Cheated by the DMCA

Social media, user generated content, folksonomies, Web 2.0. Geeks usually view these emerging phenomena in a glowing light – as ways for individuals and groups to co-operatively contribute to the generation of technology, culture and information. To cynics such buzzwords define methods for private companies and corporations to build products and databases without needing to pay for the work involved. Either way, social media has become ubiquitous online, with topic specific social networks connecting the audiences of most major websites, while user generated content (from Facebook posts, to Google Maps mashups) add value for users and content owners alike. This year sees user generated content spill over into interactive entertainment in a big way, with games like Will Wright’s ‘Spore‘, and Media Molecule’s ‘Little Big Planet‘ gaining appeal through thousands of user made creatures and levels; content produced for free by people contributing their creative energies and time.

The downside of user generated content is that creators, coders, artists, and authors – the ones producing the content – are engaging in a one sided relationship. Their work, once contributed, can become wholly owned and controlled by the company they provide it to. If the creative work becomes part of a larger whole then this non reciprocal relationship means that while the website, book, or games they’ve added to can freely use their contributions, the opposite is not true.

My friends and I experienced the flip side of social media this week. Two years ago we entered a contest to be part of a video by the punk group ‘Yeah Yeah Yeahs’. The collaboration asked fans to dress up like the band and film themselves dancing around to the song ‘Cheated Hearts’, a track from the Yeah Yeah Yeah’s second LP ‘Show Your Bones’.

contest

It wasn’t an original idea, the Welsh indie group Feeder had done pretty much the same thing almost five years before, with their fantastic video ‘Just a Day“; but we liked the band, we liked the song, and it looked like fun.

instruct

My friends and I duly spent an evening getting dressed up in ludicrous costumes and makeup, and filming ourselves in various states of confusion. Afterwards, we ripped our tapes to computer and sent the originals, along with a release providing the band and their representatives with ownership of “all worldwide rights in the material submitted”. This rather lunatic agreement is pretty standard as far as user generated content goes, and though we didn’t like it, it was required to contribute.

A few months later we received a notice from the band, to the effect that our performance was to be included in the final video, and that we would receive a prize for our contribution. Shortly afterwards the band sent us a token bunch of signed pictures, stickers, patches and the like.

yyystickers

Finally the Cheated Hearts video was released. Rather than being exclusively fan made, it intermixed contributions from fans and a second official band video.

Despite being flattered (and embarrassed!) at be flashed across MTV around the world, we were a little disappointed that our contribution (it’s at the 3.04 mark) was a just 3 seconds long. So we took our footage, synced it to the song and uploaded our own fan edit video, as did a variety of other folks [1], [2], [3], [4], [5]. It was something to email our friends about, a bit of humiliating fun to play at parties. Our finished video was no great shakes, but we liked it, as did just under seven thousand other folks on Youtube. However, I can’t show it to you, because apparently someone at Universal didn’t. Here it isn’t..

The video has been removed from Youtube, removed from Youtube listings and cannot be accessed from the site. Last Sunday (October 19th), I received notice from Youtube that one of those dreaded Digital Millenium Copyright Act (DMCA) ‘takedown notice‘ had been sent to them – they don’t tell you from whom – claiming ownership of the song included in the video.

dcma

All such DMCA copyright notices require is for someone to claim ownership of a video, or of audio or visual elements which appear in a video. There is no defence for ‘fair use‘, for parody or educational purposes. All someone who wants a video – any video – removed from Youtube has to do, is to fill in this form on the Youtube site and email it off. The video will be instantly removed. The individual, group or company claiming ‘infringement’ doesn’t have to demonstrate ownership.

Like I said, they don’t tell you who sent the notice, but it’s not hard to guess. The Yeah Yeah Yeahs are signed to Interscope Records, a label owned by the Universal Music Group. According to the (user generated!) encyclopaedia Wikipedia, UMG includes the largest music publishing company in the world, Universal Music Publishing Group, and is one of the ‘Big 4’ record labels controlling much of the music industry.

Legally, what with the release we signed and the screwy DMCA, I figured we didn’t have a leg to stand on. But I sent an email to the Electronic Frontier Foundation anyway. The EFF are an organisation who monitor emerging internet and copyright law, and attempt to redress the misuse of copyright legislation. I asked them if making a so called ‘DMCA Counterclaim‘ (the only way to fight a DMCA take down notice), from outside the US would make me personally liable to legal action. The EFF were kind enough to get back to me this morning.

eff

So where does this leave us? We could re-upload the video to Youtube or another streaming service, potentially leaving us (well, me) exposed to legal action under the DMCA or it’s European equivalent. I’m no lawyer, so I’ve no idea what the potential penalties are in this area. If I’m quick (you only get 14 days, and five have already passed), I could submit a DMCA counterclaim, which as Eva points out above, could theoretically expose me to conviction for perjury in a San Francisco court, and to a lawsuit for damages (sic) from Universal Music. I could on the other hand use Youtube’s internal tools, which became available as a link from my account’s ‘my videos’ page, once the DMCA claim was received. These provide a variety of unhelpful options – I can permanently mute the audio element of the video, replace the audio with content licensed by Youtube (the Yeah Yeah Yeah’s aren’t an option, and even if they were, the audio wouldn’t be correctly synced), or dispute the claim – which again could result in the deletion of my account, if the ‘copyright owner’ upholds their claim, which seems likely. Or I could write this blog post, publicise the issue and perhaps in an ideal world where clouds are made of candy and butterflies whistle sweet music on Summer afternoons, get this unfair claim withdrawn.

My friends and I don’t blame the band. We doubt very much that they, or indeed anyone from their immediate label, contacted Youtube after being shocked and appalled by our ‘misuse’ of their copyright. Likely an automated piece of software, somewhere in the bowels of a Universal subsidiary, scanned the video’s audio track, and spat out a legal notice. What bothers us are a) the unfairness of the situation – the idea that we can’t share something we created because an element of it is ‘owned’ by a megacorporation, and b) the precedent that cases like this set. All creative work (important and monumental, or just plain silly and fun) is built upon the groundwork of existing culture – whether it be the brothers Grim appropriating European mythology, or Led Zeppelin integrating blues riffs into rock and roll music. As the range of instruments we use become virtualised – from the game engines used in Machinima, to level design tools like those of Little Big Planet – they fall under the ownership of vast faceless corporations, and the legal purview of laws written and paid for my US media conglomerates. This can leave creators, remixers and contributors powerless in the face of legal sanctions. My friends and I helped (in however small a way) to create something, which was then used as a promotional tool. It’s only fair that we get to remix and share our efforts in return.

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7 thoughts on “Cheated by the DMCA

  1. Sadness. Not that this necessarily applies in your case, but are there any negative consequences for the original claimant if their DMCA request gets overruled?

  2. Generally people have a very limited understanding of ownership and intellectual property rights in the digital age. Of course this is being completely taken advantage of and the yeah yeah yeah’s thing is just one example of user generated content being hijacked opportunistically. Well done on this post Gareth. There needs to be more debate and awareness around this murky issue so people understand the level of control and ownership they have over their own creative output.

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