Buffy vs. Edward Remix Unfairly Removed by Lionsgate
rebelliouspixels.com
rebelliouspixels.com
"Buffy vs Edward remix was mentioned by name in the official recommendations by the US Copyright Office (pdf) on exemptions to the DMCA as an example of a transformative noncommercial video work."So artists are supposed to create works employing fair use, and then hope they'll get a recommendation by the Copyright Office? If yes, they can publish their work, if no, they'll have to trash it?
ADDED. Version without the pop-ups: http://www.rebelliouspixels.com/downloads/Buffy_vs_Edward_36...
Amen. I find it hard to get upset about the takedown notice when I want to take it down for melting my eyes. Perhaps this is unfair of me, but there it is. Thanks for the clutter-free link.
The role of YouTube in this dispute has been simply to provide a platform for the parties to work it out. YouTube is not the organization that is denying the fair use claim, Lionsgate is.
The most likely reason would be because otherwise, the claimer's lobby groups could put pressure on youtube to do more than it currently does (say, they can no longer claim safe habour under DMCA). The claimee are the little guys, and they while large in numbgers, have little to no power in affecting youtube's policy.
So its all down to money and economics. Therefore, a reasonable way to force youtube's hand is to make a big deal out of it, get as many people involved so that youtube feels more threatened by the actions of these small time remixers.
It's not that they fail to acknowledge fair use, it's that they err on the side of being restrictive in every situation because the law tells them to do so. When a DMCA takedown is filed they need to respond by removing the purportedly offending content. It's not their responsibility to mediate or investigate the claim. The number of takedown notices submitted also make that impossible.
On the other hand, laws exist to prevent people from submitting takedown notices in bad faith. Lionsgate doesn't have a claim of copyright ownership, the author has copyright. The author uses materials that were authored in a production that Lionsgate now has rights to, but the new production is a new work that uses elements that it has legal right to use.
I think that the fact that they once claimed audiovisual copyright and then dropped that when the term expired and claimed a second time for visual copyright is evidence that they are abusing the automated controls of youtube and acting in bad faith. If they weren't, they would have been justified in delivering a legal copyright notification to have the video taken down when the first appeal was filed.
Instead they dropped the claim and issued another, slightly different claim to abuse the mandated automated system.
So either Google has to decide that, or they have to let others hash it out. Youtube doesn't prevent you from, for example, all banding together and suing Lionsgate in a class action.
You could also try personal suits for tortuous interference with contractual relationships (Lionsgate is deliberately interfering with your relationship with Youtube). It may be viable in some states (others, definitely not).
There are plenty of options here, youtube shouldn't be deciding this stuff any more than anyone else (for example github complies with DMCA requests, and counter-notifications, despite what they think of the actual situation).
Guy uploads item that is clear to anyone with a brain is fair use.
Studio X files DMCA to Google.
Google automatically disables the video
Guy fights to reinstate the video, gets approval, video is re approved.
(So far this is what happens now, according to this guy's account)
But at the point where the video is re approved Google should flag the video such that it was previously auto-disabled and found to be not infringing and thus redirect any future DMCAs on it to the manual review pile instead of the automatic pile.
This would curtail studios using the automatic takedown process to fuck with people while adding a fairly minimal amount of work to Google's pile since most of the items that are taken down through the automatic DMCA process won't get re-approved in the first place.
Sadly, even in that case, the future DMCA's are just as valid, and Google would likely be just as liable, even if they are doing it abusively.
Again, the abuse is something to get a judge to look at, not Google.
Without a declaratory judgement of non-infringement in hand, there is actually nothing to say it's non-infringing, all you've done is get someone to drop a DMCA claim.
Realistically these laws are hard if not impossible to enforce. There's absolutely nothing stopping someone from filing a fake DMCA under a fake name and getting absolutely no retribution for their actions. Ask any up and coming YouTube content creator and they'll probably tell you they've been hit with fake DMCAs in the past, which immediately results in the user's video getting pulled.
After that point, the damage is done. Even if it comes back later, especially if the content is time sensitive, the troll won.
Considering that you have to prove actual bad faith (rather than just negligence) and have to have someone's actual identity to initiate a DMCA countersuit, the protection offered in the internet age is laughable.
It's a bit of a side track, but: Any commentary on a work could reasonably be expected to feature that work substantially, couldn't it?
Now I am in favor of fairly wide latitude for this sort of reuse, which is a big reason I favor much, much shorter copyright terms, and graduated copyright at that (eg exclusive for 20 years, mandatory cheap licensing for the next 30, PD after that - for example). But it's hard to ignore the rightsholder's concern that this work is less about commentary than simply hitching a ride on a currently-popular franchise. It's not cashing in, since the person isn't trying to monetize it directly, but the person is trying to build their creative reputation from rearrangement of others' work, while denying any and all revenue to the original creator.
As someone who has spent the last decade making films from scratch rather than remixing others' work, I think this is pretty weak sauce, just as I think that DJing falls far short of musicianship. I engage in both activities, but when I'm DJing I don't consider that to be creatively equivalent to composing something original. People who say all creativity is fungible are lying to themselves.
Rifftrax is additive, not transformitive
The person designated by the federal government to recommend who is exempt from DMCA restrictions recommended this work by name as an example of a work that would be hurt by not having exemptions to Decryption prohibitions. They considered it a valuable documentary.
>“Based on the video evidence presented, the Register is able to conclude that diminished quality likely would impair the criticism and comment contained in noncommercial videos. For example, the Register is able to perceive that Buffy vs Edward and other noncommercial videos would suffer significantly because of blurring and the loss of detail in characters’ expression and sense of depth.” -Recommendation of the Register of Copyrights, October 2012 (Page 133) Maria Pellante
Why do you think this? A good remix requires just as much ingenuity, just as much creative juices, as an original work. In fact, a remix might require even more ingenuity, because of the constraints of the remix. Of course, there are people who claim to be remixing, but is just putting things thoughtly side by side. But then again, you have original works that are also rubbish.
