Copyright Issues of Major League Baseball Clips on YouTube

Earlier today, fellow Michigan Law blogger Scott Warheit was asking me about his potential copyright liability for uploading clips of Detroit Tigers games to YouTube and embedding them into his personal blog. Scott is, incidentally, not your average sports blogger. He has been a professional sports columnist for the Detroit News and mlive for years (read his Cutoff Man blog for all things Tigers).

"You're asking me?" I said. "You shouldn't be liable for anything. You're using short clips to report on the games and critique the team, and you have a great fair use argument. Of course, a court might not agree."

"But MLB won't sue me over it?" he asked.

"Nah, they'll just send a takedown notice to YouTube and that will be that."

Lo and behold, not 2 hours later, Scott forwarded me the following takedown email from YouTube:

----- Original Message -----
From: DMCA Notice
To: quovadimusblog
Sent: Wednesday, April 25, 2007 1:29 PM
Subject: Video Removed: Copyright Infringement

YouTube | Broadcast Yourself™
Dear Member:

This is to notify you that we have removed or disabled access to the following material as a result of a third-party notification by MLB Advanced Media claiming that this material is infringing:

Detroit Tigers: http://www.youtube.com/watch?v=ggm2bCI0sK0

Please Note: Repeat incidents of copyright infringement will result in the deletion of your account and all videos uploaded to that account. In order to avoid future strikes against your account, please delete any videos to which you do not own the rights, and refrain from uploading additional videos that infringe on the copyrights of others. For more information about YouTube's copyright policy, please read the Copyright Tips guide.

If you elect to send us a counter notice, please go to our Help Center to access the instructions.

Please note that under Section 512(f) of the Copyright Act, any person who knowingly materially misrepresents that material or activity was removed or disabled by mistake or misidentification may be subject to liability.

Sincerely,
YouTube, Inc.

The offending video included highlights from a recent game to accompany Scott's reporting on a major Tigers victory (it has since been altered to remove the dead file). The post discusses in great deal the performances of Marcus Thames and Placido Polanco in great detail, certain coaching decision by Jim Leyland, and what the win meant for the Tigers' season more generally. It was, in other words, exactly the kind of thing that a sane fair use standard should make possible. Unfortunately, Scott won't open himself up to liability by sending a counter notice, of course.

The situation is a perfect example of how members of the general public don't have any practical access to the fair use defense. Even as a law student with a decent fair use claim, Scott's in no position to lay money and reputation on the line to go head to head with Major League Baseball in a courtroom. MLB sends the takedown notice safe in the knowledge that, even if Scott's use would be deemed non-infringing by a court, it will get taken down any way. And, as I said to Scott earlier today, "that will be that."

It also fits neatly into my recent note topic on fair use and YouTube. In the paper, I argue that the vast majority of potentially infringing content on YouTube should be protected by fair use (in part because the video clips tend to just be foundations for wider discussion, both on YouTube itself and embedded in other sites). I'll write more on this later.

As if that weren't enough for baseball and copyright for one day, Prof. Wendy Seltzer is repeating her infamous YouTube NFL experiment by uploading a short clip of the MLB's overreaching copyright warning that gets broadcasted with each game. Talk about a solid fair use claim: a law professor uploads a 30-second clip of a broadcasted copyright warning to use as an educational example of how often copyright warnings are overreaching. That didn't stop the NFL from sending a takedown notice for their clip, however, and I don't imagine it will slow down the MLB either. I wouldn't be surprised if Prof. Seltzer heads to court by the end of the year; in fact, I'm not convinced that's not what she's aiming for.

Colbert Parodies on YouTube: Fair Use Lives!

The EFF and Stanford's Fair Use Project have a nice win today. Their lawsuit against Viacom, alleging that Viacom abused the DMCA takedown process by demanding the removal of parodies of The Colbert Report, has apparently convinced Viacom to back down.

Viacom now claims they mistakenly sent a request to YouTube to remove the video; while it's no huge precedent, it is a nice acknowledgement that YouTube is an important vehicle for fair use.

