Major label uses DMCA to take down Romney ad of Obama crooning | Hacker News Reader

Major label uses DMCA to take down Romney ad of Obama crooning

arstechnica.com

58 pointsshawndumas35 comments

Ars claims this is "as clear-cut a case of fair use as can be imagined", but courts have established that political use, while an important factor weighing in favor of fair use, is not the only factor, particularly when concerning the wholesale appropriation of the work.

http://www.callawyer.com/cle/cle_story.cfm?eid=898723&ev...

See for instance Long v. Ballantine, where the court ruled against a political campaign for their unauthorized use of a photo in advertising.

Likewise, McCain settled with Browne over the former's use of his song in a campaign video, after the court rejected the McCain campaign's fair use argument.

http://www.scottandscottllp.com/main/refuse_to_dismiss_music...

Did you read the same article I read?

"...seems like as clear-cut a case of fair use as can be imagined." They don't 'claim this is,' they say 'seems like.' And with that phrase, I am primed to read a sentence later in the paragraph on why that's not the case.

The article goes on to say "copyright law explicitly mentions commentary and criticism as justifications for fair use." I don't even see a mention of 'political use' to defend the "seems like" phrasing.

Unless they edited the article between views, I'd suggest you've incorrectly characterized the article.

To be perfectly honest, I was so pleased to remember about Long v. Ballantine that I stopped reading at that point and came here to post.

With that said, I don't see how Ars later characterizes the clip as anything but fair use. Looking specifically at

The Romney ad seems like as clear-cut a case of fair use as can be imagined. Obama's singing is a core part of the ad's message, and copyright law explicitly mentions commentary and criticism as justifications for fair use. And it's hard to imagine the ad harming the market for Al Green CDs or iTunes tracks.

Ars seems to be saying that the ad meets two of the criteria for fair use: that it is commentary or criticism, and that it has no effect on the work's market. How does this strike you as indicating that they are rejecting fair use?

This was my parsing of the article as well. The video could be viewed as being either a "commentary" or a "criticism" or both. The continuation "and copyright law explicitly..." is reinforcing that author's belief that this is the case.

I'm fairly sure the "commentary and criticism" exception pertains to fair use use of media that refers to the media itself (e.g. film reviews, cultural commentary, satire of a popular program etc.)

All this is very different from declaring "I'm producing a work of commentary or criticism and therefore I can do anything I want with whatever I find, even if the point I'm making relates to something else entirely."

That's just a rookie move. Rupert Murdoch really was right about Romney needing to "drop old friends from team and hire some real pros."

https://twitter.com/rupertmurdoch/status/219393140245807104

So if you 1) know that anything you put up on YouTube can be hit with a DMCA takedown and 2) you have music in your campaign video and 3) other candidates have been bitten by this in the past, why would you post on a site you don't control?

If the other party is doing it, you don't really have a choice. You either respond or you ignore it.

Which candidates have been hit by this? The "music" in the campaign video was Obama singing. If I were posting such a video I would not automatically expect it to be hit by a DMCA takedown.

Well, Someone Not Obama owns the rights to the lyrics. But that's the only grounds I could think that such a takedown request would be plausible. Compulsory licensing (which says once it's been recorded and published by someone, it can be recorded and published by anyone provided they pay the lyricist and composer the statutory fees) does not address fair use of any particular recording.

So now, IMHO, we're left with whether it's OK for Romney to use the recording in a critical manner. And I'd say yes. I think it's beyond 'would not automatically expect' into 'there's no way anyone could claim...'

You are spot on. The original headline is wrong as it is not a major label but a major music publisher who is responsible for the takedown. BMG Songs is (almost) exclusively representing songwriters and composers - who can be signed to completely different label (in the case of Al Green this should be currently an EMI sub-label).

John McCain was hit by it as well in 2008[1]. Particularly appropriate, since the are both GOP presidential candidates (not implying there is a conspiracy or anything, just that the campaign managers should have seen it coming).

1. http://news.cnet.com/8301-13578_3-10066738-38.html

For those interested just in hearing Obama sing, you can watch the sample in question from an ABC News broadcast: http://www.youtube.com/watch?v=d8Qu8nThJ5w&t=15

Only thing missing is disclosure of BMG contributions to each of the campaigns.

It's owned by Sony Music. According to this site the breakdown for individual donations is 73% Democrat versus 27% Republican.

http://influenceexplorer.com/organization/sony-music-enterta...

Finally a subject on hn that I can shine on with random details: BMG Songs is not owned by Sony Music, but by Bertelsman and some private equity firms. It predecessor BMG Music Publishing was not part of the merger with Sony. In fact BMG Music Publishing was later sold to Universal Music Publishing. BMG Songs, the company initiating the take down, is a relatively new around the block, but largely run by ex-BMG Music Publishing guys. Their portfolio of music exists almost exclusively through buying up independent publishers (i.e. rights).

I'm seeing nothing that actually proves that the DMCA was used. We know already that major record labels use Youtube/Googles "ContentID" system - which in itself isn't a DMCA claim system (although it can lead to it). Given the speed of the takedown, it seems likely this system was used.

