April 30, 2009  ·  Lessig

As you may have read me tweet, the organization that hosted me for this talk:

Received a notice that Warner Music had objected to its being posted on copyright grounds. Apparently, YouTube’s content-ID algorithm had found music in the video that they claimed ownership to. The organization is apparently responding by disputing the claim. I’ll report back when I hear more.

Meanwhile, Keith Irwin (site) has kindly gone through the talk and identified all the music that is used in the talk. All of that use is, imho, fair use. But here’s the list. Thanks to Keith for the work:

Danger Mouse – The Grey Album
DJ Mystik – Inspector Gadget Techno remix (no idea what record label)
The Muppets – Mah Na Mah Na (Muppets Holding Company <- Disney)
Diana Ross and Lionel Richie – Endless Love (Motown <- Universal)
DJ Unk – 2 Step (Koch Records)
Soulja Boy Tell ‘Em – Crank Dat Soulja Boy (Stacks On Deck <- Interscope <- Universal)
Girl Talk (IllegalArt)
will.i.am – Yes We Can (not released by a label)
Kutiman-Thru-You – Mother of all Funk Chords (not released by a label)

UPDATE: Apparently the protest filed by the uploader to the block was successful. This was the segment that was blocked. We’ll see if it sticks.

UPDATE II: I now have received the text of the block on YouTube. It said: “Your video, Part 2: Lawrence Lessig – Getting a Network the World Needs at OFC/NFOEC 2009, may have audio content from Mahna Mahna by The Muppets featuring Mahna Mahna & The Two Snowths that is owned or licensed by WMG.”

  • http://www.cetraining.net Dr. A. Torres

    I think I understand your §107 Fair Use argument. My question is, even when copyrighted work is used within the penumbra of academia and lectures (thus strengthening the Fair Use doctrine, IMHO) will the fact that the lecturer using said copyrighted work is earning a FEE for that specific lecture trump the Fair Use defence to a copyright action?? Would it make a difference if the lecturer was not receiving any compensation for the lecture??
    Thank you in advance for your feedback!

  • http://www.velvetglove.org Marcelo Teson

    The Inspector Gadget remix isn’t Inspector Gadget, it’s “In The Hall of the Mountain King” by Edvard Grieg. No idea about the remixer or what label it belongs to (if any), but it definitely isn’t Inspector Gadget, which has a slightly different melody, even if they sound a little similar.

    The bright side is that you don’t have to involve a TV studio in your discussion of fair use. :)

  • http://gnuosphere.wordpress.com Peter

    YouTube’s content-ID algorithm

    Hmm. Can someone say, “code is law”?

    So they’re “disputing” the claim. Is this because they found out they have attacked a high-profile copyfighter? A copyfighter who will not only embarrass them should they follow through, but bring even more citizen activism against corporate interests (how many members are in Sweden’s Pirate Party now?)? Or was this a genuine mistake?

    What if a nobody (like me) had posted something similar to Youtube? Would I be able to tweet the absurdity of a take-down notice and hours later have the attack dogs go into retreat?

  • http://gnuosphere.wordpress.com Peter

    Oops. Strike that last comment if I misunderstood. “The organization is apparently responding by disputing the claim” – I read as “Warner is disputing that they wish to have the video actually removed.”

    Well, well…this could get interesting.

  • Sebastian

    Warner is nuts. And the rest of the industry with them. Cases like the one you experienced make me wish I could do something against them (that is not illegal). If a guy would knock on my door and ask for donations to harm the musik industry I would totally give money.

  • http://thetopbloke.blogspot.com DM Grant

    Dr. A. Torres makes the most compelling argument, one which I immediately thought of upon hearing about the take down notice. If one is paid to speak and that speaker uses this material within the presentation you enter that grey area in which I would personally be very happy to assist Mr. Lessig with research for his defense. At that point his defense may not be successful.

    However, on another note, Warner was not included within the list of audio content, therefore they have no ground for a legal claim to begin with. I will be watching this VERY VERY closely.

  • http://gnuosphere.wordpress.com Peter

    It’ll be tough to beat Lessig on this one.

    Maybe Warner can fly judge Tomas Norström in to help decide this matter.

  • http://secondthoughts.typepad.com Prokofy Neva

    Happy May 1st, Comrade. I am glad the capitalists push back against you now and then.

  • http://www.digme.net/blogg/ Håkon Styri

    Dr. A. Torres wrote:
    “the fact that the lecturer using said copyrighted work is earning a FEE”

    I guess there’s a small difference between charging for the work and charging a fee for performing the work. A teacher may be paid for teaching, but still her lectures and recordings of her lecturing may be distributed on a non profit basis (or for free).

    What I find peculiar in cases like this is that the work in question isn’t identified.

    Regarding the music used in the talk, I guess some track by the artist Girl Talk.

    The DJ Mystik track seems to include a theme by Grieg rather than being an Inspector Gadget remix. It may be a remix of Mountain King by the band 2PM.

  • http://www.digme.net/blogg/ Håkon Styri

    Poor proofreading, I was supposed to write:

    Regarding the music used in the talk, I guess some track by the artist Girl Talk should be listed as well.