Pittsburgh and Rustbelt Revitalization

I was recently reading a post by Michigan Law alum Robert Melton about his hopes of becoming part of the Propel Pittsburgh Commission, and thought I'd share it because it is a classic rustbelt scenario.

The basic goal of the Propel Pittsburgh Commission is to make the city more welcoming to young professionals. In governmentspeak, their goal is to "encourage greater participation in government, identify or create programmatic or policy opportunities in issues affecting young adults and young professionals in Pittsburgh, and to inform various elected and appointed officials representing young people about issues specific to them."

It immediately reminded me of Michigan's Cool Cities initiative, which hopes to... well, let's be blunt. It hopes to make Michigan's cities suck less. There's a focus on mixed-use development, walkability, encouraging growth of new industry, and other similar things that will try to make urban Michigan more attractive. The initiative is (somewhat controversially) based on the research of Richard Florida; you may have heard of his "Creative Class" books.

What is most remarkable about these initiatives, both the PPC and Cool Cities, is that they're necessary. It's sobering to think that an entire region can take such an economic hit that we literally need to reinvent how our society functions. The loss of manufacturing has left a tremendous void, and it's difficult to find optimism in such a widespread collapse.

This is exactly why we need smart, enthusiastic people (Robert Melton, among then) to address the problem. People who grew up in the rustbelt may have had our fair share of employment troubles--as an undergrad I once had to babysit my cousins because not even McDonald's was hiring--but we have a deep, if conflicted, love for the region. If we want to see our cities recover, we need to whole-heartedly support the people with the drive and skills to help.

So good luck to Mr. Melton and to the rest of those working to help the post-industrial Midwest! We need all the help we can get.

Judge Kozinski Speaks on Virtual Property and RMT

via The Forge:

The 9th Circuit's Judge Alex Kozinski addressed the issue of virtual property and real money trade during an interview with Santa Clara University Professor Eric Goldman. What began as a discussion of conversion of airline miles segued cleanly into the virtual world "life points" his son had sold on eBay.

I don’t have any difficulty at all in saying, if you’re in a situation like that and you’re playing this game and you’ve got these sort of life points accumulated and then somebody comes along and steals them other than as permitted by the rules of the game — As you know, there are games where part of the game is protecting yourself from robbers and from being stolen, and it has certain life aspects to it. And if it’s within the rules of the game that you might get attacked by robbers and probably taken away from you, that’s the game. But if somebody circumvents the rules of the game and somehow you log in one day and instead of having 150,000 points, all of a sudden you only have 50 points because somebody has taken those points away, well, those are points I can sell on eBay. I can turn into US dollars, or at least PayPal, which is even better in some ways.

Some very interesting comments in there. First, I think the segue from discussing other intangible property to discussing virtual property is going to become increasingly common (and maybe unavoidable). Its star has risen.

Second, this gives a good insight into his thoughts about player-player misappropriation, but in many ways that worries me less than designer-player misappropriation. I'd be interested to hear his thoughts about virtual property confiscations or account bannings or the like.

Third, his focus is relentlessly on the commodification of virtual property. "What can be sold can surely be stolen," he says earlier in the transcript. This follows Jack Balkin's approach to determining when virtual property is protectible, but I have concerns with it. As I argue in my upcoming paper (look for it in issue 9:1 of the Texas Review of Entertainment and Sports Law, plug plug plug), focusing entirely on the fairly vague standard of commodification leads to serious problems with predictability.

For example, you can sell World of Warcraft Gear, and Kozinski says what can be sold can be stolen. But your sale is completely outside the terms of service and isn't supposed to happen. Practical commodification and legal commodification are not likely to be the same thing in many cases.

Commodification also doesn't satisfactorily address the underlying nature of the property in question. Just because someone is willing to pay $1 for something doesn't make it inherently different. And after all, we're talking about a dividing line on one side of which are things you can own, and on the other side are things that are unownable. That's a pretty heavy distinction, and I don't think I like the basis of that decision having nothing to do with the nature of the property. In my paper, I argue that collaboration--the ability of users to meaningfully create and add to the environment--provides this kind of perspective.

