FOX Case 1
Copyright infringement (DMCA) notices from
September 2006 I started posting some teaching and research materials
on YouTube whose legal department removed three of my clips because of
copyright infringement notices (DMCA complaints)
they had received from two big corporations: Twentieth-Century Fox (hereinafter
Fox) and ITV (Independent Television, UK independent
in the sense of dependent on production eliciting maximum revenue from
The three offending
clips subjected to the YouTube
take-down were these.
They have since been re-instated.
mid October 2007, Fox sent a DMCA complaint to YouTube about my clip Austria,
Shampoo and Gestural Conversion. YouTube removed the clip. One
month later YouTube removed The
Emmerdale Commutations (both the long and short versions) because
they received another copyright infringement notice, this time from ITV
(Independent TV in the UK). I had to put the clips on my own
site instead, rewrite the links and inform students and colleagues of
the changes. But that extra work isnt what riled me most.
take-downs really pissed me off because the clips are integral to the
explanation of analysis method when I teach both Popular Music Analysis
and Music and the Moving Image. Obviously, if I can't show examples of
what I analyse I can't illustrate the method! If students are ill or otherwise
unable to come to class, they won't be able to learn about these analysis
methods. They need to catch up by going on line. Moreover, industrious
students who want to look more closely at analysis method can't do so
unless I produce several copies of illegal DVDs containing the same material.
It is obviously easier for all and much more legally transparent if I
put the material on line. That way the knowledge is also available to
anyone interested in analysing music in the mass media, not just to my
reinstate the clips on line, YouTube informed be by email that in both
instances I could send in a counter-notification (a.k.a. counter-claim
or counter-notice). Here, first, are the relevant bits of the automatically
generated email from YouTube. If you ever receive one of these, read on
after it so you know what to do...
NOTE THAT THE COUNTERCLAIM PROCEDURE HAS CHANGED (Nov. 2008). SEE FOX
TAKE-DOWN CASE 2 FOR MORE
OR SKIP TO THE NEXT SECTION.
YouTube - Video Removed: Copyright Infringement
is to notify you that we have removed or disabled access to the
following material as a result of a third-party notification by
[name of big-bully corporation] claiming that this material is infringing:
Farm : http://www.youtube.com/watch?v=sBty2mcgRNI
you elect to send us a counter notice, please go to our Help
Center to access the instructions.
Be aware that there
may be adverse legal consequences in your country if you make a false
or bad faith allegation of copyright infringement by using this process.
[End of email from YouTube. Broadcast Yourself]
had trouble in formulating a counter-claim following YouTubes Help
Center instructions: they just wouldn't accept it and didnt explain
what was wrong. Thats why I contacted the Electronic
Frontier Foundation (EFF, highly recommended) for advice on how to
proceed. EFF pointed me to successful counter-claims of which I chose
one. You will find the basic text of my counter-claim here.
You should, however, read the whole of section 2 first.
filing a counter-claim you have to check that the law is on your side,
otherwise you might land yourself in a lot of trouble. So, ensure first
that your clip meets most, preferably all, of the following five criteria
of Fair Use or Scholarly Use. Why do you need
to do that?
Google and YouTube are registered in the US state of California. That
means that if your use of copyrighted material on YouTube were ever to
become an object of litigation extremely unlikely, the case
would be judged according to US law in the state of California. Your counter-claim
must therefore be formulated with that legislation in mind. The question
is: what aspects of US copyright legislation support you?
of the five points in US federal law that support fair and scholarly use
of copyrighted material are codified under Section 107 of Title 17 of
the US Code. The fifth point is established by legal precedent. You can
check the validity of your counter-claim against these five points in
the form of five questions.
What is the nature and character of use of the citation
you make of the other work?
Is YOUR clip scholarly and used for non-profit,
Answering YES is essential.
Is your work creative or factual, informative
As an ambitious edutainer, I think these are very dubious pairs of conceptual
The more you can prove your clip is factual rather than
creative, informative rather than entertaining (whatever
those adjectives may mean), the better.
much of the work is taken?
The less you take from the quoted work in both absolute (seconds/minutes)
and proportional terms
(% of its total duration), the better. The less of your
work citing the quoted work (in both absolute and proportional terms),
your work deprive the plaintiff of any revenue from the copyrighted
work you quote?
