Blog Category: Copyright

Author's Name: Robert Nelson Vance
Author's Email: Email Contact Form
Author's Website: http://robertnelsonvance.com

According to copyright laws,
I could even get in trouble
for posting this thumbnail
screenshot of Facebook's website.

The Digital Millennium Copyright Act (DMCA) is a United States copyright law which implements two 1996 WIPO treaties. It criminalizes production and dissemination of technology, devices, or services that are used to circumvent measures that control access to copyrighted works (commonly known as DRM) and criminalizes the act of circumventing an access control, even when there is no infringement of copyright itself. It also heightens the penalties for copyright infringement on the Internet. Passed on October 12, 1998 by a unanimous vote in the United States Senate and signed into law by President Bill Clinton on October 28, 1998, the DMCA amended title 17 of the U.S. Code to extend the reach of copyright, while limiting the liability of Online Providers from copyright infringement by their users.

Now I am not pretending to be a legal expert, or a scholar on this topic, but as a graduate in telecommunications from the Ohio University and as a former broadcast engineer at WOUB, I am pretty aware of the boundaries of DMCA and other copyright laws. I had to complete a number of courses that covered, in great detail in most cases, specifically, copyright infringement and protection.

That said, this morning I received the following email from Facebook:

Hello,

We have removed your video entitled "Olympus Evolt E-410 pt1/2" uploaded at 12:08pm January 29th, 2008. We did this because we learned that your video might include copyrighted material owned by a third party, such as a video clip or background audio.

If you are the copyright owner, or have permission from the rights holder to upload and distribute this material on Facebook, you may file a counter notice of alleged infringement by following the link below.

Please note that if you re-upload this video without filing a counter notice, or if you upload another video that infringes on the rights of a third party, our system will again remove the content. This could cause your access to the Facebook Video application to be disabled, or your Facebook account to be disabled.

To file a counter notice:
File a Counter Notification

For Facebook's video rem! oval policy:
View the Policy

The Facebook Team
copyright@facebook.com

Now, I can understand Facebook's need to protect their assets by making sure that they aren't "allowing" their user base to post copyrighted material, but, at least follow the letter of the law. Facebook is following what's referred to as DMCA Safe Harbor Provisions to protect themselves against their users copyright infringement. They often unnecessarily remove users content in an effort to demonstrate that they "do not support copyright infringement". However, their selection for removal is arbitrary at best.

The backstory: I posted a video on Facebook using their video application. As a matter of fact, I've posted a number of videos. The video that was removed was a video where a friend simply filmed me purchasing my Olympus E-410 Evolt online. In the background was playing a song from Bon Jovi, called Dead or Alive (Here's a You Tube Search for Bon Jovi - Dead or Alive).

The reason for objection of the removal of my video isn't because I disagree with copyright protection or copyright laws in general, it's because of the inconsistent and arbitrary enforcement of copyright by organizations such as Facebook. You Tube for example, is the other extreme; they're, in my opinion, too loose in their enforcement of such laws and protections. In my opinion, it is Facebook's (and other like service providers) responsibility to also protect the rights of their user base.

In the case of my video, that used the song "Dead or Alive", it was covered under what's referred to as "Fair Use". Fair Use is a doctrine in United States copyright law that allows limited use of copyrighted material without requiring permission from the rights holders, such as use for scholarship or review. It provides for the legal, non-licensed citation or incorporation of copyrighted material in another author's work under a four-factor balancing test.

Fair Use states that my alleged copyright infringement must meet the following criteria to be considered as covered by Fair Use:

• the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
• the nature of the copyrighted work;
• the amount and substantially of the portion used in relation to the copyrighted work as a whole; and
• the effect of the use upon the potential market for or value of the copyrighted work.

Let's analyze this for a minute. 1) my use is not for commercial use, 2) this was a creative work, 3) I used the song in its entirety, but through 90% (or even more) of the video, I was speaking over the song and furthermore, the song wasn't good quality because it was playing in the background off my computer from iTunes (it would have been as if I had recorded the video in my car and the radio was on, or in a restaurant and they had music playing in the background), and lastly 4) my use of this song was not going to "have significantly harmed the copyright owner's market", it was in my Facebook profile and shared only with my Facebook friends (my profile is completely unavailable to individuals who I hadn't befriended, I only have a handful of Facebook "friends").

I understand that copyright is a touchy issue these days given the accessibility of methods for sharing digital files over the internet. I understand that protection of the copyright holder and protection of the "infringer" falls into a shady area that usually airs on side of protecting the original author. I completely get the fact that I, as an end user, have little defense when being accused of copy right infringement. I know that service providers such as Facebook need to protect themselves from lawsuits because of something their user base did. I get all of this!

I guess my point is simply that Facebook has reached a new low. What's next, are they going to start screening every video that users post and remove posts that contain any bit of "copyrighted" material completely disregarding any user rights. What about the videos in the car while the radio's playing? The video a middle school girl took with her phone of her friend in Abercrombie and Fitch that has the Abercrombie company logo in the background? How about a video you film of your nephew riding the "It's a Small World" ride at Disney and the annoying tune we all know is playing in the background? Where does it end?

I am not going to become an activist or anything, but I sure can't wait for the day that this all simply goes away. Where it becomes too much work for publishers to sue everyone in the world because there are just too many people to sue. Or when service providers such as Facebook simply don't monitor content anymore because there's just too much content on their servers. When copyright simply becomes a mute issue because it's an old concept that doesn't really fit into our new aged technological world.

This is why I am a fan of open source projects, new and independent musicians, etc. These individuals are just happy that people are using their product or listening to their music or are just interested at all. They are happy with people downloading their software freely and distributing it to all their friends. They are happy people listen to their music and pay to come to their concerts, and buy their merchandise, etc. I'll just be really happy when this all just goes away; maybe not in my lifetime.