At any rate, it's good to see Kozinski's thoughts. He may be slightly fuzzy on these "life points" (to be fair, he didn't have the chance to research it), but it looks like he grasps the basic problems very well. If I could be confident that every other judge would "get it," I might not worry as much about what the impending case law is likely to say.

There Is No Hastings Law School Shooting Threat

A quick word on the rampant rumors of a Hastings Law shooting threat.

It all started, not surprisingly, as a joke gone wrong on autoadmit. User Trustafarian, a UC Berkeley 1L, wrote:

Subject: Just decided not to do a murder-suicide copycat at Hastings Law

I went to bed all set for "Bloody Wednesday," but when I woke -- to sun, to flowers in bloom -- I just couldn't bring myself to suit up.

Maybe tomorrow; I hear rain's in the forecast."

Trustafarian quickly edited out his initial post, but a worried Hastings student reposted it and contacted the authorities. Everyone on the board now seems to be in agreement that it was a flame, but not before Hastings cancelled classes for the day.

The Hastings student who reported it has defended his actions, and AutoAdmit has released a statement a statement which indicates they handed user information over to the FBI.

In short, there is no legitimate shooting threat at Hastings Law. The only story here is that a 1L may have just gotten himself into serious trouble due to a stupid joke with the worst timing in the history of all stupid jokes.

The lesson to take away? What you write on the internet doesn't exist in a vacuum. A little bit of thought is in order before you commit something to the collective memory of the World Wide Web. Like an elephant, it never forgets.

Update: The dean of Hastings Law has sent a new email, explaining the school's response and knocking AutoAdmit's statement as "self-serving." Although the school acknowledged that everything seemed to be on the up and up, it explained it would continue to check IDs "during this period."

More on Virtual World Taxation

Slashdot points the way to more on virtual world taxation. "That goofy World of WarCraft gnome . . . isn't any more intangible than, say, stocks.

YouTube "Claim Your Content" Anti-Piracy Feature Screws the Public

Several outlets are reporting that YouTube has "announced it will soon release a software tool that’s supposed to keep copyrighted videos from being uploaded to YouTube." (from WSJ Law Blog). From c|net:

The new system, which Schmidt called Claim Your Content, will automatically identify copyright material so that it can be removed.

From a business standpoint, this no doubt makes sense for YouTube; a successful filtering system would pull them out of the copyright frying pan a little. From a policy standpoint, this is devastating.

I'm strongly of the opinion that a great deal of the content on YouTube--even the unauthorized content--should be protected by fair use. In fact, I've got a 25-page research paper that will be completed tomorrow night that argues exactly that. The trouble with filtering is that it completely bypasses copyright law. Like DRM, content filtering prevents a people from even getting to the point where they can argue their use is non-infringing.

If I upload a 10-second clip of a TV show on YouTube and embed it in a critical review of that television show, that looks a hell of a lot like unauthorized quotations that have been used in book reviews for decades. Book reviews are classic fair use, and I have yet to see anything to convince me that short clips on YouTube for similar purposes are distinguishable simply because they're a video quote instead of a text quote.

But now, the context of the use becomes immaterial. If YouTube filters all copyrighted content, I can no longer upload and make legitimate use of that content. Online culture is being gagged because of the threat of crippling litigation from the content industry.

Once YouTube filters, the market will no doubt provide a replacement that allows copyrighted material to be uploaded. No replacement will last long, though, because the pressure being exerted on the business structure isn't something that can be remedied by law. Viacom and the other bigger companies can bankrupt an upstart video-sharing site just by getting them into court; it won't matter that the court won't have the chance to make a decision, because the business won't survive that long (Napster and mp3.com both folded under this kind of trouble).

The end result is that the general public will be blocked from the protections explicitly extended to us by section 107 of the Copyright Act, which allows use, under certain circumstances, of copyrighted material "for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research."

Fair use will continue to protect cable news stations, Ebert & Roeper, and others who make fair use of video content over television, because they have their own infrastructure to rely on. The general public, in contrast, relies on services like YouTube as a necessary intermediary. Filtering will make it impossible for us to engage in completely legal use of copyrighted material.