Most probably not. Its much more likely your work advertises
the quoted work
(see also Production tips).
your work transformative? Does your clip just repackage the quoted
work or is your clip fundamentally different from the original
The more transformative and different your
YouTube clip, the better!
tested one of my offending YouTube clips against these five points. The
details of that test are here. Other self-protection
tips are offered here.
you're sure your clip does well according to the five points just listed,
then you should file a counter-claim. If you are a U.S. resident you can
use the Counter-Claim
generator at chillingeffects.org. There are also several templates
online. I used one written
by The Directory of Schools in Santa Rosa (California). That resulted
the following text which works if you live, like most humans, outside
the USA. If you want, you can just copy the text from the box, below,
then change the variable details to suit your own case.
you no longer need to formulate a counter-claim letter. You just fill
in an online form provided by YouTube. Skip to next section.
of more recent take-down dispute.
of counter-claim 2007-11-21, acknowledged by YouTube, 2007-11-22]
1000 Cherry Ave. Second Floor
San Bruno, CA 94066
via: Email attachment (or whatever)
Re: Mistaken Removal
find attached (Appendix 1) details of one/two clip[s] clips removed
by you pursuant to 17 U.S.C. Section 512. I have a good faith belief
that this material was removed or disabled in error as a result
of mistake or misidentification of the material. I declare that
this is true and accurate under penalty of perjury under the laws
of the United States of America.
the purposes of this matter, I consent to the jurisdiction of Federal
District Court for the judicial district of San Francisco County,
California, and will accept service or process from the person who
provided notification under subsection (c)(1)(C) or an agent of
such person. However, by this letter, I do not waive any other rights,
including the ability to pursue an action for the removal or disabling
of access to this material, if wrongful.
complied with the requirements of Section 512(g)(3), I remind you
that you must now replace the blocked or removed material and cease
disabling access to it within fourteen business days of your receipt
of this notice. Please notify me when this has been done.
appreciate your prompt attention to this matter. If you have any
questions about this notice, please do not hesitate to contact me.
of clip[s] removed from YouTube
of clip removed: http://uk.youtube.com/watch?v=..... [whatever]
of clip removed: [Name of clip removed]
duration of clip removed: 03:22 (or whatever)
layout for other clip[s]
username: [your YouTube username]
name: [your real name]
[your snail mail address]
[your email address]
[your phone number with
nation prefix, e.g. +1 514 123-4567 (Montréal), +44 151
1234567 (Liverpool, UK), etc.]
counter-claim was acknowledged by YouTube who replied by email:
|Thank you for your
counter-notification. It has been forwarded to the party that sent
the takedown notification. If we receive no response, your material
will be restored between 10 and 14 days from today.
weeks after filing my various counter-claims, I received notice from YouTube
that the clips had been re-instated. A few days after receiving that notice,
the videos were once again operational.
to the Electronic Frontier Foundation (EFF),
once a clip is reinstated after a counter-claim it is virtually never
the object of legal action. If it is and if your counter-claim is good
(the 5 points again), you have nothing to
fear: I get the impression that EFF lawyers can't wait to get their hands
on clear cases of abuse by the big-buck copyright owners. That said, if
youre obviously pirating or indulging in undue file sharing, EFF
won't be interested. If your case is good according to the 5
points and if, against all odds, your case went to court, you wouldn't
have to go to San Francisco (flowers or no flowers in your hair) because
(if your case IS good!), you could be represented by an EFF lawyer.
production tips for your YouTube clip
tips are for those with legitimate reasons for
filing a counter-claim.
Include a fair-use and/or scholarly-use statement near the start of your
clip. Its like getting your own back for all the threatening legal
messages preceding the films you watch on DVD! Cut and paste, if you like,
from the text box below and adapt to your own needs, or just download
this JPG image (655 x 480 pixels
at 72 d.p.i., white on rust red) if the text applies to your YouTube clip.
FAIR USE STATEMENT
This clip is used in research and
(history/analysis of music in the mass media).
No citation here of work by others
constitutes any infringement of the
Digital Millennium Copyright Act.
This clip conforms to all criteria determining
the fair and/or scholarly use of citation
according to U.S. Federal Law
(Sections 107-118 of the Copyright Act;
title 17, U.S. Code).
It may also help to include, somewhere near the start of your clip, some
more scholarly details, for example:
method illustration for Music and Moving Image Students,
University of Dead Man's Gulch (MUF101) or
Commented source materials for PhD The Semiotics of Reverb
and Delay in Slasher Movies
Joe Bloggs, Faculty of Trash, University of Dead Mans Gulch.
your end credits, you may want to include one or more of the following:
As many details as possible giving the copyright credits of works you
Footage used: The
Sound of Music 20th Century Fox, dir. Robert Wise, 1965,
[extracts from DVD chapters] "Austrian Hills"(Prelude) [and]
"The Sound of Music" (Prelude).
