely to spring from the efforts of corporations and lawyers, given the unbounded prosperity they’d enjoy from a legally constrained culture precisely intended to favour the publishing corporations.

    Copyright – what is it good for? Absolutely nothing!

    Incidentally, you said ‘trademark claim’ – is that a typo?

  • http://www.digitalproductions.co.uk Crosbie Fitch

    Oops! I should have said “Incidentally, Russ said ‘trademark claim’ – is that a typo?”

  • G. S. Arnold

    Russ’s eloquently written counter-notice no doubt persuaded MLB to make an exception for this work.

    Uhh, I think Russ’s point was that MLB doesn’t need to make an exception because it has no standing to do so.

  • http://nilesgibbs.com/ Niles Gibbs

    Someone (EFF, CC, cough cough) should make a DMCA takedown fair use response generator using this as the boilerplate. Just click through a list of transformative options, put in the offending rights holder’s name and the work in question. Fight fire with fire.

  • http://lisaborodkin.com LIsa Borodkin

    [i]Uhh, I think Russ’s point was that MLB doesn’t need to make an exception because it has no standing to do so. [/i]

    Exception refers to business practices, not to the copyright doctrine.

    My point is merely that the parties communicated, and wisely arrived at a business solution rather than quibble over who has standing or not. You get more flies with honey than you do with vinegar.