This is an unplanned post, feverishly typed out at work after reading this post on Jim Emerson's Scanners. It was in reading this post that I discovered all of Kevin Lee's video essays on YouTube had been removed due to copyright infringement. Jim Emerson says, "This is a travesty of the principles of intellectual freedom that the Fair Use doctrine is designed to protect and encourage under US Copyright Law." I agree. Matt Zoller Seitz also writes about it here and says:
Clips often determine the difference between learning something and truly understanding it. They're quotes from the source text deployed to make a case. Take them away, and you're left with the critic saying, "Well, I can't show you exactly what I mean, so I'll describe it as best I can and hope you believe me."
This, in a nutshell, is the defining difference between criticism pre- and post-millennium. For the first time ever, when someone says to a critic, "Show me the evidence," the critic doesn't need to unlock a film archive vault or even haul out a DVD player to produce it. He can call it up online anytime, anywhere, for anybody.
My take is a bit more personal and a bit more pissed off. Look, I'm not worried about losing my work on montages that I have done over the last seven months. I've got Frames of Reference and Beautiful Monsters and all the rest backed up on hard drive and on disc. If YouTube deletes them before I finish this post I'll still have them. I'm pissed off because it's just one more example of pedantic head-up-their-ass corporate lawyers not seeing the big picture. When I put together a montage, I'm not profiting off of it nor am I burning a copy of the original movie for re-sale. If anyone were to actually buy my montage for redistribution on commercial television every movie in the montage would get royalties. As it is, on YouTube, the only thing those clips are doing, and Matt's and Kevin's, are promoting the movie!
Do you know how many comments there were for Frames of Reference stating that a particular clip made them want to see the movie? Do you know how many clips I see in montages online, on TCM or during the Oscars that make me want to see the movie? It happens all the time. It's a free advertisement for the movie itself! It's promotion you blockheads! It's also a classic example of business models with their feet stuck in the mud, mired in the past. Cinema Styles, Matt Zoller Sietz and Kevin Lee aren't taking business away from the studios, we're sending it to them. I can't imagine any movie or studio out there has been deprived of income due to my montages. If I were selling burned copies of entire movies to all of you then yes, I am taking money for a product that is not mine and no matter how little that money is compared with what the studio made on the movie, it's still money that I am making from someone else's work. But with a montage, I'm working for nothing and essentially producing 2 to 6 minute commercials for the movies involved. My Killing Me Wetly montage done during October Killfest has around 5,000 views and a couple of questions about The Dead Zone clip. If anything, I've probably contributed to at least a few rentals or purchases of The Dead Zone with that silly little montage.
So studios and blinded by greed lawyers: Back off! Jim and Matt and Kevin can give all the eloquent reasons critics need clips to make statements. And they're right. But I'm telling you, since you're clearly not getting it, that the only thing you're accomplishing with this is losing pre-made, pre-packaged advertisements for your product. And you didn't even have to pay for them! It's 2009. Please, for all of our sakes, get your heads out of your asses.
29 comments:
At the moment, this subject is a bit of a smoking gun.
YouTube is a free service with the following stipulation in their guidelines:
Only upload videos that you made or that you are authorized to use. This means don't upload videos you didn't make, or use content in your videos that someone else owns the copyright to, such as music tracks, snippets of copyrighted programs, or videos made by other users, without necessary authorizations.
Couldn't Kevin Lee simply upload his materials elsewhere -- perhaps on webspace that's his? Many ISPs provide free webspace as part of the customer's account. Or he could buy some for peanuts from Yahoo.
He could upload onto his webspace or send out free DVDs if he likes. That clause you quote is the problem. It doesn't fall in line with this 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.
1. the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
2. the nature of the copyrighted work;
3. the amount and substantiality of the portion used in relation to the copyrighted work as a whole;
4. the effect of the use upon the potential market for or value of the copyrighted work.
YouTube's little upload blurb completely ignores that. And as I stated, not only is no studio losing money but they have the potential to make more money from free advertising. Eventually this will go all the way judicially speaking, and as with Sony in 1982 trying to stop people from copying albums onto tape or using snippets of music in other pieces, they will lose. The Supreme Court has come down on that side of it through Liberal and Conservative benches.
I should clarify: Sony tried to say you couldn't take an album or videotape and make a copy of it. Earlier cases that had not made it to the Supreme Court attempted similar things. You couldn't copy something you had and give it to a friend or copy music from the radio and not buy the album. The Supreme Court said no, they can do that all they want. If they want to take your work and re-sell it, then you have a grievance. Otherwise, shut up.
