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Weekly Column

Broadcast Denied: It's easier than you think (or even than it ought to be) to get your video pulled from YouTube.

Status: [CLOSED] comments (47)
By Robert X. Cringely
bob@cringely.com

Old video never dies, it just comes back to haunt you. I experienced this myself when an interview I did with the BBC found its way into a very prominent position on the A&E Biography episode about Bill Gates. I said it, yes. It was true, yes. I just didn't expect THAT interview to play on A&E three years later. Silly me.

YouTube and similar video-sharing sites compound this effect by making these clips available essentially forever. That is unless they are taken down at the request of the copyright holder, which is what this column is about.

A reader with the screen name Bursting Squidoo last fall posted a couple clips taken from my show "Triumph of the Nerds" as part of a web site he created concerning the current legal battle between Apple and Burst.com. The legal part is an old story, of course. Apple and Burst are fighting over patents Apple says are invalid and Burst says are not only valid but Apple is infringing. The outcome of this case, which is still a year from trial, will have a huge impact on Internet media of all kinds.

Mr. Squidoo is on the side of Burst.com in this dispute. He's apparently a Burst investor and a member of the very active Yahoo Group of Burst investors and those interested in the company.

The video clips Squidoo posted to YouTube are probably among those Steve Jobs would like to forget, especially as the CEO of a company charged with patent infringement. Since the clips were challenged and withdrawn, I can't point you to them, but I CAN share with you the money quote, courtesy of the "Triumph of the Nerds" transcript available all along right here on pbs.org:

"Steve Jobs: Ultimately it comes down to taste. It comes down to trying to expose yourself to the best things that humans have done and then try to bring those things in to what you're doing. I mean Picasso had a saying, he said good artists copy, great artists steal. And we have always been shameless about stealing great ideas and I think part of what made the Macintosh great was that the people working on it were musicians and poets and artists and zoologists and historians who also happened to be the best computer scientists in the world."

Not exactly the sort of statement you want your opposition to show to the jury in a patent infringement trial, is it?

Squidoo posted the clips on YouTube in October, where they lived until March 20, 2007, when suddenly they didn't. YouTube had removed them from its servers sending this message:

"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 NBD Television Ltd. claiming that this material is infringing:

"Great Artists Steal - Triumph of the Nerds: http://www.youtube.com/watch?v=IeNumls8hcE

"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."

Don't you wish that notices like this one were signed by real people with real names? I do.

But no matter who signed it, there is a lot of interesting information presented in this notice. Before I tear it apart, please understand that while I wrote and hosted Triumph of the Nerds and wrote the book upon which the series was based, I do not own the copyright for the show (I do for the book, though). So whatever Squidoo has done here doesn't infringe any of MY rights.

Having said that, I think that he probably DID infringe the rights of the Triumph of the Nerds copyright holder. Squidoo is relying on fair use to give him the right to excerpt the show, but I don't think fair use normally covers clips that are five minutes long and extensively recut at that. Thirty seconds, maybe (plenty to get the money quote), but five minutes? I don't think so. Squidoo's error was in trying too hard to place that quote in the proper context. He went too far.

But Squidoo DIDN'T violate the copyright of NBD Television Ltd., because NBD -- a London-based distributor of films about music and musicians -- DOESN'T HOLD THE COPYRIGHT TO TRIUMPH OF THE NERDS. That copyright is owned by Oregon Public Broadcasting, which made the show.

I contacted Rebecca Morris, chief counsel at Oregon Public Broadcasting. She had not heard of NBD Television Ltd. and had never been contacted for permission to act on behalf of Oregon Public Broadcasting in this matter.

I contacted NBD Television Ltd. And they did not reply.

I contacted YouTube. And they spent all day coming up with this statement: "We do not comment on individual DMCA notifications. However, we have a comprehensive copyright infringement notification and counter-notification system in place. More details are available at http://www.youtube.com/t/dmca_policy."

