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17 U.S.C. section 512
On May 4, 2007, the video ‘Dueling Divas – Beyonce and Des’ree” was uploaded to YouTube, and embedded on a webpage at http://www.benedict.com/Audio/Beyonce/Beyonce.aspx. The video is 4 minutes and fifty seven seconds long, and consists of an introductory paragraph explaining that Des’ree had sued Beyonce (and Sony) for copyright infringement for unauthorized use of the song “I’m Kissing You”, followed by a split screen showing both Beyonce’s version and Des’ree’s version, with the audio panned back and forth between the two every 20 seconds. On August xx, YouTube sent the Copyright Website a take-down notification. On September xx, the Copyright responded with a counter take-down notice. On September xx, YouTube responded that the video had been reinstated. The Copyright Website published a story in 2007 about the copyright dispute between Des’ree and Beyonce (or more technically, between The Royalty Network and SonyBMG). In that story, the Copyright Website reported that on April 14, 2007, The Royalty Network (“TRN”) had filed a copyright infringement lawsuit against Sony alleging that Sony had released a CD and music video performed by Beyonce of a song originally performed by the recording artist Des’ree to which TRN held the copyright, and to which Sony had not obtained a license and was not authorized to use. Contemporaneous with the authoring of the article, the Copyright Website produced a video entitled “Dueling Divas – Des’ree v. Beyonce”. The video is 4 minutes and fifty seven seconds long. Uploaded the Dueling Divas video to YouTube. Using YouTube’s embed feature, Copyright Website embedded the video in its Beyonce and Des’ree article. The article is publicly available on the Internet address: www.benedict.com/Audio/Beyonce/Beyonce.aspx. On June 4, 2007, the parties in the Kissing You Case filed a stipulation to adjourn TRN’s motion for preliminary injunction pending completion of settlement. On August 20, 2007, Defendant demanded that YouTube remove the Dueling Divas video from the YouTube website because the video allegedly infringed a copyright owned or administered by Defendant. By authorizing the demand, Defendant affirmed under penalty of perjury that their notice of infringement was accurate and that they were authorized to make the infringement claim arising from the Beyonce song “Still in Love (Kissing You)”. The Take-Down The number of views had been reset. As a result, YouTube currently shows that although the video was posted over 5 months ago, there are only 20 something thousand views, a crushing blow to both my ego and reputation as an effective educator. On August 20, 2007, YouTube sent Copyright Website an email indicating that it had removed the Dueling Divas video pursuant to Sony’s notification that the material infringed their copyright. The email also warned Copyright Website that repeated incidents of copyright infringement could lead to the deletion of its YouTube account and all videos uploaded to the account.
The Counter Notice
1. On September 6, 2007, Copyright Website filed a counter-notification demanding that it’s the Dueling Divas video be reposted because it does not infringe Sony’s copyright in any way. 2. On September 17, 2007, YouTube sent Copyright Website an email indicating that in accordance with the DMCA that they had processed the counter-notification and reposted the Dueling Divas video. 3. On October 12, 2007, the parties in the Kissing You Case settled and filed a Voluntary Dismissal Pursuant to Fed.R.Civ.P. 41(A).
On one hand, you might say that the DMCA worked just fine. Sony saw its work posted, summarily issued a take down notice. When confronted with the obvious fair use argument, humbly canted Mea Culpa and authorized reposting of the video. Other than some down time, no harm – no foul. On the other hand, you might say that the DMCA was abused in that it was used for purposes for which it was not intended. Indicia of non-infringement: 1. Starts with Copyright Website URL 2. and starts with an introductory paragraph stating: “On April 14, 2007, British diva Des’ree sued American diva Beyonce for her cover of ‘I’m Kissing You’”. The introductory paragraph is followed by a split screen showing both Beyonce’s version and Des’ree’s version side by side, with the audio panned back and forth between the two versions every 20 seconds. 3. Copyright Website then conducted a fair use analysis of the Dueling Divas video using its Fair Use Visualizer, an online fair use analysis tool located at: www.benedict.com/Info/FairUse/FairUseVisualizer.aspx. Under the heuristics of the Fair Use Visualizer, a fair use score of 50 or above is presumptively fair use. The Dueling Divas video earned an exceedingly high fair use score of 81. 4. . In the description field, Copyright Website entered the following: “Des'ree singing ‘I'm Kissing You’ and Beyonce singing ‘Still In Love (Kissing You)’, an allegedly infringing cover song.” 5. In the tags field, Copyright Website entered the following tags: Copyright, benedict.com, fairuseScore, 81, Beyonce, Desree. The tags are searchable using the YouTube search engine, and they are exposed to other applications via YouTube’s web services. The Copyright Website’s article on using the fairuseScore tag as a proactive notification of non-infringement includes a data table that accesses the YouTube web service and shows all videos that have been uploaded providing proactive notifications of non-infringement by including a fairuseScore tag. The article was publicly available on the Internet address: www.benedict.com/Info/FairUse/YouTubeScore.aspx. 6.
Consider this – one of the main messages of the video is that Sony, an aggressive enforcer of its copyrights, is also guilty of infringing the copyrights of others, and may not respect copyright as much as it claims. No matter how you cut it, it’s clearly an embarrassing moment for Sony. So the Sony calculus may have gone something like this: this video is embarrassing, make YouTube take it down. If the poster has his act together and responds with a counter notice, at least we’ll have had it dark for 20 days, and its popularity will be impacted, and we’ll just have to grin and bear it from there. So what is Sony’s obligation as far determining whether to issue a take down notice? Is it sufficient to simply notice that some portion of your work has been incorporated into a work that has been posted? What would constitute effective notice? Would the following factors reach that threshold: 1. Introductory paragraph explaining copyright infringement at issue. 2. Fair Use Score posted in the tags 3. Link from YouTube’s help section back to Copyright Website’s Fair Use page.