Now they're doing it again. They are not differentiating between someone making a couple of thousand of bootleg copies of a recent theatrical or DVD release and selling them, and someone grabbing clips for use in a montage or video essay. I swear, corporate lawyers cannot see gradations that seem slap-in-the-face obvious to the rest of the world.
My opinions on this will probably be unpopular, so I'd better keep my mouth shut.
Jonathan - You know I love your montages and think the few seconds of films you use isn't hurting anyone's profit margin. I have a slightly different feeling about the roar going around the film blogs about Kevin Lee's work.
Admittedly, I am not a consumer of his work. I don't think I've even seen one. But I have read the reasoning people are using to justify YouTube keeping them up:
1. People have put full-length movies on YouTube.
2. It's good publicity for the films.
3. Nobody cares about these films anyway except the most rabid film buffs and scholars.
4. Important people like Jonathan Rosenbaum have been a part of them.
5. They inspired Matt to quit his job and be creative full time.
6. Copyright laws are out of date.
7. Greed is bad.
OK, well, aside from the free publicity angle, which you put forward, I don't think any of these other reasons hold water. I'm not entirely sure, but I think most of the full-length films I've seen on YouTube are public domain. Regardless, the "everyone else is doing it" rationale didn't work for me in 3rd grade; it shouldn't work now.
I'm delighted that Lee has inspired and attracted noted cinephiles to participate, but what does that have to do with copyright infringement? Perhaps the laws are outdated, but they are still law and they actually do protect intellectual property. How hard would it be for Kevin Lee to request permission? I do it all the time and almost never have a problem. I usually don't even have to pay. Couldn't he get some kind of acknowledgment of his teaching (you can be a guest lecturer with little problem) to allow him that avenue for permissions?
Greed can be bad, but I stand by the creator's right to make a living from his or her work. I've been ripped off myself, and believe me, it feels bad and makes me pretty angry. And I was a small fry, freelancer in these instances.
I'm with her!
Regardless, the "everyone else is doing it" rationale didn't work for me in 3rd grade; it shouldn't work now.
Agreed, but I never used that argument myself. The fairness doctrine was incorporated for just this thing which is why I quoted it. In each case where a corporation has encountered a new technology and tried to fight that new technology copying their work there have been two criteria applied by the High Court of the Land each time: Full Content and Mass Distribution.
1. If someone should upload an entire movie, that is still protected by copyright, to YouTube then they are putting up the whole work for mass distribution. That means people can watch the movie and not pay a theatre or a DVD company for the right. The person who uploaded it is, in the eyes of the courts, you and me and the corporations, in the wrong.
2. If they copy a movie in full, still protected by copyright, but for their friend down the street, the court says this is not mass distribution and it's okay.
3. If I upload snippets from a movie for a montage to YouTube then it is for mass distribution but it is not the full content and is not therefore in violation of the existing fairness doctrine guidelines.
That's why Napster ran into problems: Full content AND mass distribution.
So I really don't see that you, Flickhead or myself are in disagreement. As with the two of you, I am not arguing for full content/mass distribution. I am making the same arguments that the courts have agreed on and the corporations continuously try to undermine.
There is such a disconnect bewteen studios and fans. They THINK you want to profit, and don't pause to consider that you may be increasing THEIR profits by generating interest in the films.
Lawyers, lawyers, lawyers... f*cking lawyers.
BTW... I wonder if this same type of rule will start applying to bloggers who take screen captures from DVDs.
Jonathan - Yours is the most reasonable argument against YouTube I've seen. I have seen all of the other arguments in other places. I think Spoutblog, which broke the story, had the worst reasons for opposing the decision.
You reminded me of another argument - that it would take forever and lots of legal fees to establish the sometimes nebulous "fair use" of a work. I've dealt with copyright so long, I feel I have an instinctual sense of when I'm taking too much. Even on my blog, which I run at no profit to myself or anyone else, I worry about photo use that is not strictly connected with a movie review (e.g., "Our Backstreets" columns). I think a sensible approach to this problem is for Lee to attempt to negotiate agreements with the copyright owners that establish his use of clips as within the fair-use doctrine.
Nonetheless, even schools have to rent films used for educational purposes. I'm not sure why Lee should get preferential treatment.
I agree with Flickhead on the webspace issue.
Now, I don't know enough about this situation OR the laws to really get into it, but I gotta wonder why if someone isn't generating income off the use of somebody else's work, then how are the breaking the law? In that way, I just broke the law when I made a mixtape for my friends for X-Mas.
Of course, lawyers being lawyers, they could spin it in many ways... the clips, generate hits, which generate ad space, which generate ads, which generate money... so now you owe RKO $53.