The content industries win. They can now force traffic to their sites to see 5 second clips of South Park (and, incidentally, prevent you from using that 5-second clip in any way they don't authorize). YouTube wins, since they can chase away the bigger lawsuits and begin to build meaningful relationships with the content industry.

The only loser is us.

80-100 Year Olds Sing The Who's "My Generation"

Meet The Zimmers.

They are, I'm just assuming here, the world's oldest rock band. Their lead singer is 90, and their oldest member is 100.

Here they are rocking out to The Who's "My Generation" (with the famous "I hope I die before I get old" line becoming head-scratchingly defiant). Also note the old woman holding a sign that says "I'm bored in old people's homes."

Law Student Blogger Directory Update

The Law Student Blogger Directory has been updated. One removal (unfortunately the only blog from its school), and 7 additions.

Columbia
            Luis Villa's Blog (1L)

Harvard
            Legally Wed (2L)

University of Houston
            Brown Boy Blog (1L)

University of Texas
            Coleslaw (1L)

Unknown
            A journey through the mind of a lawyer in training
            Law School Story
            PT-LawMom

Use of Seuss Can Cook Your Goose

Anthony Falzone at the Stanford Fair Use Project blogged today about a songwriter who recorded several Dr. Seuss books in the style (and voice) of Bob Dylan. A couple links to the song survive over at wfmu.org, so check them out before they're gone.

The trouble instantly brings to mind the fair use defense to copyright infringement. A determination of fair use is (theoretically) based on four factors: (1) whether the use is transformative and whether it is commercial, (2) the nature of the original work (whether it's non-fiction, for example), (3) the amount and substantiality of the portion used, and (4) the effect of the use on the potential market for the original work.

In a salon.com article about the controversy, Washington University professor Jennifer Rothman argued that the "Dylan Hears A Who" series stood no chance at a successful fair use defense because it's not transformative. (She also argues that the Dylan impersonator appropriates too much of the material, but that conclusion seems to just be a domino effect of her transformative use analysis). Falzone thinks she's wrong (although he doesn't say why).

It should be noted that Dr. Seuss's estate has a history of... let's call it "unfriendliness"... toward those who adopt his writing style for comedic purposes. In 1997, the Ninth Circuit ruled against Penguin Books for their publication of "The Cat NOT in the Hat," a book which told the story of the O.J. Simpsons trial in the style of Seuss's famous "Cat in Hat." (109 F.3d 1394)

The estate can't be blamed, really. Seuss's style is easy to adopt and instantly recognizable, so it's great fodder for people looking for a gimmick. A murder mystery written in the style of Seuss, for example, would likely grab more attention than one that didn't have such a familiar context. Courts have even expressed concern in their fair use analyses about works that incorporate existing works simply as an attention-getter. I think it's much ado about nothing, but this is the law we're talking about.

That said, I think Rothman is wrong in theory and right in practice. I think an impersonation of Dylan singing Dr. Seuss should be considered transformative (much in the same way that many mashups should be considered transformative). The complete alteration of context and the melding of multiple expressions to completely a wholly new work should not be considered infringing (copyright's purpose is supposed to be to promote "the Progress of Science and the Arts" by encouraging the creation of new works). The Dylan impersonator added something new, if only in the basic idea of the transformation, and he certainly changed the character of the work. However, I don't think many courts are very comfortable with a flexible transformative use standard.

Of course, even non-transformative (or "consumptive") uses can still be fair use, because there's three other factors to consider. In this case, for instance, it would be tough to argue that a Seuss-by-Dylan recording harms the potential markets for either of those works. Rothman seems to decide that the work is not transformative and thus not fair. As much as I disagree with assigning so much weight to the transformative use factor, I also think that's exactly what most courts would do.

I think possibly the central problem highlighted by this whole mess is Souter's distinction between "parody" and "satire" in Campbell v. Acuff-Rose. Souter wrote:

"parody needs to mimic an original to make its point, and so has some claim to use the creation of its victim's, or collective victims', imagination, whereas satire--which has been defined as a work in which prevalent follies or vices are assailed with ridicule or are attacked through irony, derision, or wit--can stand on its own two feet and so requires justification for the very act of borrowing."

