All Posts Tagged With: "copyright infringement"

Many are no doubt wondering why I watermark many of the photos I post online. The most obvious reason is that I want to generate traffic for my blogs and other websites. However, this is not the only reason. Almost all of my photos on Flickr (except those with people) have a Creative Commons License 3.0 which allows the end user to 1) to copy, distribute and transmit the work and 2) to adapt the work provided 1) the work is attributed in a manner specified by the author or licensor (me), 2) the work is not used for commercial purposes, and 3) if the work is altered, transformed, or built upon, the resulting work is distributed only under the same or similar license to this one.

Many seem to grasp the meaning of the license while many do not. I have seen my images show up on blogs and even in a presentation from MIT. These were fine as they were not commercial uses. Where I start to have a problem is when images are used for commercial purposes without my express permission. There seems to be some debate as to what commercial means. For me if your site intends to make money (either through direct sales of products, through advertisement, or whatever) your usage is commercial.

I have had pleasant experiences with people asking for permission to use my images and I’ve had not-so-pleasant experiences. One woman (I presume) asks for permission to use one of my images for some jewelry she was creating. I asked for her website URL and photos of similar jewelry she has made before. She refused saying that it was only courtesy that she was asking for permission because my Creative Commons license entitled her to use the image anyway. Another bad experience was this image lifted from Webshots. Webshots used to have a copyright message but replaced it with “uploaded by [username]“. At the time I was not marking my images. While the photo is properly attributed to me, they have watermarked the image themselves and the site is obviously commercial. I contacted the owner of the site and never received a response. Unfortunately, I don’t have much recourse since the site is operated in the Netherlands. I’m especially upset since I stuck my hand practically in the bush where that cayman thought it was hiding to get that photo.

The fact of the matter is that no matter what you try to do to protect your images, everything online is fair game. If this is going to happen anyway, I can watermark the images to 1) better identify my original images and 2) get some attribution. I’ve been experimenting in ways to watermark images internally which would make them more identifiable when searching online. (Of course, that will do nothing to identify print publications.) Once I perfect my method I may talk about it on my GDGT GRL blog.

I’ve been trying to find the facts in the case of Capitol Records, et. al. vs. Jammie Thomas where Thomas was found guilty of distributing copyrighted songs and ordered to pay a fine of $222,000 ($9,250 for each of the 24 songs involved in the case). From what I have gathered, Thomas ripped her own CDs. The ripped music files were found in a KaZaA share on her PC. The evidence against Thomas included the use of her ubiquitous user id “tereastarr” as the id for the Kazaa account and that a computer with her IP address was where Media Sentry found the shared files. While this information seems pretty damning, it is not the slam dunk that it seems.

I don’t know whether Thomas did what she was accused of but something obviously went wrong in this case. Even the guilty are entitled to a proper legal defense and in my opinion Thomas did not receive one. She went into that courtroom with an “I’m innocent and the jury should figure that out” defense which doesn’t work even when you are innocent. Her counsel introduced something about IP spoofing as a possible defense as well although this proved ineffective as a forensic examination was done of Thomas’ PC that found that the music files were in fact in a shared folder in “My Music”.

What went wrong? Forget the jury instructions and all the other things I’ve read all over the place. It doesn’t seem that Thomas’ counsel Brian Toder had an adequate grasp of electronic evidence. You don’t counter electronic evidence with testimony, demonstrations and shaky theories. You counter electronic evidence with electronic evidence. Did the defense have a forensic expert of their own?

Typically in cases involving electronic evidence, a forensic (not security) expert in brought in to do a forensic examination of the defendant’s computers and electronic media. Both plaintiff and defendant will hire their own experts to do separate examinations.

Things that I didn’t see mentioned in anything I read about the case that a forensic expert (on either side) should have brought up include:

• Was KaZaA installed on the computer? When?
• When was it last used?
• What other evidence of use of the KaZaA account existed? (email, etc.)
• When KaZaA is installed does it automatically create an account with the same user id as that used on the PC?
• What software was used to rip the CDs?
• Were the ripped songs automatically placed in the KaZaA directory when ripped?
• Were the songs placed on a portable device?
• Was there any spyware/trojans on her computer that would have caused files to be shared?
• Did the music files contain metadata that can be used to determine what user and software ripped the songs?
• The creation dates were very close in time but what about the modified dates?
• Many other questions …

It might very well be that Thomas lost on a fluke. The plaintiff was attempting to settle with Thomas before going to trial. It could be that they knew that their evidence was not “all there”. It is reported that Thomas will appeal her conviction on the basis of the jury instructions. I hope that her defense hires a forensic expert to examine her computer to answer at least these questions.