Fox - The thing about copyright is that if there isn't any enforcement, there isn't any protection. As idiotic as it seemed at the time, going after individuals who pirated songs was a deterrent effort that probably had some effect. The thing about the Internet is not only are many things free, people now EXPECT everything to be free. If a company isn't making the money, then artists aren't get the royalties. Those are the people who are really hurt. I won't copy CDs I can buy; it's not fair to the artist.
Fox - I agree with Marilyn. It's like the point I made about uploading an entire copyright protected movie to YouTube for mass distribution. As much as I don't give a damn about the bottom line of Studio A, if it's their movie and free and full content distribution on YouTube is screwing them out of profit, no matter how insignificant, it's still their profit to be made.
And to answer your question on screengrabs, go to Jim Emerson's post on it and go to the comments. He covers that there and how it was fought for and won by the writers to use the screengrabs. Technically it's a single frame from the movie while a clip is multiple frames.
I have a photo and video blog that I've mentioned before. Everything on it, the whole damn thing, is nothing but photos and videos shot by me. Not even the music on the videos comes from an outside source. It's music I wrote and recorded for the pieces there. Now, on the sidebar I have a statement that basically says, "Take anything here you want, alter it, copy it, use it up but if you can, link back to me."
Look, I've got the original digitally dated imprinted work. If someone took a photo of mine and made a fortune off of it I could prove it was mine and get the money. If someone's going to use it to adorn their blog, or on a card to someone, or as a banner or whatever, and not give me credit, I don't care. I'd like them to, but if they don't, whatever. Like I said, if someone makes a fortune off of it, I'll find out and get my money. If they're not profiting from it, I make it clear that I don't care what they want to do with it. Use the work however you like.
YouTube owns the webspace, Kevin does not. If YouTube has been getting complaints from MGM or Paramount or whatever about Kevin's clips, it's in their best interest to pull his videos.
I agree. I just wish MGM or whoever could recognize Kevin's videos weren't a piracy for profit operation.
But yes, it's certainly easier and understandable for a company such as YouTube to just remove something upon the copyright holders request. That's why I directed my bile at the corporate lawyers and the studios not YouTube. YouTube is just following good policy with copyright owners.
Marilyn-
I agree with you on the "everything is free" entitlement mentality that the internet creates.
Outside of ownership rights, I think it's also assisted in the diminishing of the art(s). I'm not one of those purists that criticizes others for downloading music, but I am a purist that likes to buy cds for the value of the cover art, lyrics, liner notes, the tangible connection with the product, etc. I know the end of this is inevitable, but it makes me sad. Album art in particular, I think, is special, and I hate having to think of us looking at it on a tiny iPod screen.
Same with movies. Someone gave me a bit torrent DVD of Gran Torino the other day and it looked like cuhh-rap! I had already seen the film in the theater, but I was curious what the quality was like. By cinephile terms, it was unwatchable. Colors blown out, shaky pixels, etc. I would cry if I was a director (esp. a cinematographer!) and someone only knew my work that way.
To Jonathan & Marilyn's point-
The Clock is watchable on YouTube that way, in 15 minute uploaded chunks. And while I was happy to see it so I could watch a favorite scene of mine, it would be a shame to discover it that way.
Thinking about this... mixtapes vs. albums; stills (one frame) vs. clips (multiple frames) there seem to be quite a few gray areas here. Like I said, I don't know the laws, but maybe they already address those.
P.S. Being in the Chicago area, you guys probably know that Sound Bites show. Anyways, they play clips of songs, but never the WHOLE track. I brought that up to a friend and he said that under Fair Use you can play portions of a track, but not the whole thing and still be in legally ok waters. Is this true?
And I've always wondered that about college radio shows that just play random songs off of random albums. Shouldn't the artist be getting paid??? Curious.
Fox, I don't know a lot of the minutia, just the big case points I brought up here. I know with college radio royalties are supposed to be paid but I don't know if they ever are. And because the law is vague (as in, it speaks little to specifics as most laws do so that new developments can be interpreted to be covered) it keeps getting challenged by new technologies.
I do know that the bootlegged stuff I've seen is garbage. I have burned rentals onto my hard drive so that I could return them since it sometimes takes a while to watch them. But I have paid to rent them first and like recording on a DVR, it's just for me to watch when I get around to it. It's not for my permanent collection and gets purged from the drive once I watch it.
