Tuesday, February 16, 2021

Police use copyrighted background music to discourage filming by citizens, could lead to more racial profiling, a legal quandary


Trump supporters on Nov 14 after election, DC

Leonard French explains a new tactic by police to discourage filming by citizens.  Police play copyright protected music in the background so that it is a video will be taken down.

French explains that copyright infringement is a “strict liability offense” so that inadvertent playing of background copyrighted music outside and detected by automated filters, as by YouTube (even more so in the EU with its Copyright Directive with Article 17).

YouTube often flags a video and tells the content creator that monetization of the video will go to the music owner, rather than taking it down. (It may be taken down in some countries.)  That will not result in a copyright strike.  This has happened to me.  However in some extreme cases the content creator might be pursued for damages.  This could conceivably invite trolls into abuse of the new CASE Act.

You do have a right to film the police.  I’ve previously linked to a speech by Ford Fischer (News2Share).

French suggested that Fair Use might deal with this problem, and the Ninth Circuit has at least ruled in favor of the content creator.  The Supreme Court has never ruled on this.

French also mentions that the DMCA requires hosts have repeat infringer policies, which could cause accounts (like with YouTube) to be removed without adjudication of Fair Use claims. 

Congress needs to take a look at this.

I tend not to record demonstrations with incident music in the background.  

French suggests that the music industry could demand that police departments have licenses to use background music this way.

It’s also obvious that police could abuse this technique to get away with racial profiling, or worse.  Activists “even on the Left” should pay attention to this.  Yes, Black Lives Matter should watch French’s video.

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