DVD NTSC1 2004509 [0-24542-04509-0] (nd) renewed 1993.
Also on PAL VHS Foxvideo 1051 (1993).
Providing such details proves that you have at least had access
to a legally bought copy of the film,
more likely that you have paid for that legal copy yourself. It
also credits the copyright holders and
allows motivated viewers to more easily acquire a legal copy of
A blanket statement of this sort:
No profit is derived from the production or availability of this
clip on line.
Personally I also tend to add No animals were harmed
during the making of this film, nor was the bank
account of a single copyright holder I can think of.
On your YouTube My_Videos page, click the <Edit
Video Info> tab beside the relevant clip and include some scholarly-use
concepts in your description and/or among the keywords research,
analysis, teaching, method, theory, etc.
5. Get support from your supervisor, department, faculty, university,
etc. This can be difficult, though (see Submissiveness under
Dont let them scare you).
5. Testing the 5 points (notes
of clip removed: http://uk.youtube.com/watch?v=BKm1EhgV9no (since re-instated)
of clip removed: Austria, Shampoo and Gestural Interconversion
duration of clip removed: 03:22
for profit because the clip is part of teaching and research materials.
The clip cannot be bought! Neither I nor anyone else derive any profit
whatsoever from including the offending quotation in the clip nor from
the availability of the clip online. I
cannot charge my students or anyone else for accessing the clip: it
must be freely available to my students. Its scholarly use is
easily deduced by examining links to the clip from written materials
(course documents, learned articles, PowerPoint presentations, etc.)
on my site. The clip provides essential audiovisual demonstration of
theory and method developed in conjunction with my teaching and research
in the semiotic analysis of music. The offending clip relates directly
to one learned book (Ten Little Title Tunes, Mass Media Music
Scholars' Press, 2003, pp. 231-267) and to one scholarly article ("Gestural
interconversion and connotative precision" in Film International
#13/2005, p. 1, ff., also online at www.tagg.org/articles/xpdfs/filminternat0412.pdf)
or creative, informative or entertaining? More difficult to argue since
there need be no inherent contradiction between the supposed poles of
these either/or pairs, as is evident from the notion of edutainment.
The clip is certainly factual and informative in that it illustrates
the concept of gestural interconversion in music even though (I hope!)
the information is presented in an entertaining manner. I am unable
to judge how creative the clip should be considered and
am very curious to know the legal definition of that adjective.
much of the work is taken?
Citations of C20 Fox copyright material used in clip:  Visual extracts
only from The Sound of Music. Montage of re-arranged and verbally
commented material ( Fox) set to music NOT from The Sound of Music
(00:41 - 00:59 and 01:06 - 01:17, i.e. 29 seconds).  Visual and
musical extracts from The Sound of Music, mixed with the primary
analysis object (The Dream of Olwen), verbally commented and
visually re-arranged (01:18 - 02:08 or 50 seconds). 29 + 50 seconds
from a full-length film is a tiny proportion of the quoted work. Extracts
from the copyrighted work occupy 01:19 (27%) of the clip's total duration
(3:32). The clip is in its turn no more than an audiovisual ilustration
of ideas set out in the scholarly texts mentioned in 1, above.
the copyrighted material in the clip in no way adversely affects the
ability of the copyright holder to derive income from sale or rental
of the relevant videogram. On the contrary, the clip's viewer's are
far more likely to be encouraged than discouraged from renting or buying
the Fox DVD of The Sound of Music. Nor are moral rights infringed
since the clip contains no parody of nor defamatory comments about the
copyrighted material cited.
clip is definitely transformative in relation to the copyrighted material.
It is not only repackaged (re-arranged, commented, edited differently,
etc.); it also serves an entirely different purpose. Instructive textual
comments appear on screen, different music is used, extracts from other
visual sources are included to illustrate the methodological points.
It is a small part of educational materials that illustrate semiotic
analysis method (gestural interconversion) in music. It is not
(part of) a film(ed) musical. It is not the video clip of any
particular song or piece of music. It is not an entertainment
product. It does not "tell a story" (all cardinal aspects of
the Sound of Music DVD).
let them scare you
you receive a DMCA copyright infringement notice from YouTube, don't let
the big bullies put you down if you have a good case (the
five points again). Why not?