I love cover art on albums/cds too. My kids have more music from I-Tunes than I've ever had my whole life and yet they don't have anything brick and mortar. I can scroll through my son's I-Pod and see all the albums he's bought rotate through in a CGI lcd environment but he doesn't actually have the album itself. Meanwhile, I've got tons of CDs downstairs and actual LPs in the attic at my parents house.
They also buy movies that way. I buy DVDs. I want something I can hold!
MGM's probably too busy scratching their head asking, "Why didn't he just ask us for permission?"
Yeah, I'm sure that's a simple process. Easy as pie! Just write Miss Tessmacher at MGM Distribution, Authorized Use Division, allowed six to eight weeks for reply asking for intended use, final product review and release forms and within 27 months, BOOM, you're ready to roll!
I asked Joshua Ralph for permission to use his song "Desert Suit Conspiracy" because it was the first and still only piece of music I used in it's entirety and so felt I definitely should. That's why on that particular video I have in the info section on YouTube the copyright info for it. Because obviously he said yes. He also thought the video was cool. I did not however ask MGM about Forbidden Planet.
I'm sure they'll find out soon enough and I guarantee you they won't be thinking, "Golly gee whiz, why didn't he just ask?" They will instead fear a massive profit loss caused by me, JLapper United, Inc and tell YouTube to delete. And I will lose millions! Millions!
Oh now, you know you can debate whatever you want here. But as for the permission thing, I guess my point remains that fair use is built in for that.
Fair use is a doctrine in United States copyright law that allows limited use of copyrighted material without requiring permission from the rights holders
So the point seems kind of moot, doesn't it? In other words, I am with you 100 percent on creator ownership in line with copyright laws. If Kevin wants to show the whole movie he needs to follow those laws. If he wants to show but a clip for educational purposes or to illustrate a point, he need not, according to the law. So in other words, according to the issue of rights, Kevin didn't actually do anything wrong. That's why I keep arguing this. My argument falls in line with the law. Your argument takes us outside the law and says the law must be followed when it benefits the corporation (full use of material without permission), and it must be ignored when it doesn't (fair use doctrine). I argue for the law in both instances.
BTW... I wonder if this same type of rule will start applying to bloggers who take screen captures from DVDs.
In a sense, that's happened. Currently, unless there's some technology I don't know about (totally possible), you can't take sceen captures from Blu-ray. Which sucks, because when I rent stuff from Netflix, I just rent it old-school because of the strong chance I'll want to grab an image for the blog.
In other words, it ain't gonna get any easier.
Most computer DVD players come with capture options. I'm sure newer computers will have Blu-Ray players with the same don't you think?
MGM's probably too busy scratching their head asking, "Why didn't he just ask us for permission?"
Kevin shouldn't have to ask permission to use what amounts to a brief quote in a critical piece. That's what fair use is all about. The principle of fair use is enshrined in US copyright law to protect critics and creative artists who take limited quotes from others. It's the same thing as when I quote from another critic's writing on my blog in order to respond to it: the principle is the same whether we're talking about words or images, and no permission is needed in either case. But short-sighted corporations choose to ignore this well-established legal principle in order to consolidate their own power. What Kevin did is TOTALLY LEGAL under current US copyright law, and YouTube and the complaining rights holders are obviously in the wrong here.
Ed, that's my point too. Kevin didn't do anything wrong. Unlike others around the net who seem to be saying we can all use whatever we want whenever we want I am not saying that. As I said in one of my previous comments, I'm going with the legalities in both cases; those that favor the studio and those that favor the individual.
Most computer DVD players come with capture options. I'm sure newer computers will have Blu-Ray players with the same don't you think?
I would. But, as I understand it, it's an intentional attempt by BR to limit piracy. Apparently, they're worried about programs that would essentially recreate the film by capturing it one frame at a time, or something like that. Seems far-fetched to me. Then again, I wouldn't have thought standard DVD could look any better, and then BR came along. So, who knows ...
I'm sure there is software that can reconstruct a movie frame by frame and there's also software that allows you to capture stills from computer DVD players whether the player wants you to or not. Most of us buy our DVDs from the store or online, not from some bootlegger in Central Park but piracy does take in a lot of revenue from many people who just don't care, unfortunately.
Flickhead, we get that. And our point has nothing to do with YouTube. It's why we keep mentioning the studios, not YouTube. Why are we butting heads over this? We are not in disagreement. I even said this in a previous reply - YouTube is just following good policy with copyright owners.
I'm with you on YouTube! It's the studios I have a problem with, not differentiating between piracy and fair use. That's the gripe. That's the complaint - Not differentiating between piracy from fair use. That's it.
We do not disagree.
Let us end this now, please.
Does this debate qualify me for a second Dardo? I think it does.
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