    Anyway, I really enjoyed watching the above presentation.

  • Peter

    Off-topic question: what’s the font used in this presentation?

  • Peter

    Nevermind, it’s actually mentioned in the presentation: New Deal Deco.

  • http://asyserver.com/~kirwin/ Keith Irwin

    Marcelo:
    If you go to DJ Mystik’s MySpace page (http://www.myspace.com/tonytrandjmystik) and listen to the track called “Inspector Gadget”, you’ll find that it is exactly the song used for the first example of the AMV. The portion of the song used for the AMV starts 8 seconds in. It’s an exact match. I’m just reporting the song as he called it.

    I do think that you and Håkon are correct that this really isn’t a remix of the Inspector Gadget theme song, but rather that In the Hall of the Mountain King. But I’m not going to go around retitling someone else’s song.

  • http://indieuniverse.wordpress.com/ Charlie Dahan

    I don’t think it matters about being paid, plus the venue must have had a Performance License from ASCAP, BMI ad SESAC, where the songwriters would have been compensated for the use of his music (though not specifically) – the question if they didn’t was ‘was this a public performance’ or was it a private event – but almost all colleges have a blanket license from all three PRS’

  • http://www.velvetglove.org Marcelo Teson

    Keith –

    Interesting. I did not know that that was the actual title of the song. Thanks for the correction.

    I wonder if the DJ is violating copyright by titling the song that way even though his remix isn’t of that particular theme.

  • Jon

    This will get interesting will be following this case, as this is a big problem today. even if you are so unucky as having a radio in the background playing a song and you record a video and post it on the net you could get in serious problems for doing so if that radio was playing a copyrigted song…. it’s like the music and movie business is the king and the world is all a bunch of criminals.

  • http://www.knowprose.com Taran Rampersad

    These presentations just get better and better. But then, there’s also more to pull from – which is really even cooler. ;-)

  • http://holtenher.no Holten

    @Marcelo Teson

    DJ Mystik has apparently committed a trademark infringement with the (mis)titling of the “Inspector Gadget” remix, not a copyright infringement. Same kind of law, different type of intellectual property.

  • Wiktor Dolecki

    Dr. A. Torres:
    In my opinion following your argument leads to establishing a fee for using textbooks in schools and universities. Teacher is obviously using copyrightet textbook in course of his work and he is paid for that. From the law’s point of view it doesn’t matter whether it is a textbook or audio recording or picture that is used in the lecture.

  • http://www.themaskedanalyst.com/ themaskedanalyst

    This is not the first time a prominent person has been hit by YouTube’s fingerprint identification system. James Randi (aka “The Amazing Randi) had his account suspended for several days for the very same reason.

    Here is dprjone’s video announcing Randi’s suspension:

    http://www.youtube.com/watch?v=v7Cn_gjevik

    And here is Randi’s explanation as to what happened:

    http://www.youtube.com/watch?v=zngwTpkogeE

    Notice that Randi’s account was restored in 3 or 4 days because the copyright owner was a friend of the JamesRandi foundation and he asked YouTube to restore Randi’s account. One wonders how long it would have taken to get the account restored had this occurred to an ordinary YouTuber? And what if the copyright owner didn’t like what Randi had to say? Why should he have the ability to keep Randi’s account suspended via YouTube’s fingerprinting system? If there was a legitimate issue over Randi’s use of his material, then he should HAVE to file a DMCA in order to get Randi’s account suspended. At least that way he would be legally and morally responsible for the suspension. And if Randi’s use was an obvious Fair Use, then the copyright owner could at least theoretically be held accountable under Section 512 (f) for filing a bogus DMCA.

    Why is account suspension necessary do to a digital match even necessary—especially in cases involving fair use? It simply isn’t. And YouTube’s lawyers know that this isn’t required by law, as pointed out by EFF’s Fred Von Lohmann in the following video (see 38:43 – 41:10)

    http://www.youtube.com/watch?v=9WNEIwMguEY#t=38m43s

    Here is what I THINK is happening. I THINK YouTube installed their digital fingerprint matching system so that they can go into court and claim to be cleaner than clean when it comes to honoring and protecting copyright. I THINK they want to this to get them off the hook in the Viacom case. I am not sure what good this does them. If the Court determines that their earlier behavior does not fall within the DMCA’s safe harbor, then they don’t need this system to cover their ass. And if the Court determines that their earlier behavior is NOT covered by the safe harbor, then using this digital fingerprinting to get them off the hook isn’t going to work. It is like getting caught driving 100 miles per hour and hoping to get off easy by changing your driving habits and driving only 30 miles per hour on the highway instead. This doesn’t diminish the original offense, but it does create a new hazard on the highway. If YouTube is found guilty of copyright infringement for their past behavior, then the filtering system will not diminish their guilt. It will, however, stomp on our right to make Fair Use of other people’s works.

