New YouTube Policy Heralds an end to Vidding, Mash-ups, Dancing Babies

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Frederic Lardinois at ReadWriteWeb posts on YouTube's new and unannounced policy of disabling the sound on certain videos:

A growing number of videos now appear without sound and with a notice that these videos contained "an audio track that has not been authorized by all copyright holders." It looks like YouTube is starting to implement audio fingerprinting software that automatically removes licensed audio tracks. We have asked YouTube for a comment about this and will post an update once we hear back from them.

YouTube always contacted its users when it was notified of copyright infringements, but now, it seems like this is an automated process. Predictably, the commenters on YouTube are outraged about this new policy.

Lardinois points out that the new policy will have a detrimental effect on"remixes, mashups, and parodies." Add to that list "vidding," a genre that has exploded in recent years, thanks mostly to YouTube. Lardinois suggests YouTube request a "blanket license" from RIAA-member labels and then give them a cut of the advertising revenue, but based on the RIAA's track record and that of the music industry in general, I don't think the suggestion will fly. 

Here's Jesse Walker writing about vidding back in August (a fascinating interview follows):

Since the 1970s, an underground subculture has been making and privately screening short films. The artists are fans—and critics—of cult TV shows, from Star Trek to Homicide: Life on the Street. Their movies are music videos, edited from pieces of those programs and other sources into something new: a story, an essay, a mood piece, a love note.

These vidders, as they call themselves, weren't the first filmmakers to re-edit existing footage into new works, but they may have been the first to do it as a self-conscious community, training one another in the art and craft of vidding. They also did it invisibly, shying from the spotlight both to avoid copyright infringement lawsuits and simply to keep the work away from viewers not likely to appreciate the form.

Today, of course, YouTube is filled with remixed videos, from "Machinima" movies set in video game worlds to sharp and/or crude political satires. As such activities become more mainstream, the older vidding culture is emerging from the underground and tentatively allowing some of its clips to find a larger audience.

Check out another piece on the "fan video auteur Luminosity," and consider watching my favorite vid of all time, a Mulder/Scully love story

(h/t Simon Owens)

NEXT: The Smartest Guy in the Room

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  1. Wow. Way to strangle the goose that lays the golden eggs.

  2. Parody and fair use should be default positions, with the copyright holder having to establish that those aren’t, in fact, valid defenses (at least to some threshold degree). Without that, the First Amendment reasons for providing those defenses in the first place are obviated. Chilling.

  3. I think Reason brought this on by ripping off the Scorpions for their latest oeuvre.

    But, seriously, AFAIK, the parody-related fair use would only kick in if it was the song itself that was being parodied, not just because the lyrics played into an otherwise unrelated parody.

  4. But, seriously, AFAIK, the parody-related fair use would only kick in if it was the song itself that was being parodied, not just because the lyrics played into an otherwise unrelated parody.

    Of course, self-parody is excepted. Do you have an original theme song, LoneWacko? I need to know what song should be playing in my head when I read your posts.

  5. ^
    worthwhile OLS comment.

  6. Use of a copyrighted work to parody something else falls firmly under fair use.

  7. A related article from Nature:
    http://www.nature.com/nature/journal/v457/n7227/full/457264a.html

    Protected speech: I use the song “Dirty Deeds and they’re Done Dirt Cheap” in a parody of the Bush Administration.

    Protected speech: The Simpsons have Ned Flanders sing “Kindly Deeds and they’re Done for Free.”

  8. Maybe Youtube is really doing this as a favor to everyone, so we won’t have to see so many good songs disrespected by being put in shitty videos.

  9. Neu Mejican,

    There needs to be some clarification on your point.

    Using ANY random song to back a parody video is not protected speech. For example if I made a video that parodied a Bush speech I wouldn’t automatically be able to back it with the latest tune from Celine Dion, or whomever.

