Consider the following case, of Stephanie Lenz, who made a home video of her 13-month-old son dancing to Prince’s song “Let’s Go Crazy” and then posted the 29-second video on YouTube:
In August 2008 U.S. District Judge Jeremy Fogel of San Jose, California ruled that copyright holders cannot order a deletion of an online file without determining whether that posting reflected “fair use” of the copyrighted material. The case involved Stephanie Lenz, a writer and editor from Gallitzin, Pennsylvania, who made a home video of her 13-month-old son dancing to Prince’s song Let’s Go Crazy and posted the 29-second video on YouTube. Four months later, Universal Music, the owner of the copyright to the song, ordered YouTube to remove the video enforcing the Digital Millennium Copyright Act. Lenz notified YouTube immediately that her video was within the scope of fair use, and demanded that it be restored. YouTube complied after six weeks, not two weeks as required by the Digital Millennium Copyright Act. Lenz then sued Universal Music in California for her legal costs, claiming the music company had acted in bad faith by ordering removal of a video that represented fair-use of the song. Warner Music Group has followed suit, ignoring fair-use and deleting any video with music that they have rights over—no matter how big or small the audio clip is.
from Wikipedia entry on Fair Use.
Under Section 107 of the Copyright Act 1976, allowance is made for “fair use” for purposes such as criticism, comment, news reporting, teaching, scholarship, and research. Fair use is a use permitted by copyright statute that might otherwise be infringing. Non-profit, educational or personal use tips the balance in favour of fair use. There are variations from country to country, but in almost every case I have researched, allowances are made for “fair use” of copyrighted material. However, in practice, this hasn’t been the case whatsoever. Each time I post something from YouTube, I get this sensation that I’m pointing a big finger at somebody.
Since I’ve been posting at KUR I have noted a drastic increase in the draconian behavior of almost all copyright holders, especially the large corporate holders such as the ones mentioned earlier. As noted, they do not have a legal leg to stand on, but this doesn’t stop them from bullying YouTube to remove posts which are obviously “fair use”. Fighting these companies, is like punching an eclair (messy and pointless for most of us without the financial ability to sustain it). It’s my thought that besides that, we must stick together, and keep a eye on where our entertainment dollar is going. The way they take our money is a crying shame. It makes no difference if you are young or old. Common sense is our only hope. Snork, if you will, but they will get you if you are not looking. If it’s not one thing, it’s another. Learn to hate it every minute.
In this battle for fair use, who is scrutinizing the scrutinizer, the legion of corporate lawyers who spend their expensive hours hunting down fair use offenders until it hurts when they pee? Of course, it’s the aim of these corporations to “mess your mind up” and make us all “tow-the-line” while turning us all into little “cyborgs” with our smart phones “sticking out” of the sides of our heads.
Of course, they’ll just say they’re “doing work” for their client, “keeping it” in such a way as to insure their client’s legacy in the digital age. As usual, the robots at Rolling Stone couldn’t care less as long as these same corporations buy plenty of ad space
So, practice fair use, if you can, but best be sure not to offend the copyright holder and their high-priced lawyers because even the law being on your side is of no help as they “walk completely amok” over your rights. You are not alone. Sure, the radio may be broken, but your iPhone is working just fine.
Excuse me, but my own “kerosene” iPod is out of juice. I should go outside now and refill it before I have to cut the grass.
5 thoughts on “Fair Use versus Corporate Avarice — A Rant”
Wow, is this fz-lyrics-quoting-a-palooza or what? Cool post anyway, ug!
Your essay covers angles I haven’t seen any other media and it says things I really needed to hear lately (in a voice I’m glad to find). Saying “thanks” doesn’t begin to express my feeling but it’s what I have right now. So… thanks 🙂
Nice post. Trust the music industry to make the stupid and wrong decision at every turn.
I guess they’d rather pay radio stations under the table to play the music they own rather than let people like Stephanie promote it for free. It’s that kind of business acumen that brought the U.S. automotive industry to its knees.
In the case of Frank Zappa’s music, very few official videos were ever made by FZ. Why? I can only presuppose that FZ had an utter distaste for the format (perhaps that is why the few videos he did create mock the medium). That said, with the advent of YouTube, is it really so surprising that fans, themselves, fill in the void by creating their own fan made videos. Is this infringing on copyright? Hardly. The fan who creates the fan video has already purchased the audio product. The fan who views the fan made video, for the most part, already owns the audio product as well. So, what is the big problem? With each new medium, the copyright holder thinks they deserve to be paid. Do they, though? Isn’t this fair use? To let the copyright holder get away with this kind of “pay per view” is akin to the licensing of software, and the only outcome is the licensing of musical tracks.
Don’t believe me? Go on YouTube and try to find your favorite video from, say, ten or more years ago. Chances are you cannot. They’ve all been bought up by a handful of small entertainment companies who are waiting for YouTube (and other such sites) to go completely subscription. Where is the right of “fair use” in such a future? Is music really going to be your music anymore?
Fair use has always been a squishy doctrine, at best. Courts have been reluctant to apply it expansively. The archetypal fair use in the pre-digital age was the teacher making photocopies of a book chapter to hand out in class. A chapter or two was ok, but photocopying the entire book for class use obviously crossed the line. These sorts of fuzzy doctrines are great for lawyers’ bank accounts, but do little to give certainty to the law.
Aside from the legal issues, the music is just stupid to go after YouTube vids. A bunch of homemade vids featuring music snippets and a bunch of grainy, 30-year-old TV clips, none of which can be downloaded, are not what is imperiling the music biz. The music industry is doing everything to make me want it to die, ferchrissakes.
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