  • http://www.zone38.net/ codeman38

    I’m not entirely sure that the Hall of the Mountain King remix is DJ Mystik’s, despite being available on his MySpace page. I’ve found all manner of evidence indicating that the track is called “Razzia 2″ and is by an artist with the name “M”. Among other things, there’s this music video recorded from Germany’s Viva TV, and the cover of the vinyl single actually has “This Club Is Closed Forever” listed as a subtitle.

    Either way, it’s not released by Warner, so far as I can tell.

    Also, I happen to have this Muppet Show soundtrack sitting right here in my apartment; it was released by Rhino, a Warner-owned label. Still wouldn’t explain the continued presence of dozens of other Mahna Mahna vids on YouTube, though…

  • Tom

    I look forward to the day when a central music library can do rapid copyright checks on audio tracks.
    This should reveal that 90% of so called copyright music is in fact taken from earlier works.

    Remember Happy Birthday to you? Musics from 1875 yet Warner claims copyright on it! Thats not protecting any artists interests -thats theft!

  • Carlie J. Coats, Jr.

    This seems typical of Time-Warner.

    My copy of Verdi’s Requiem is published by a Time-Warner subsidiary, Walton Music. It claims “Copyright 1980 Walton Music Co. All rights reserved.”

    Verdi died in 1697.

    Such fraudulent claim of copyright should be punishable at least as severely as copyright infringement.

  • Sean

    Carlie,

    The copyright is on that particular recording of that particular artist or orchestra playing their interperetation of the song that was written by Verdi. You are right that the song itself is no longer copyrighted (If it ever was), but modern recordings of classic songs can be copyrighted. Someone else can record their own interpretation of themselves playing the same song and can copyright their particular recording as well.

  • Steve Szmidt

    Whereas I’ve never been supporting piracy I’ve grown so displeased with the rabid attacks by the RIAA that I’ve completely stopped buying music that they are associated with.

    When every, what would be, Fair Use is a black or white box to hide logos etc in videos you know things have gone too far.

    Seeing that the record labels payments to artists consists of approximately a dime, one can easily come to the conclusion that they have been actively ripping off artists for a very long time.

    If that was the case it would be the also typical scene of the thief calling others thieves.

    Their behavior is as typical as one can get. If you have ever seen how a thief defends (the so called) his property and is quick of accusing others, quite venomously, I think you know what I’m talking about.

    As Sebastian (above) commented on, I would welcome the birth of a new organization that would pay musicians, and artists in general, their proper share. And that at the cost of the total eradication of the current organizations.

    Their destructive grip on the industry must come to an end. I feel sorry for those who would suffer in the meantime, but it would be the greater good for all of us.

  • Carlie J. Coats, Jr.

    Sean:

    Let me clarify my original statement: My copy of the score of Verdi’s Requiem

    They are claiming copyright on the entirety of a score written in the 1690′s– a reproduction of that original score. Not copyright on some (nonexistent) editorial markings. And music layout is a mechanical process (google for music-score editing programs), hence should be no more copyrightable than the Atlanta phone book’s white pages.

    That claim is fraud, pure and simple. And since I should assume that a publisher is competent at his profession (including the laws relevant thereunto), I conclude that this is a deliberate, malicious attempt to steal the public domain from the public.

    Which should be punishable by jail time.

  • http://www.softmachinecubed.com Richard Walker

    Carlie J. Coats, Jr:

    I’m glad you clarified you are referring to the score of Verdi’s Requiem, not a recording.
    When you say “a reproduction of that original score” I assume you mean a photocopy of a previously published score, or a photocopy of a handwritten score.

    “music layout is a mechanical process” isn’t really the case, and a 1980 copyright here refers to whatever the publisher did (typesetting, editing) that “added value.”

    So, if you are correct that they “added no value” when “publishing” it in 1980, they are indeed being fraudulent. Otherwise, no.

    I had to get familiar with these details when I made my own edition of a posthumous work, which was added to by a modern composer, and re-published. By “re-typesetting” the work from scratch, I’m clear of whatever “added value” can be claimed by the publisher. The contribution by the modern composer is not a separate work, and should be considered an offering in memoriam of the composer who died before completing it, and not vehicle for a new intellectual property claim of some kind. I placed the entire thing in the public domain, with the very best of intentions.

    Many music scores that come into the public domain are indeed being scanned and put up at sites like imslp.org and free-scores.com.

    Messy and complicated indeed, and a pity one has to become familiar with the whole legal mess before one can proceed artistically. Glad to see awareness increasing in general, of Lessig’s work, and of the tragic situation!

  • Blake Brasch

    This is not really germane to the very interesting disscussion, but Verdi’s requiem was first performed in 1874 and composed over the 5 years prior to that.

    Regarding music publishing being a mechanical process, this is no doubt true, however why does the considerable degree of artisanship employed in the design of an authoritative score not deserve to be protected against the copy machine and scanner? That seems to fly against common sense. Or are manufacturers of copy machines and scanners the only ones deserving of compensation? The mechanical process of making a 3-in-1 is of more value than the process of producing a score to Don Giovanni in this scenario simply because I can’t build a 3-in-1 in my garage. The test of copyright validity should be, if it was worth copying, it must have value and is therefore worth protecting.