Until one side comes out and confirms that they used the DMCA rather than the ContentID, trying to point the blame at the DMCA seems to be rather hasty.

Speedy or not, content identification wouldn't have recognised the lyrics from Obama's singing. YouTube's system is sold to users as a way to keep its DMCA safe harbour (YouTube to McCain in 2008: http://arstechnica.com/uncategorized/2008/10/youtube-to-mcca... ), and YouTube needs to own up if it goes beyond that.

You do realize these takedowns are automated? No one at a label sat there and clicked "report"

and that is much of the problem - an assumption of guilt based on a spray-and-pray algorithm - and why not, as there's very little downside for a false claim.

The problematic aspect seems to be, that a) Obama was singing the song and b) that there are lots of videos on YouTube of exactly this segment that were not taken down. And in political campaigns there are no automated take downs - just devious acts of sabotage by the opponent ;)

By title? By summary? Surely not by parsing the audio. If automated, why so quick to take down, when there's videos that have been up for years that are the original recordings?

Odd, it seems the examples given of politicians being hit by take downs were Republican. It can't be that those in the Internet and Entertainment spaces are predominantly liberal and use that to silence their opponents can it? Nah...that'd be crazy to think freedom loving liberals would want to suppress someone else's speech.

I flagged you. Sorry, this just looks like flamebait/trolling to me. If you want to believe I'm a Liberal Elite silencing your "discourse" I guess I can't convince you otherwise.

Google does overwhelmingly support one party over another, and was the 5th largest donor to Obama's 2008 campaign:

http://www.cbsnews.com/8301-505123_162-46840313/google-polit...

Probably had nothing to do with the takedown, as YouTube says they take down everything with a DMCA claim attached. Still, you can't dispute the fact that the parties involved aren't objective: the money says otherwise.

Why trolling? If we criticize censorship of Kim Dotcom or Julian Assange, and express anger, is that trolling? If Westboro Baptist or Glenn Beck abused the DMCA to silence their critics, we'd rightly be waving pitchforks. No different to criticize what appears to be an attack on free speech using the DMCA. Regardless of your political stance, if there appears to be an agenda to silence someone on the one side, then it's fair to label those on the other side as crazy and evil.

Hacker News is not a place to discuss or engage in partisan politics. Criticizing attacks on free speech is great. Blaming people of a certain political persuasion for problems and (especially) furthering those arguments with juvenile sarcasm have no place here.

It wasn't either, just a sarcastic way to point out that these types of takedowns hit Republicans regularly while Democrats skate by. It's also quite clear a lot of this exact same clip can be found on YouTube alone, just without Romney's attacks voiced over. It doesn't take a genius to see that SOMEONE who is liberal(or lots of someone's) are clearly going out of their way to target Republicans with DMCA take downs.

There isn't much "liberal" about Obama restricting civil liberties, continuing the use of torture, continuing the use of spying against American citizens without warrants, stepping up the assassination of leaders abroad (without trying them in a court) and killing civilians around the world. Perhaps the only difference between Democrats and Republicans is the number of people killed; Bush had the chance to kill more Iraqis, Clinton fired missiles on a Sudan factory in Aspirin, Obama prefers to use drones to kill Afghans, Yemenis, Somalis and Pakistanis.

http://www.washingtonsblog.com/2012/04/obama-has-prosecuted-...

If you just happen to be an 18 year old male kid in an area and Obama wants to bombya, you're not a dead civilian, you're a dead militant. Previously they would assume that you're a militant unless proven otherwise. Now 18 year old male is a proven militant by definition.

http://www.juancole.com/2012/05/how-obama-changed-definition...

I wonder if this is payment for the presidents support for SOPA?

Obviously not directly and previously negotiated, but maybe an I scratch you, you scratch me situation?

So from now on, politicians could just sing all the reports they want to bury to the tune of popular songs, and the automated copyright filters would take care of the exposure problem.

And now for the budget, this year sung to the tune of "Happy Birthday to You".

Now the big question: Would either a Republican or a Democrat dare to get rid of DMCA (or even the filthiest of its provisions) or would they continue to support it as they get more donations from the backers of DMCA?

There isn't a dime's worth of difference between the two faces of the one-party dictatorship of USA.

George Carlin on Freedom of Choice

http://www.youtube.com/watch?v=yt49DsfKDMc

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

The DMCA safe harbor provisions are a net good. Without them, YouTube could not exist because they'd be held liable for content on their site that infringes copyrights. The takedown and challenge process could be better, but calling for politicians to "get rid of DMCA" is bad for the internet.

Safe harbor is definitely good but it doesn't have to be exactly the way it is currently. I read that current YT (or the host) must wait for at least 10 days before adding the flagged content back. That sounds like BS, why must a legitimate content be kept offline for 10 days?

I wouldn't accept Romney's ad was fair use, as he has something very big to gain from it. The same way he invested money in the making of the advertisement, he should also pay the royalties for the song composition.

I hate all these stupid copyright laws, but if we must have it, then we must ALL have to comply with it.

Fair use is a three part test. Your understanding of the law is... limited.

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