    Using a song that plays INTO the parody could be considered free speech, but would potentially be subjected to trial by lawsuit, like your reference to Dirty Deeds (unless the title you mention is not the AC-DC song “Dirty Deeds Done Dirt Cheap” but is rather one of your own “Dirty Deeds and they’re Done Dirt Cheap”).

    Re-writing a song to BECOME a parody is protected. Vis a vis Al Yankovitch.

    In the broadest sense, it needs to be a connected piece of art, and YouTube videos often use backing tracks for non-parody pieces (skateboard routines, etc.) that would be non-protected speech.

  10. NM,

    Parody gets litigated all of the time. Ask 2 Live Crew or even Weird Al, who, last I heard, always gets permission. Fair use isn’t worth much if someone bigger than you comes around threatening litigation. The cost of defense will override any righteousness than your position may have, 99 times out of 100.

    One thing the web has done is to make parody so ubiquitous that the percentage of uses that get cease-and-desist letters has gone way down.

  11. And where does John McCain’s campaign come in on this? That was a kind of parody …

  12. And of course, Youtube has the right to decide what gets put on their site. And that includes modifying content.

  13. Flash is not a web standard, it is a series of incompatible proprietary plugins that barely work even on Abobe approved browsers. As Youtube is entire based on Flash, wish does not even work on my platform, I will not visit it. I feel no sense of loss at all.

  14. Use of a copyrighted work to parody something else falls firmly under fair use.

    No f’in way, but I’ll give you this, Neu, what you lack in knowledge you make up for in self-assurance. “Firmly?” That’s a strong word, strong enough that I think a supporting link to a reputable source agreeing with that statement would be in order.

  15. Re-writing a song to BECOME a parody is protected. Vis a vis Al Yankovitch.

    Al Yankovich doesn’t publish a “parody” song unless he gets the original artist’s permission, which usually requires sharing royalties with that artist. e.g., the flap with Coolio over “Amish Paradise”, where Coolio claimed he never gave permission, despite the fact he was cashing the royalty checks all along.

  16. Brandybuck-
    You don’t care for merlot much either, do you?

  17. http://en.wikipedia.org/wiki/%22Weird_Al%22_Yankovic

    Just a little clarification. “weird Al” prefers to gain artist permission more as a sign of respect for the original artists than anything. The legal wrangling that occasionally occurs seems designed to avoid litigation, which would be more costly in the end for Al’s producers.

  18. cunnivore,

    I was stating an opinion.
    Fair use is one of the messiest areas of the law, but I think my example* shows what I mean.

    *Dirty Deeds Done Dirt Cheap (the work itself, not a re-write).

    All fair use cases are considered in context.
    There are many many contexts whereby using a copyrighted work in a parody of something else would be protected and fall firmly within the domain of fair use. The copyrighted work need not be the direct target of the parody, but the whole would need to transform the work to a new purpose, not compete, yadda yadda…

    FWIW, I have made an assertion…feel free to chop at it with some “appeals to authority” axes. Maybe it won’t stand up.

  19. and cunnivore,

    Remember…appeals to authority axes are among the weakest weapons in argument.

  20. Youtube has the right to decide what gets put on their site

    Yep. They’re a private company. And it’s not like they’re the only video-hosting site in the world.

    the commenters on YouTube are outraged

    It’s so adorable when YouTube’s thieves and hacks get all indignant and illiterate.

  21. “It’s so adorable when YouTube’s thieves and hacks get all indignant and illiterate.”

    I thought it ed, and you said it. Rabid Youtube users claiming some kind of first amendment right are ignoring two facts. First, they signed on to a End User Licensing Agreement when they got an account stating that Youtube can axe pretty much any content for any reason, and second, most of the content they are claiming is fair use tends NOT to be.

  22. I get the feeling that this isn’t something YouTube really wants to do. More likely they have been forced to do it by RIAA lawyers. Sadly for YouTube, there are plenty of other sites that do video hosting without these restrictions and YouTube will probably fade away like Napster while the RIAA plays copyright whack-a-mole with all of the new video sites that pop up.

