Friday, October 19, 2007
Home videos with incidental background music getting hit by takedown notices; speakers fight back
Takedown notices for amateur videos that include copyrighted background music are creating legal and social controversy, as in Catherine Rampbell, The Washington Post, Oct. 19, 2007, “Standing Up to Takedown Notices: Web Users Turn the Tables on Copyright Holders,” here.
These notices seem to follow the safe harbor provisions of the DMCA.
Sometimes YouTube has gotten notices when amateurs have shot video and used copyrighted materials incidentally playing on home entertainment systems. Of course, if a soundtrack is fed with copyrighted music, that would be illegal; incidental music (which is actually acceptable in the “Dogme” filmmaking technique) can cause issues too. I wonder what happens when someone goes to an outdoor event, like a July 4 celebration or an AIDSwalk, and records music that is performed outdoors by guest groups incidentally. This activity seems to be much more likely to result in DMCA takedown when posted on YouTube, Ebay, or a large service that copyright holders can easily track (as with P2P violations) than when posted on personal domains, which are harder to find.
In some cases, home users are starting to fight back and countersue for abuse of copyright law. It simply seems unsettled as to whether incidental background is “fair use.” I think it is, because the quality of the music is never comparable to what a customer gets when paying for the music in normal channels. Companies believe that they have an absolute fiduciary responsibility to protect all of their intellectual property, even in circumstances that seem frivolous or to violate common sense. Companies may be trying to squash uses like parody that are considered legal examples of fair use but sometimes subjective in nature.
I think a partial solution is to expand the capabilities for legal use. Music publishers should set up services to allow licensed music to be legally purchased on credit cards and downloaded for uses in self-published videos, possibly to be mixed into videos with products like Roxio which are often sold with computer purchases or are available online for either PC or Mac environments. (Higher end products are, of course, Final Cut and Premiere and Macromedia Flash).