Is This Cop Playing Sublime’s Santeria to Avoid Being Livestreamed? | Hacker News Reader

Is This Cop Playing Sublime’s Santeria to Avoid Being Livestreamed?

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30 pointsnickthegreek7 comments

IANAL

I think if this goes to court, there's a very real chance that officer's doing this is ruled unconstitutional on 1st Amendment grounds, or the DMCA is required to be reworked.

In Matthew Green et al vs US Department of Justice, it was the court's opinion that the DMCA only requires intermediate scrutiny, because it's abridgement of the 1st Amendment was a "content-neutral regime". Intermediate scrutiny basically just requires that the law isn't arbitrary. It's not a terribly high bar.

I think there's a valid case to be made here that this officer's actions indicate usage of the DMCA in a "content-based regime", whereby the government is selectively forcing lawful 1st Amendment speech into this process based on it's content. It is the court's opinion that that would trigger strict scrutiny “which requires the Government to prove that the restriction furthers a compelling interest and is narrowly tailored to achieve that interest.” Arizona Free Enter. Club’s Freedom Club PAC v. Bennett, 564 U.S. 721, 734 (2011)

I think the government's "compelling interest" is undisputed (protection of innovation via copyright), but it could be argued that the DMCA is not "narrowly tailored" to achieve that purpose. Someone publishing a video of police abuse wherein one of the officers plays "Santeria" is not going to stop Sublime from making more music, nor is it likely to deprive them of any revenue. Furthermore, the structure of penalties wherein platforms can be penalized encourages overly broad suppression of speech; even speech that should be protected because it doesn't infringe. Platforms can be penalized for attempting to protect what they believe to be lawful speech.

Here's that opinion from Matthew Green et al vs US DoJ as well. The whole thing is worth a read because of the parallels, but page 38 and on are where most of this came from. https://www.documentcloud.org/documents/6188576-2019-06-27-2...

While Instagram doesn't appear to have taken down the video yet, this seems like an interesting situation that is open for exploitation by bad actors.

Such as cops.

It might, but on the flipside, those bad actors are also opening themselves up to copyright infringement claims from the RIAA. I mean you knowingly played a song on a stream with many people watching without a license.

If you aren't streaming you have no responsibility to safe guard the copyright for someone who does, it isn't a copyright violation until someone publishes it, and that copyright violation is on the publisher.

He knowingly played music, the person live streaming knowing streamed it to those viewers.

What's interesting is that Instagram seems to be taking a really liberal approach to DMCA, and I'm guessing if they get an official take down notice, those video will come down, or at least be muted.

What would be really interesting is to see someone build an application that will mute, just the parts of the audio that are copyrighted, and try to isolate, the speakers audio.

It's not just streaming. You can't play copyrighted music in public places without paying the royalties, whether someone is recording it or not. At least in France it's like this. Anyone that want to play music in public has to pay the SACEM which is like the RIAA.

In the US you can, as long as it isn't a "public performance" (there is a lot written on how to define this from a legal perspective) or any other commercial sense, I.E. Playing it in your business.

The exception is playing the radio.

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