To me, the eye of the law should treat remix and originals exactly the same - works in their own right. A remix may have derivative works from else where, but as long as it is fair use to a reasonable person, it should be considered as an original.
1. The entire pre-DMCA-takedown process (the first round of complaint and appeal) is not required by law. I think it's a good idea in general (it's nice to have a low-stakes option before you launch into the DMCA process) but the immediate presumption that the complainant is in the right is offensive. Something like "we will start displaying ads if you do not dispute within 24 hours" would sit a lot better.
2. Once the DMCA process has started, the poster was required to go through Youtube's "copyright school", and was limited to posting only short videos. I wish they would wait until one or the other party lost the dispute before doling out punishment and education.
Youtube is within its rights to behave this way, but it's Youtube's choice, not something required by law.
And then, after your content has been down for a week and a half and finally goes back up, any new set of jerks (or as we saw here, maybe even just the same old jerks) can come along and file another takedown against the same content and it goes back down for another ten days or more.
I would say that it's amazing it doesn't see more abuse, except that it does. SEO companies and similar such scumbags regularly file fraudulent takedowns against their competitors. As far as I can discern, the process Hollywood employs to decide what to issue a takedown for comprises some combination of untrained monkeys and a random number generator. Wendy Seltzer wrote a paper detailing a whole slew of other such issues a couple years ago[1] but still nothing has been done to address it.
[1] http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1577785
In reality this is how the legal system works for almost everything else: First you ask nicely, and if the parties can't agree then you go to court. But in most cases the party in the wrong (at least in theory) knows that they'll lose in court and so concedes immediately and everything works as it ought to without taxing the court system.
Please see http://news.ycombinator.com/item?id=5033525 above.
This is the one-sided system that the free market got us, where Google facilitates the removal of legal material. If you are lucky, you can get to the point where you follow the DMCA's rules.
[1] http://arstechnica.com/tech-policy/2012/10/youtube-finally-o...
Which is exactly the point. The purpose of copyright is not censorship. That's why parody and criticism are the core of fair use.
I think the fair use factor that talks about the effect on the market for the work is kind of confusing if you don't have the context of the associated court decisions: It refers to whether the allegedly infringing work competes with the original, not whether it makes everyone stop buying the original through effective criticism.
For a period the video was up, but with advertisement revenue going to Lionsgate. They were getting revenue from something that was largely someone else's copyright. In spirit, if they think they should be getting money, then Buffy's copyright holders should too.
Of course, neither should automatically be getting revenue, fair use and all.
that's not true - the author of the work should get revenue should they decide to (but only if they decide to). Lionsgate is not the author of the work. Some components of the work are from the copyrighted works owned by lionsgate, but that is due to fair use, and thus lionsgate has no claim on the copyright of the remix containing some of their stuff.
Fair use does not mean no revenue (nor does revenue even come into the argument!).
>But sure enough when I checked my channel, Lionsgate was monetizing my noncommercial fair use remix with ads for Nordstrom fall fashions which popped up over top of my gender critique of pop culture vampires.
The rebelliouspixels version, with its extensive on-screen critique is fair-use since it appears to be a critique. But if the original YouTube version lacked that, then the video devolves into little more than a fanfic video by a Buffy-loving Twilight-hater.
Even the rebelliouspixels version appears to contain far more "quoting" of the original material than is needed for its critique.
It's definitely fair use.
My comment isn't meant to be snarky; it's meant to point out the /ultimate/ absurdity of our copyright system - that you literally /cannot determine/ if something is or is not fair use without a judgment. As in a judge.
So while you make important points about the presence or absence of commentary, the fact that the video was transformed /at all/ means that it's no longer a determinable question.
From: http://fairuse.stanford.edu/Copyright_and_Fair_Use_Overview/...
"What Is Fair Use?
In its most general sense, a fair use is any copying of copyrighted material done for a limited and “transformative” purpose, such as to comment upon, criticize, or parody a copyrighted work. Such uses can be done without permission from the copyright owner....
Most fair use analysis falls into two categories: (1) commentary and criticism, or (2) parody....
A parody is a work that ridicules another, usually well-known work, by imitating it in a comic way. Judges understand that, by its nature, parody demands some taking from the original work being parodied. Unlike other forms of fair use, a fairly extensive use of the original work is permitted in a parody in order to “conjure up” the original. "
If you don't know what "fair use" is, you probably shouldn't be opining on this.
Alright, so how do we fix it? How can content producers protect themselves from legitimate copyright infringement on services such as YouTube that allow unverified uploads on a massive scale?
That framing of the question is inherently biased. It assumes that if no good solution can be found, some bad solution that solves that problem is the only alternative, regardless of whether it creates even more serious problems for other people.
It also assumes that the "problem" is sufficiently major to justify the implied "whatever it takes" approach to solving it. Notwithstanding that substantially all of Hollywood's collected works are available on The Pirate Bay and in a thousand other places, the studios continue to make record profits. While an elegant solution to the problem you mention would be convenient, the decidedly inelegant approaches currently on the books or theorized by pundits are not inherently superior to the default alternative of doing nothing at all just because "something must be done" is a popular piece of political rhetoric.
People who know how to make money of the content production without government issued monopoly on copying will step in to fill the gap (if there'll actually be any gap).
On a side note, he did post his video here with popups that are basically an "American Pie" like parody of popups in films... except that I think the popups are supposed to be serious. They make watching the remix utterly impossible though. http://www.rebelliouspixels.com/popupvideo/
go back to reddit, please.