They've got much bigger fish to fry than you (e.g. DVD mega-pirates
in Taiwan). The big boys have a much better chance of winning in court
against real pirates and much better prospects of securing substantial
compensation than if they pursue us academics who have very limited
personal funds (if any).
bad publicity for the big guys to be seen persecuting us little guys.
bad publicity for the big guys to be seen to be against the legitimate
goals of education and research.
If your counter-claim is valid, the likelihood of legal action is virtually
zero. Do not be browbeaten into submission.
federal law is on our side if we legitimately quote copyrighted
stuff according to the five points listed
under Filing a counter-claim (above).
and ignorance are two major obstacles to the democratic spread
of knowledge about messages, musical or otherwise, circulating in the
mass media. University legal advisors, department heads and librarians
seem often unaware of the simple fair-use and scholarly-use aspects of
U.S. federal law under which cases like mine would be judged. You may
have to educate these authorities yourself.
legal scaremongering (a personal opinion) is in my view a campaign
bullying those of us who have a legitimate case for quoting copyrighted
audiovisual work. The incessant references on DVDs to Interpol (Stockholm,
1977) and to $250,000 fines work like carpet bombing: the collateral damage
is vast, the number of innocent civilians killed or wounded huge (metaphorically,
of course). The file-sharing popular majority is already criminalised,
mainly because of the media industries own inertia and inability
to radically reform important questions of authorial remuneration in the
1990s. The roar of the dinosaur may be scary and theyre more likely
to roar when theyre threatened with extinction. Its symptomatic
of desparate rearguard actions. Their days are numbered and dinosaurs
have small brains.
front at least)
British Academy has produced a very strong anti-DMCA
document stating that current application of copyright legislation is
suffocating innovative research into the mass media.
Wikipedia articles on Copyright
and WIPO (World Intellectual Property Organisation) present some
Commons provides alternative means of registering intellectual
and artistic property.
Electronic Frontier Foundation (EFF) is extremely useful, offering
information and assistance to anyone with a valid case against the blunderbuss
tactics of big corporation legal departments.
are often targetted by the big boys. The
Legal Bloggers Guide can be a useful source of information
Effects are those the big bullies hope will make us run scared.
It is also the name of a very useful site (chillingeffects.org)
offering online rights information and advice.
Use in the U.S. Economy. This text documents the economic contribution
of industries relying on fair use to the U.S. economy (produced by the
Computer & Communications Industry Association (CCIA) in 2007). Just
one quote: Companies benefiting from fair use generate substantial
revenue, employ millions of workers, and, in 2006, represented one-sixth
of total U.S. GDP. Talk about rearguard action from
Fox and ITV!
Lessigs Free Culture.
A Remix Manifesto. Excellent series of short movies about these
I got another take-down notice from YouTube
I clicked open the email and read:
video Fernando Museme 2 has been identified by YouTubes
Content Identification Program as containing copyrighted content which
FOX claims is theirs. Your video is no longer available because FOX
has chosen to block it.
provided me with this information, too:
Who the hell do they think they are blocking the flow of knowledge about
music in the modern media? How can they treat me as guilty without presenting
the slightest shred of evidence to support a valid suspicion, let alone
a conviction? All the burden of proof is bundled on to me without anything
indicating any wrongdoing on my part. I also have to waste hours organising
alternative locations for the clips taken down and informing students
of those changes. Yes, there are real time-wasting consequences of this
inequitable kafkaesque process. It really pisses me off.
at least I no longer have to formulate my own counter-claim letter to
YouTube. Now, if I'm convinced my case is clear and theirs is not (the
five points still apply), I just fill in a
very dull form stating what was clear from the outset if only those with
the accusatory fingers had taken the trouble to view the clip and to check
on my background (professor of musicology, veteran of popular music studies,
etc.). No, Fox and YouTube have no obligations. I have them all.
within a couple of weeks I suddenly saw the clip back on my site, as follows:
Successful is a particularly nice touch, given that there was nothing
to dispute in the first place!
I do recommend
reading the sections Filing a counter-claim
(especially the five points), After the counter-claim,
Self-protection tips, Don't let
them scare you and Allies.
= Digital Millenium Copyright Act. It largely defends the copyright interests
of big corporations. It also allows big-buck companies like YouTube and
Google to pass the buck on to you, the user, if there are copyright complaints
about material you post on their servers.
Signatures. I get the impression that, if you send your counter-claim
by email attachement, its a good idea to insert a scanned signature
image (best if in blue rather than black), even better if you use a recognised
digital signature (e.g. Verisign, available if you own Adobe Acrobat [Exchange,
not just Reader]). I inserted both, just to be on the safe side. Of course
you can avoid these problems if you send your counter-notification by