YouTube counter-claims (big media business versus Tagg, his students and against the right to teach the analysis of music in the modern media) HOW TO WIN! update 2008-01-01
On this page	Elsewhere
• Copyright infringement on YouTube • Clips removed « Infringement notice	Philip Tagg’s home page
• Filing counter-claims • 5 important points • Counter-claim example	Copyright versus the democratic right to know (2007; PowerPoint)
• What happens next?	Copyright versus the democratic right to know (2000; text)
• Self-protection production tips	Copyright matters on this site
• Testing the 5 points	Book publication solutions
• Don’t let them scare you
• Allies

1. Copyright infringement (DMCA) notices from

In 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 advertisers). The three offending clips subjected to the YouTube take-down were these.
They have since been re-instated.

Austria, Shampoo & Gestural Interconversion (3:22)

Emmerdale Commutations (unabridged version; 9:02)

Emmerdale Commutations (short version; 5:10)

In 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 isn’t what riled me most.

The 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 students.

To 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...

I had trouble in formulating a counter-claim following YouTube’s Help Center instructions: they just wouldn't accept it and didn’t explain what was wrong. That’s 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 this one. You will find the basic text of my counter-claim here. You should, however, read the whole of section 2 first.

2. Filing a counter-claim

Before 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?

Four 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.

1. What is the nature and character of use of the citation you make of the other work?
   Is YOUR clipscholarly and used for non-profit, non-commercial ends?
   Answering YES is essential.
2. Is your work ‘creative’ or ‘factual’, ‘informative’ or ‘entertaining’?
   As an ambitious edutainer, I think these are very dubious pairs of conceptual opposites!
   The more you can prove your clip is factual ‘rather than’ creative, informative ‘rather than’ entertaining (whatever those adjectives may mean), the better.
3. How 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), the better.
4. Does your work deprive the plaintiff of any revenue from the copyrighted work you quote?
   Most probably not. It’s much more likely your work advertises the quoted work
   (see also Production tips).
5. Is your work transformative? Does your clip just repackage the quoted work or is your clip fundamentally different from the original it quotes?
   The more ‘transformative’ and different your YouTube clip, the better!

I 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.

If 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.

[Start of counter-claim 2007-11-21, acknowledged by YouTube, 2007-11-22]

That counter-claim was acknowledged by YouTube who replied by email:

3. After the counter-claim

Two 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.

According 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 you’re 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.

4. Self-protection production tips for your YouTube clip

These tips are for those with legitimate reasons for filing a counter-claim.

1. Include a fair-use and/or scholarly-use statement near the start of your clip. It’s 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.

2. It may also help to include, somewhere near the start of your clip, some more scholarly details, for example:

•  Analysis 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 Man’s Gulch.

3. In 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 cite, e.g.
   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 the film.
  
  
• 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.

4. 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 Don’t let them scare you).

5. Testing the 5 points (notes for yourself)

• URL of clip removed: http://uk.youtube.com/watch?v=BKm1EhgV9no (since re-instated)
  
• Name of clip removed: Austria, Shampoo and Gestural Interconversion
• Total duration of clip removed: 03:22

1. Not 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)
2. Factual 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.
3. How much of the work is taken?
   Citations of C20 Fox copyright material used in clip: [1] 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). [2] 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.
4. Citing 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.
5. The 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).

6. Don’t let them scare you

When 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?

1. 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).
2. It’s bad publicity for the big guys to be seen persecuting us little guys.
3. It's bad publicity for the big guys to be seen to be against the legitimate goals of education and research.
4. If your counter-claim is valid, the likelihood of legal action is virtually zero. Do not be browbeaten into submission.
5. US federal law is on our side if we legitimately quote copyrighted stuff according to the five points listed under Filing a counter-claim (above).

Submissiveness 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.

Corporate 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 they’re more likely to roar when they’re threatened with extinction. It’s symptomatic of desparate rearguard actions. Their days are numbered and dinosaurs have small brains.

7. Allies (on this front at least)

1. The 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.
   
2. The Wikipedia articles on Copyright and WIPO (World Intellectual Property Organisation) present some cogent arguments.
3. Creative Commons provides alternative means of registering intellectual and artistic property.
4. The 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.
5. Bloggers are often targetted by the big boys. The Legal Blogger’s Guide can be a useful source of information for self-defense.
6. Chilling 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.
7. Fair 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!
8. Lessig’s Free Culture.

Notes

DMCA = 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, it’s 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 snail mail.

http://www.ikso.net/~dew/blog/?cat=4 says “The popular music scholar Philip Tagg has compiled information on how to file a counter claim if one of your movies is removed by youtube due to copyright complaints which are unwarranted. It can be found here: YouTube Counter Claims, etc.. The page also has a link to the article “Copyright versus the democratic right to know” which discusses the problems copyright creates for academic research and publishing. A highly recommendable book for more information on music and copyright is Frith, Simon; Marshall, Lee (eds.): “Music and Copyright”, 2nd edition, Edinburgh (Edinburgh University Press) 2004 Also check out www.musicandcopyright.org.