  23. My daughter loves to make videos for her favorite songs out of bits of Invader Zim episodes. She has had a couple of the videos she has made dropped. They have, in the past at least, sent her a very polite note concerning their decision.
    There are a lot of kids doing this and sharing the videos with each other. I would think that both musicians and tv show creators would want to promote any environment that encourages consumers to buy their product, even if it is for purposes other than what they originally had in mind. These are the serious fanbois and fangurls after all.

    Still, there are instances where I understand their cutting off videos. One time my daughter created a video for a song she liked just before the band themselves were able to make one*. I can understand the band wanting to at least get the first video in there.

    In case you care, it was Weezer’s Trouble Maker

  24. There are a lot of kids doing this and sharing the videos with each other.

    Nobody is preventing them from doing this, privately. But they want the world to see their videos, free of charge, with no impediments, no rules, no property-rights enforcement. YT has had in place, since day one, restrictions on uploading copyrighted material. The deluge of these illegal materials has made enforcement of the Agreement spotty at best, relying on snitches and axe-grinders (the “community”) to rat out perpetrators. Now, evidently, improved technology has made enforcement of the rules (as defined in the Agreement) more efficient.

    Perpetrators haven’t a valid gripe. Might I suggest that, if you are indeed an “artist,” that you try creating your own material instead of riding piggyback on the efforts of another?

  25. ed,

    Perpetrators haven’t a valid gripe. Might I suggest that, if you are indeed an “artist,” that you try creating your own material instead of riding piggyback on the efforts of another?

    Clearly ed is not an artist.

    No artist produces work that does not ride piggyback on the work of predecessors.

    None.

    Not one.

    Never ever happens.

    Ever.

    At all.

  26. Remember…appeals to authority axes are among the weakest weapons in argument.

    Nope; bald assertions, such as “Use of a copyrighted work to parody something else falls firmly under fair use,” with no supporting evidence of any kind, are even weaker.

    If you’d made an appeal to authority it would actually strenghten your argument, that’s how bad it is.

  27. No artist produces work that does not ride piggyback on the work of predecessors.

    You know what he means, Neu. There are degrees of riding piggyback. An author who writes a story where the hero finds a powerful object and goes on a long journey to destroy it, and an author who copies The Lord of the Rings word for word, just changing the names of the characters, are both piggybacking on Tolkien. Yet there is a vast difference in their artistic integrity, don’t you think?

  28. “ed” sed: “Nobody is preventing them from doing this, privately. But they want the world to see their videos… ”

    YouTube is preventing them from doing it – privately. There is an option to make the video private, instead of for the whole world to see.

    Whether your opinion about vidding is correct or not, at least you should have your facts straight.

  29. YouTube is preventing them from doing it – privately.

    Really? There’s no other way to share videos besides YT?

  30. cunnivore,

    Nope; bald assertions, such as “Use of a copyrighted work to parody something else falls firmly under fair use,” with no supporting evidence of any kind, are even weaker.

    Which is why I provided a hypothetical example of where use of a copyrighted work in parody was within fair use when the target of the parody was not the copyrighted work, but something else.

    See the example and show me how my assertion is wrong.

    There are degrees of riding piggyback.

    Of course.
    Your point?

  31. cunnivore’s counter argument summarized.

    “I think Neu is wrong.”

    Impressive.

  32. To help cunnivore keep up.

    Course of the argument so far

    Assertion one: “parody-related fair use would only kick in if it was the song itself that was being parodied, not just because the lyrics played into an otherwise unrelated parody”

    Neu’s response: No. Use of a copyrighted work to parody something else falls firmly under fair use.

    Neu’s supporting example attempting to falsify assertion one:

    Protected speech: I use the song “Dirty Deeds Done Dirt Cheap” in a parody of the Bush Administration.

    [maybe Blago’s governorship is a better case].

    Last time I checked, you only need a single relevant counter-example to falsify a universal assertion (see assertion one).