The distinction is... silly. It's silly that using a clip of "American Idol" to parody the show is more likely to be fair than using the same clip to make a satirical comment on America's disinterest in actual voting. The distinction also doesn't recognize that humor is often neither parodic or satirical, but merely referential.

I dislike any formulation of fair use that is hostile to two of these forms of comedy on the basis that the reference isn't necessary. Then again, I shouldn't be surprised that the Supreme Court needs its comedy radar tuned a little bit.

Todd Goldman and the Copyright Example

Any law student currently enrolled in a copyright course should take a peek at the debacle that is the Todd Goldman situation. Goldman is a successful t-shirt artist who was recently accused of copying a popular webcomic for one of his t-shirts.

Unfortunately for Goldman, the original artist was a Something Awful goon; the community is not known for taking it easy on people they dislike. With goonrage activated, people scoured the internet and who knows what other sources to find more than a dozen examples of alleged copying.

Anyone looking to run through some pre-exam infringement examples should take a look at this collection of allegations. It includes the original pictures and the modified pictures, so it's pretty easy to run through the infringement analysis for practice.

Meh

I'm not sure there's such a thing as a "happy law students" as finals approach. Sure, it varies from day to day and semester to semester how irritated we are, but during the couple weeks as classes wind up the law quad tends to be a ball of tension.

Funny enough, the thing that's getting to me most is the prospect of moving again. It really takes something out of you to uproot so constantly. Since the beginning of 2004, I estimate that my wife and I have moved 7 or 8 times. By the beginning of next year, we'll have added 3 more moves.

There's nothing that makes me feel older than the desire to just settle down, and it's something I think about with more regularity now. We want to travel, but we want a home base. As it is, we don't have "homes" so much as just a parade of places we move our stuff into for 3-8 months.

Soon, though. I graduate in December, and after that we can stop living our lives as if a "semester" is a meaningful block of time.

The Path to Publication: Part 4: Success!

Success!

"This Land Is Not Your Land: Second Life, CopyBot, and the Looming Question of Virtual Property Rights" will be published as an article in Volume 9:1 of the Texas Review of Entertainment and Sports Law. The issue will be hit print somewhere toward the end of the upcoming fall semester.

Some interesting numbers for you: I submitted to 39 different journals. Over the course of approximately 3 weeks, I received responses from 14 of them. Of those 14 responses, 4(!) extended publication offers. I'll talk more about this whole part of the experience in a later post.

It's a big moment for me. I went through stretches where I wasn't sure the article would amount to anything, and I dreaded the thought of having a 60-page nothing. My wife, as always, kept me sane through the process and also offered a great deal of help in the editing process. It feels very good for this whole experiment to be successful.

Thanks are especially due to the blunt editing of Professor Jessica Litman (who at one point said "I think you're crazy, but you make a decent case for it.")

If you didn't follow the posts as I went, you can catch up here:
Part 1: Finishing the Draft
Part 2: Outline and First Rejection
Part 3: The Accidental Professor

Is Virtual World Gambling Real Gambling?

A great deal of attention has been paid recently to the issue of gambling in virtual worlds like Second Life. This isn't the same thing as online casinos, notice, because players use virtual currency. Of course, much of that virtual currency can be quickly exchanged for real currency, so the line becomes muddy.

The questions raised are almost endless. Is the money real or fake? Is the gambling real or pretend? Does it matter? What does the FBI think?

c|net reports that Second Life developer Linden Lab has requested advice from the FBI as to the legality of virtual gambling. Like everyone else who takes a glance at virtual property, the FBI seems unsure.

Thomas Malaby at Terra Nova raises the question of whether a virtual gaming commission will be necessary. Meanwhile, Slashdotters chime in by the dozens. nurb432 seems to summarize the general public response to virtual property issues: "its a freaking game!!! What the hell is going on with this nonsense?"

The original news article points out that the amount of money per transaction is extremely low, but, like everything else in virtual world economies, those nickels and dimes sure add up. Still, Prof. Joshua Fairfield comments on the Terra Nova post that the controversy is "all teapot and no tempest" because the Second Life economy is just too small to cause serious trouble.