UPDATE: While continuing to read articles on this topic I ran across this. There was no electronic evidence other than the name of the account, the IP address, and screenshots of the shared folder Media Sentry discovered on KaZaA. Apparently, Thomas had her hard drive replaced at Best Buy after receiving settlement letters from the record labels. So it turns out that the “forensic examination” that was done was done only on the new hard drive which did not contain any traces of KaZaA but did contain music files. So they had almost no real evidence. The replaced hard drive looks suspicious and explains why the questions that I would expect to be answered by a forensic expert were not answered. However, that still does not prove the case. And the Geek Squad supervisor testified that her hard drive was replaced for legitimate reasons.

In addition it turns out that the defense had originally retained a computer forensics expert. What happened with that? The plaintiff called him as a witness but apparently he didn’t say much. It could be that the old hard drive was trashed or destroyed and that there was no way for the forensic expert to examine anything that would find anything that could help (or hurt) Thomas.

Does the old hard drive exist? Did the plaintiff try to compel it from the defendant? Without it, especially since it was proven that it was replaced for legitimate reasons, I don’t see how they could win. But then juries are unpredictable.

In the end, I think that Jammie Thomas got the best defense that her money could buy. A legal defense is expensive (even a bad one) and computer forensic experts are even more expensive. Thorough forensic analysis of electronic evidence was not done and the defense put the defendant up against the plaintiff’s expert to refute his findings instead of an expert. The defense proposed possible scenarios that the jury probably didn’t even understand instead of at least demonstrating that the scenarios are possible. A computer forensic expert’s findings early on could have provided the defense with enough information to decide whether to settle or to go to trial. Instead, they relied on the “I’m innocent – do the math” defense and it didn’t work.

I think that this a sign of bad things to come especially for innocent people that can’t afford a proper defense.

Tags: copyright infringement jammie thomas capitol records forensic examination

It is important to mention that opinions expressed in this blog are in no way the opinions of my employer.

Last week I heard in the news that Prince was cracking down on YouTube and eBay for not protecting his copyrights. What I am reading in the news is that he is removing grainy videos of his concert in the UK as well as pirated music and videos. There has been no mention of the lip-syncing videos or those where someone else is singing one of his songs.

I used his song in a video and it was taken down. The fact that my video was removed from YouTube still doesn’t sit well with me. Last week or so, I contacted YouTube to find out who to contact regarding my video. They gave me the name of Robert Allen at Universal Music Publishing Group and today I decided to contact him as I felt that there was some misunderstanding about the content of my video as I wasn’t sure about who actually looked at the video to get it removed. This is what I wrote:

From: Kenya Allmond
Sent: Tuesday, September 18, 2007 8:53:13 AM
To: robert.allen[email omitted]
Subject: Questions Regarding Video Removed from YouTube

Mr. Allen,

I was given your name by YouTube as a contact person regarding my video that was taken down being accused of copyright infringement. The video was of my boyfriend lip-syncing to Prince’s Kiss. We were driving along and the song came on the radio, he got really into the song so I took my camera out and recorded it. I thought he was really funny so I posted it to YouTube primarily for the purpose of sharing with friends and family. This was a home video.

While I understand that Prince’s song was in the video (it came on the radio) and was the point of the video since my boyfriend was lip-synching to it, I don’t understand why the video from removed. Under what circumstances is a home video considered to be infringing on copyrights? Am I as a consumer required to license the music in a lip-sync fan video? How much would such licensing cost?

Please provide guidance as I am confused that my video was removed and would like to know what course of action to take.

kenya allmond
kenyaoa[email omitted]
vm/f 202.478.0490

Below is the response I received.

From: Allen, Robert
Date: Tuesday, September 18, 2007 11:21:35 AM
To: kenyaoa[email omitted]
Subject: Re: Questions Regarding Video Removed from YouTube

Under U.S. Copyright law, the copyright owner of a musical composition has the right to permit or deny the synchronization of that musical composition in any audio-visual work. Many of the writers administered by Universal Music Publishing encourage the synchronization of their musical compositions in audio-visual works displayed on YouTube; however, others do not. We respect these decisions by our writers and act accordingly.