  33. Your counterexample is just another assertion.

    Have courts upheld the fair use status of using a full-length version of Dirty Deeds to parody the Bush administration? I mean actual courts of law here, not the Court of Neu Mejican’s Opinion.

    Also note that your statement “Use of a copyrighted work to parody something else falls firmly under fair use” has an implied universal quantifier as well; yet now you’re claiming you just meant that under some circumstances this is fair use. If I say “things that live in the water are fish” and you point out that dolphins aren’t fish, I can’t claim that I meant “SOME things that live in the water are fish” all along.

  34. And let me clarify that my problem is with your assertion that “Use of a copyrighted work to parody something else falls firmly under fair use.”

    I’m not defending the other person’s opinion, just attacking yours, so spare us the red herrings.

  35. Cunnivore,
    How’s this for an appeal to authority? Or is the SCOTUS not good enough for you?

  36. cunnivore,

    Your counterexample is just another assertion.

    So, given that assertion, tell me where it is incorrect.

    Have courts upheld the fair use status of using a full-length version of Dirty Deeds to parody the Bush administration?

    Another appeal for me to appeal to authority? Can’t you form an argument on your own?

    I mean actual courts of law here, not the Court of Neu Mejican’s Opinion.

    If you want to stick with authority as your criteria for correctness, in a debate on this level on this topic, my authority is as good as that of any court, as long as we concede that 1) courts can render incorrect opinions (they are called opinions for a reason), and 2) there is very little case law in this particular area and (correct me if I am wrong here) precedence will provide very little guidance.

    Also note that your statement “Use of a copyrighted work to parody something else falls firmly under fair use” has an implied universal quantifier as well;

    Not really, you infer a universal quantifier…which motivates this next point you make.

    yet now you’re claiming you just meant that under some circumstances this is fair use. If I say “things that live in the water are fish” and you point out that dolphins aren’t fish, I can’t claim that I meant “SOME things that live in the water are fish” all along.

    A (sort of) valid, if weak, criticism even if we assume that your inference to universal application of the statement is correct. Which, btw, is an incorrect inference.

    Note that the assertion I responded to included a explicit term “only,” which requires a single counter example to refute.

    My assertion on the other hand can not be refuted based on a single example.

    If I had said: “ALL uses of a copyrighted work to parody something else falls firmly under fair use,” then you would have a stronger argument.

    But I didn’t. A class of copying acts falls firmly within “fair use” if there are a number of conceivable circumstances whereby a fair use claim would be valid. There is not a need for all instances of this type of copying to have these valid claims.

    For an illustrative example.

    The premeditated killing of another person falls firmly within the realm of criminal behavior.

    This is a valid statement despite the existence of cases where that killing could be justified.

  37. cunnivore,

    I’m not defending the other person’s opinion, just attacking yours, so spare us the red herrings.

    Actually, you are not doing either…so spare us the attitude.

    What you did was attack me for stating making an assertion.

  38. “stating an opinion”

    “making an assertion”

    reader’s choice.

  39. cunnivore’s problem with understanding language.

    Can he find the logical flaw in this response if given a little bit of help?

    ME: Remember…appeals to authority axes are among the weakest weapons in argument.

    cunnivore: Nope; bald assertions, such as “Use of a copyrighted work to parody something else falls firmly under fair use,” with no supporting evidence of any kind, are even weaker.

  40. cunnivore’s example corrected:

    If I say “things that live in the water are fish” and you point out that dolphins aren’t fish, I can’t claim that I meant “SOME things that live in the water are fish” all along.

    The proper way to re-write my assertion in this example would be…

    “Fish fall firmly within the realm of things that live in the water.”

  41. Neu Mejican | January 15, 2009, 11:28am | #

    ed:
    “Perpetrators haven’t a valid gripe. Might I suggest that, if you are indeed an ‘artist,’ that you try creating your own material instead of riding piggyback on the efforts of another?”

    Clearly ed is not an artist.
    No artist produces work that does not ride piggyback on the work of predecessors.
    None.
    Not one.

