Ninth Circuit court and YouTube

About a week ago, the Ninth Circuit court made a ruling concerning DMCA policies and takedown notifications utilized on sites like YouTube, app stores, etc.   Here is a brief summary of the major points:

  • The court found that Universal was in violation of 512(f), a statute which     prohibits misrepresentation by a copyright holder when issuing a takedown notice.
  • Fair use is legal use, but it doesn’t excuse illegal copyright infringement.
  • The Ninth Circuit Court’s decision runs contrary to other circuit court decisions.

The Fair Use Analysis

Lenz doesn’t actually bring the fair use analysis into the ruling itself, nor did it rule one way or another on whether the “Let’s Go Crazy #1” video constituted fair use. That wasn’t the question presented to the Court. Instead, the Court offered some guidance on the manner copyright owners must consider the fair use analysis when issuing takedown notices.

The rest of the detailed summary of judgment can be found here:

Although, I want to focus on this particular tenant, because I feel this is relevant to the automated systems of Content I.D. matching and claiming on Youtube.

A Copyright holder’s consideration of fair use need not be searching or intensive. The court proposed that a computer algorithm setting standards based on the four factor test and individual review of those that aren’t culled through the automated system would be sufficient.

Even though prior to this part, the court apparently stated this:

Lip service insufficient. It isn’t enough to say “we don’t think this is fair use.” There must be some evidence in the takedown notice issuance procedure that the four factor fair use test was actually considered in the analysis of whether the use is infringing.

The first thing to consider here is that this decision is made by the 9th Circuit court, which means that the judgment is only valid for a select few states in the west of the U.S.A.  Furthermore, it runs contrary to decisions made by other circuit courts, which means that we could be seeing this issue being brought up to the Supreme Court fairly soon for a final verdict.

The second thing to note here is that even though the court has stricken down the notion of ‘lip service’ as sufficient for a takedown notice, it then expresses faith that a computer algorithm can be developed that considers ‘the four factor test’ in determining how to issue them.

It’s tough to tell whether this will have an effect on the copyright situation for YouTubers.  If this decision is to be seen as the benchmark on which YouTube reconsiders its requirements towards copyright owners/content I.D. match systems, then some progress has been made.  Specifically, this places channels based on critique and online debate in a much better position than they were before.  This goes especially for the video response debate, where YouTubers inter-splice clips of other YouTubers or Television Shows/Movies along with their own for the purpose of debate or critique.

Hopefully, YouTube would enforce a stricter standard on Content I.D. companies who specialize in audio content I.D. matching and takedown notices.  This is something that’s been woefully lacking with youtube, with horror stories popping up of people being flagged for Public Domain and Creative Commons material–material that is supposed to be immune from these actions.

Since this judgment was against Universal, the bigger companies, such as Warner Bros. and Sony may need to take a step back.  Hopefully, YouTube gets pressured in the near future to obliterate the random companies that have popped up to try to claim anything and everything they can match a word to.



Mainstream Music Critique (be more offensive)

If there’s anything that can be said about the current stream of pop stars on the radio station, it’s that they’re about as offensive as a lollipop with its wrapper still on.  Nothing really thought provoking or even the slightest bit aware of what’s going on around them — even on a local level.  And when things get “offensive”, it’s almost always for shock value, for which has been done a million times before in much edgier ways from people who graced the radio waves generations before them.

And this is pretty much ubiquitous too.  I recently drove coast to coast with my family– a four day trek across I-90 from the east coast to the west–and when browsing the radio stations of every part of this country, everything was the same.  There was nothing different in the channels we listened to, really.

These days, country music is really just pop music with an added violin and not even a western accent, but with the subject material of what the latest bar was visited or some ‘grandiose’ ‘patriotic’ anthem that cracks under its own weight of false emotion.

A particular anomaly popped up in the middle of the drive, though.  A playing of ‘Shutting Down Detroit’ by John Rich, which apparenlty was released in 2009 (I don’t follow country that closely, admittedly).  This song, firmly in the Country genre instead of a clumsy half foot into hip hop or pop, is a protest against the bailouts for corporations that happened just after the 2008 crash.  Suffice to say, it was a nice breath of fresh air to hear something on the radio pulled back on in your face thematics and notched up a bit on substance.

For one, this six year old song is nowhere near irrelevant and probably even more relevant now in present day.  The economy recovery has been a sham at this point, and we’re seeing our country being dragged back into recession after years of the government telling us things are looking up.  To make matters worse, for two years now, our government has been beating the war drums and drumming up shabby pieces of propaganda for any excuse to drag us back to war.

Surely the topics of poverty and social unrest should be on the minds of people all across this nation, right?  And in response, music should reflect some of those concerns in the lyrics and the compositions.  In a previous age, economic hardship and government injustice were the targets of scathing criticism from at least the hip hop community.  Similarly, bad economic conditions in the early nineties served as a brooding platform for grunge to emerge and serve as therapy for those enduring that recession.

Again, perhaps I’ve not listened to enough radio music to know, but right now it seems like the content of mainstream music has been dulled to an extremely narrow and non-provoking range of love and break-up songs, peppered by something about parties and regurgitated declarations of rapper bling or whatever they’re calling it these days.

I’m reminded of a book I read in high school.  You may also know it as Fahrenheit 451.  And if you’ve read that book and understood the fabric in which the society existed in that book, and the underlying threat of nuclear war that was present–and ignored– throughout the entire story, then you’re aware of the similarities we have to this book in present day.  In 2015, there’s been a war against free speech and art in precisely the age in which we need to be offensive–we need to challenge the ideas coming from the official narratives being presented to us by our governments and not ignore them.