Best regards,

Robert Allen

I just love canned responses that don’t answer my questions. Prince is not mentioned by name even though I know that he wrote this song per my legally purchased CD at home. While I know that a copyright holder “has the right to permit or deny the synchronization of that musical composition in any audio-visual work” this email does not specify if it is even possible to even get permission as I asked in my email. His response also specifically mentions YouTube. So does that mean that I can put the video up on some other video sharing site? I won’t but I’m just asking.

At any rate, if Prince does not want fans lip-syncing his songs (or singing them) then I will have to respect that. But I will also have to accept that perhaps I shouldn’t listen to them anymore for fear that I or anyone around me might be tempted to sing them.

This is my personal opinion. I wonder how the rest of the internet especially those who have had videos removed are reacting. I think most people are upset with YouTube but this is not a YouTube issue. Imagine the implications of video recording a wedding, party or other gathering where music is played. An artist might think it is infringing on his/her copyright if posted to YouTube or the scores of other video sharing sites out there.

I think I found out who “The Music Publisher” is. Could it by chance be the National Music Publisher’s Association?

From their site:

Founded in 1917, the National Music Publishers’ Association (NMPA) is a trade association representing more than 600 American music publishers. The NMPA’s mandate is to protect and advance the interests of music publishers and their songwriter partners in matters relating to the domestic and global protection of music copyrights.

I found some interesting press releases on their site:

• NMPA Joins Copyright Lawsuit Against YouTube
• National Music Publishers’ Association opposes FAIR USE Act
• National Music Publishers’ Association Welcomes Introduction Of The PERFORM Act

Hmmm. It’s pretty clear here from looking at their site that the issue with my video and others is not my rights to “fair use” under the U.S. copyright law but whether YouTube has “fair use” rights. These copyright infringement issues are about collecting licensing fees from YouTube – not the individual YouTube subscriber.

Yesterday I received a lovely notice from YouTube indicating that one of my videos was removed due to copyright infringement. The notice also stated that repeat incidents of copyright infringement would result in deletion of my account and all the videos uploaded to said account.

What was the video? Did I record something from TV and post it? Did I rip a DVD and post it? It was none of these. It is a video of the boyfriend lipsyncing to Prince’s “Kiss”.

The email from YouTube said that they received a third-party notification from The Music Publisher claiming that the material was infringing. My problem with this is that they don’t tell me who notified them that my video was infringing their copyright. The Music Publisher? Not only this but they deleted it within a few hours of me making the video public. According to YouTube copyright holders can

sign up for our Content Verification Program which electronically notifies us, removing any room for error, and significantly increases the speed at which we are able to remove any infringing content.

So this is an anonymous, automated process. Even though I love technology, I really hate anonymous, automated processes especially when they take the place of a human. My question is whether anyone actually watched the video that I posted. My suspicions tell me that my video was flagged on the basis of a text search as my description contained “The BF really seems to like ‘Kiss’ by Prince.” My suspicions are bolstered by the fact that Robert Anton’s YouTube account was deleted because of a video where he sang a short portion of Prince’s “Kiss” acapella.

Another video deleting instance was last month when guitar instructor David Taub of NextLevelGuitar.com had over 100 of his video guitar lessons removed from YouTube because a music company accused him of copyright infringement for an instructional video on how to play a Rolling Stones song. Other video questionable take-downs have ranged from videos of friends at a restaurant to videos that had similar titles to TV shows. Again, it’s obviously an automated process.

YouTube has undoubtedly created this process to deal with the large number of copyright infringement claims that it has to process. This is probably the most efficient way to deal with these requests as not removing infringing material can be costly. I do understand that. YouTube/Google currently is embroiled in a lawsuit filed by Viacom over copyright infringement. I’m sure that other companies are waiting in the wings for their chance to collect from YouTube as well.

But this begs the question of “what is fair use?” If I’m at a party or wedding and a song comes on, should I turn my camera off? Am I infringing on a copyright? What about karaoke? If I film or otherwise record someone singing karaoke am I breaking the law? Is a lipsync video pirated? Are these copyright holders using this automated system to get around what would normally be considered fair use?

I am going to submit a counter notice because I am interested in seeing what will happen. In the meantime, I have posted a version of the video without sound to see if it will be deleted as well.

Of course this video has lost its point without the sound. I wonder if “The Music Publisher” considers mouthing the lyrics to a song copyright infringement.