Whether or not Prof. Fairfield is right, it remains an interesting academic question. Like so many things in Second Life, the issue of virtual gambling walks a bizarre line between reality and fiction that we'll be struggling with for years.

For now, Second Life is a pretty fact-specific place. There's simply nothing else quite like it, which is why it gets so much hype and coverage. And strictly in the context of Second Life, I have a hard time buying the argument that virtual gambling isn't gambling. Players convert real money to virtual money, gamble it, then convert their virtual winnings back to real money. Smells like casino chips to me, and I hesitate to start drawing counterintuitive lines between the virtual and real worlds.

Mashups

One side effect of my YouTube research is that I've start getting into mashups again. Video mashups generally don't interest me much, but I'm a sucker for mashups and remixes of songs.

Year ago I stumbled across Nirvana vs. Destiny's Child, "Smells Like Teen Booty." It totally blew me away how well they combined. The song is embedded below, and you can safely ignore the Harry Potter-themed video that someone set the music to.



There was also the classic Optical remix of the Pac-Man theme and, of course, Danger Mouse's "The Grey Album" mashup of The Beatles' "The White Album" and Jay-Z's "The Black Album."

Today, I bumped into some new stuff. First: The Kleptones, who have done more mashups than you can shake a potato masher at. A highlight so far is "Closer to the Boxer" (track 8, disc 1 from "24 Hours"), which mashes up The Cure's "Close to Me," Simon & Garfunkel's "The Boxer," and a rap I just can't identify. If you're interested in this stuff, I suggest checking out some tracks from their site (torrent them to save the poor bastards some bandwidth money).

And then there's this: NIN's "Closer" mashed with The Beatles' "Come Together." Fantastic.



Time to start collecting, I think. This stuff has a tendency to surface and then get buried pretty quickly.

Edit: Good Blimey has a Flash jukebox that has about 7500 mashups you can listen to. They obviously vary in quality, but where else can you hear Guns N' Roses vs. Norah Jones, Jet vs. The Muppets, Lou Reed vs. Suzanna Vega, Britney Spears vs. Queens of the Stone Age, etc. etc. etc.?

Tip of the Week: Dead Leprechauns

When you leave a McDonald's shamrock shake in some forgotten corner of the room for 5 days, don't inhale deeply when you finally go to throw it out. It smells like a leprechaun crime scene.

Virtual Property in Law School

Via Terra Nova:

Elizabeth Gard, visiting professor at Seattle University School of Law, decided to experiment with her 1L property class by introducing them to virtual property. The idea, she explains, was to "teach property as three phases: a feudal British past, a contemporary traditional property context, and the future as embodied in worlds like Second Life and the concept of “virtual” property."

So how does one go about incorporating virtual property into the traditional 1L curriculum?

We have one avatar – Fizzy Soderberg (named by the first group) and fourteen groups of seven to nine students. We would have a pet hamster, so to speak. We would follow Fizzy’s journey through the semester. Each group would be given ONE week to explore Second Life with Fizzy, gather the latest news, and most importantly, research a key concept in property law. At the end of the week, the students record a screencasting in my office. The PowerPoint is prepared by the self-appointed group leader. Each student creates their own portion of the script. Then, the 15-20 minute presentation is presented to the class, as well as being posted at Fizzy’s Second Life (www.fizzysecondlife.blogspot.com) and iTunes.

You can read more details at her post on Terra Nova.

Speaking as someone who (allegedly) skipped more than a few Property classes to play ping pong, I think almost any alteration to the traditional approach to 1L Property is welcome. Nothing exemplifies the impractical, ivory tower nature of law school quite like spending a week on an 1805 fox hunting case.

Using Second Life as an educational simulator is an excellent choice, I think. Not only do you get to start touching on questions of virtual property (which, despite my interest in the topic, isn't so helpful right now), but you also get to "see property in action," so to speak.

Nothing taught me the rough idea of urban design quite like Sim City, and I'd be a damn poor giant robot pilot if not for Mechwarrior 2. It also doesn't hurt to jazz up the material a little bit; I hope Prof. Gard's students appreciate the project.