    Clearly Neu Mejican is not an artist, or he doesn’t understand the concept. Taking his statement at face value, no musician who uses a chromatic scale can be an artist, as he uses something that was “invented” before his time. That’s like saying nobody can claim to be a writer, because he uses modern English. Nobody can be an architect, because he uses reinforced concrete. Nobody can be a brain surgeon, because he uses MRIs and stainless steel scalpels.

    My own music did not exist before I created it.
    Any genuine artists (creators) here with an opinion?

  42. ed,

    You have my argument exactly backwards.
    Which makes it hard to respond.

    My own music did not exist before I created it.

    But it exists in the form it exists by riding piggyback on the music of your predecessors.

    Any genuine artists (creators) here with an opinion?

    Neu Mejican: periodically paid for his music, visual arts, and fiction since 1984.

  43. ed,

    That makes me, btw, a semi-professional artist. I supplement my income (sometimes significantly) with my artistic endeavors.

    Whether that makes me a genuine artist or not, is up for debate.

  44. ed,

    For an informative read on the issue by genuine artists…

    http://en.wikipedia.org/wiki/index.html?curid=6914946

  45. So, given that assertion, tell me where it is incorrect.

    You made the claim, so it is up to you to prove it.

    The premeditated killing of another person falls firmly within the realm of criminal behavior.

    This is a valid statement despite the existence of cases where that killing could be justified.

    I disagree; the example you give is not a true statement if some premeditated killings are NOT criminal behavior.

    The proper way to re-write my assertion in this example would be…

    “Fish fall firmly within the realm of things that live in the water.”

    You’ve got it backwards; if you insist on this bizarre form of circumlocution it would be “Things that live in the water fall firmly within the realm of fish”.

  46. Kwix, I’m not sure where you were intending to link to, but your link goes right back to this page.

  47. But it exists in the form it exists by riding piggyback on the music of your predecessors.

    Not in the sense that we’re talking about here. Presumably ed isn’t copying the work of his predecessors note for note as vidders do. You’ve claimed to understand this before (at 2:19), even taunting me with a “Your point?” jab, yet it appears you either disagree or don’t understand. Which?

  48. cunnivore,

    You made the claim, so it is up to you to prove it.

    I have.

    I gave an example where fair use would apply to the use of a copyrighted song to parody something other than the song itself.

    You are not satisfied with that example.
    Explain why you feel the proof is inadequate.

    I disagree; the example you give is not a true statement if some premeditated killings are NOT criminal behavior.

    It seems you are confusing the meaning of the phrase “falls firmly” with the phrase “falls completely.”

    You’ve got it backwards; if you insist on this bizarre form of circumlocution it would be “Things that live in the water fall firmly within the realm of fish”.

    The realm of fish?
    How is that analogous to “fair use”?

    Specific case = fish (use of copyrighted material to parody something)

    Category = things that live in the water (things protected by fair use).

    It really ain’t that hard.

    Presumably ed isn’t copying the work of his predecessors note for note as vidders do.

    That’s not what vidding is.
    Vidding is an additive process…start with an artistic creation in the realm of music and add a visual dimension to it. A form of commenting. Seems like fair use to me until you try and sell it.

  49. cunnivore/ed

    The point about piggybacking is this.
    All artistic expression is a form of commenting that incorporates early artistic expressions and traditions, transforms them through addition subtraction or distortion, and gives us something new.

    ed may disagree with the artistic merit of this form of folk art, but there is not a legitimate case that those involved in this endeavor are making something that is less “their own” than the person who wrote the song.

  50. Boo hoo. People without original ideas of their own have to pay the piper for using their incredibly cunning recycling powers. Sounds right to me. So tired of the IP entitlement argument.

  51. Whatever, like we cant find another site for this. Youtube is replaceable.

    I dont care about debate over the legality of this. I’d be listening to copyrighted music online whether it was fair use or not. Youtube can do what they, legally, have to do. And we, as an artistic community, will do what *we* have to do.

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