That YouTube statement is again not from a person but from a company.

Now here is what makes this little episode interesting. I spent about 20 minutes looking for Triumph of the Nerds video clips on YouTube and came up with 15. I am sure there are others. Eight of these are Steve Jobs explaining how Microsoft has no taste. Again from the show transcript:

"Steve Jobs: The only problem with Microsoft is they just have no taste, they have absolutely no taste, and what that means is -- I don't mean that in a small way I mean that in a big way. In the sense that they don't think of original ideas and they don't bring much culture into their products. And you say why is that important -- well you know proportionally spaced fonts come from type setting and beautiful books, that's where one gets the idea -- if it weren't for the Mac they would never have that in their products and so I guess I am saddened, not by Microsoft's success -- I have no problem with their success, they've earned their success for the most part. I have a problem with the fact that they just make really third rate products."

Why didn't NBD Television Ltd. ask YouTube to pull down those clips, which have been seen a total of several hundred thousand times? They are far more popular than Squidoo's Picasso quote.

Talk about copyright infringement, though. There's a guy named AppleRumorTracker on YouTube who recut much of "Triumph of the Nerds" into a pretty darned good five-part, 46-minute compilation of interviews with only the occasional question in my voice sneaking through. He removed me from my own show. AppleRumorTracker even changed the title of the show. Why didn't NBD Television Ltd. ask YouTube to pull down those clips, which suck vastly more value from the original project?

They only pulled the two video clips that were relevant to a high-profile lawsuit, though I hardly think Apple v. Burst.com is well known in London, or at least I wouldn't have expected it to be.

YouTube has a careful process here. They let people post pretty much anything, then count on copyright holders to protest, at which point YouTube automatically brings down the clips. There is a counter-notification system where a guy like Bursting Squidoo can claim that NBD Television Ltd. isn't the copyright holder and therefore isn't qualified to demand the clips be removed. The Digital Millenium Copyright Act (DMCA) is quite specific about this -- I can't get YouTube to remove Triumph of the Nerds clips, either, only the actual copyright holder Oregon Public Broadcasting can do that.

The DMCA also has equal penalties for those who infringe and those who falsely claim copyright holder status -- something YouTube glosses over in its rush to avoid counter notifications. Making a false DMCA violation claim and making a false counterclaim are equally illegal, though maybe that doesn't have much bearing in the UK.

Of course this could all be quite innocent -- just a simple misunderstanding, but I find it suspicious. Why those two clips and none of the others? Could this be more "pretexting" like Hewlett Packard used last year to illegally gain the telephone records of reporters?

Probably not.

But I'll keep on this story until I know for sure. Count on that.

Comments from the Tribe

Status: [CLOSED] read all comments (47)

I don't think I agree with the particular logic of your fair use analysis (although I should admit I'm more familiar with print copyright than video.)

5 minutes out of a 165 minute production is just barely more than 3%. It's my perception that percentage of the whole should make a bigger difference than the absolute amount of time. (I suppose you could argue that it's 9% of one episode, and I'd still argue fair use should cover that.)

On the other hand, you comment that it's "extensively recut at that." This isn't an add-on, it should be the crux of the argument! He's taken your work and made something substantially different out of it. Now, I'd argue that's what copyright is supposed to encourage, but apparently Congress stopped believing that somewhere around the 5th round of tequila sunrises at Sonny Bono's wake.

Joe | Apr 06, 2007 | 9:25AM

Amazing. I know little about copyright, but surely there resides a legal document somewhere in the bowels of government bureaucracy (with copies in lawyers' offices), identifying the copyright holder for a work under copyright; and it's remarkable that YouTube apparently doesn't require such documentation be made available to them to verify that the party claiming copyright infringement is entitled to make such a claim. BEFORE they pull something down.

Ralph Hitchens | Apr 06, 2007 | 9:33AM

| Apr 11, 2007 | 11:08PM