[anigbrowl]

That's absurd. Youtube provided extensive avenues of dispute and appeal. I think Lionsgate is wrong in this case (although I'm not wholly sure, because using their source material for ~30% of the video is pretty substantial in my view), but Youtube isn't there to act as a court or arbitrator. by law, it has to respect the claims of copyright holders. It is not the agent of those seeking to use copyrighted material on fair use grounds. The authors dispute is with Lionsgate, not YouTube.

[timbre]

Youtube is respecting the claims of copyright holders a lot more than it has to by law.

1. The entire pre-DMCA-takedown process (the first round of complaint and appeal) is not required by law. I think it's a good idea in general (it's nice to have a low-stakes option before you launch into the DMCA process) but the immediate presumption that the complainant is in the right is offensive. Something like "we will start displaying ads if you do not dispute within 24 hours" would sit a lot better.

2. Once the DMCA process has started, the poster was required to go through Youtube's "copyright school", and was limited to posting only short videos. I wish they would wait until one or the other party lost the dispute before doling out punishment and education.

Youtube is within its rights to behave this way, but it's Youtube's choice, not something required by law.

[AnthonyMouse]

These seem like valid but relatively minor complaints. YouTube should fix them. But the heart of the problem lives in the DMCA. If jerks or idiots file a fraudulent DMCA take down, the content comes down before you have a chance to dispute it. Then, even if you do dispute it... the DMCA says it stays down for at least 10 days. Ostensibly to give the claimant an opportunity to file a lawsuit against you, but there is no requirement that they actually do this, and your perfectly non-infringing content remains unavailable even if they never had any intention of doing so. (And if they do file a lawsuit then it stays down even longer... even though they've done nothing but file paperwork and have yet to prove anything whatsoever.)

And then, after your content has been down for a week and a half and finally goes back up, any new set of jerks (or as we saw here, maybe even just the same old jerks) can come along and file another takedown against the same content and it goes back down for another ten days or more.

I would say that it's amazing it doesn't see more abuse, except that it does. SEO companies and similar such scumbags regularly file fraudulent takedowns against their competitors. As far as I can discern, the process Hollywood employs to decide what to issue a takedown for comprises some combination of untrained monkeys and a random number generator. Wendy Seltzer wrote a paper detailing a whole slew of other such issues a couple years ago[1] but still nothing has been done to address it.

[1] http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1577785

[anigbrowl]

I agree wholeheartedly about the shortcomings of the DMCA, and am not sure what sort of equitable mechanism could make those problems go away.

[AnthonyMouse]

We could start by not making censorship the default: If a notice is received, notify the poster of the video that it will be removed in e.g. 24 hours if they don't submit a counter notice. Then it comes down after the grace period if they don't identify themselves and file a counter notice consenting to the jurisdiction of at least one U.S. federal district court, but if they do then the content stays up until a court says otherwise. And given that filing a counter notice is a de facto invitation to be sued, infringers who submit them improperly will have to answer for it in court, which should reduce the number of people willing to do so. On the other hand, in cases like the one in question here, the facts will have to go through the copyright holder's actual lawyers and a federal judge before any censorship occurs, which should do a good job stamping out fraudulent take downs as well.

In reality this is how the legal system works for almost everything else: First you ask nicely, and if the parties can't agree then you go to court. But in most cases the party in the wrong (at least in theory) knows that they'll lose in court and so concedes immediately and everything works as it ought to without taxing the court system.

[chc]

> although I'm not wholly sure, because using their source material for ~30% of the video is pretty substantial in my view

It's a bit of a side track, but: Any commentary on a work could reasonably be expected to feature that work substantially, couldn't it?

[anigbrowl]

I think there's a difference between quoting something in a review or as part of a presentation about film theory (or whatever), and quoting it in the context of a remix, where you're essentially engaging in fan-fiction first and commentary as a distant second (because the commentary is implicit and arguably subordinate to the entertainment function).

Now I am in favor of fairly wide latitude for this sort of reuse, which is a big reason I favor much, much shorter copyright terms, and graduated copyright at that (eg exclusive for 20 years, mandatory cheap licensing for the next 30, PD after that - for example). But it's hard to ignore the rightsholder's concern that this work is less about commentary than simply hitching a ride on a currently-popular franchise. It's not cashing in, since the person isn't trying to monetize it directly, but the person is trying to build their creative reputation from rearrangement of others' work, while denying any and all revenue to the original creator.

As someone who has spent the last decade making films from scratch rather than remixing others' work, I think this is pretty weak sauce, just as I think that DJing falls far short of musicianship. I engage in both activities, but when I'm DJing I don't consider that to be creatively equivalent to composing something original. People who say all creativity is fungible are lying to themselves.

[chii]

> I think this is pretty weak sauce ... DJing falls far short of musicianship.

Why do you think this? A good remix requires just as much ingenuity, just as much creative juices, as an original work. In fact, a remix might require even more ingenuity, because of the constraints of the remix. Of course, there are people who claim to be remixing, but is just putting things thoughtly side by side. But then again, you have original works that are also rubbish.

To me, the eye of the law should treat remix and originals exactly the same - works in their own right. A remix may have derivative works from else where, but as long as it is fair use to a reasonable person, it should be considered as an original.

[gte910h]

While a remix, it is also commentary on the work itself.

[illuminate]

If that was the case, RiffTrax would be in the clear for releasing all their voiceovers with the original movies :)

[gte910h]

Rifftrax is commercial, this is not

Rifftrax is additive, not transformitive

The person designated by the federal government to recommend who is exempt from DMCA restrictions recommended this work by name as an example of a work that would be hurt by not having exemptions to Decryption prohibitions. They considered it a valuable documentary.

>“Based on the video evidence presented, the Register is able to conclude that diminished quality likely would impair the criticism and comment contained in noncommercial videos. For example, the Register is able to perceive that Buffy vs Edward and other noncommercial videos would suffer significantly because of blurring and the loss of detail in characters’ expression and sense of depth.” -Recommendation of the Register of Copyrights, October 2012 (Page 133) Maria Pellante

[analog]

What's wrong with plain old writing? No reason to use any of the work at all imo. Video editing takes an insane amount of time in my experience.

[ecspike]

Different mediums touch people in different ways. It was a labor of love to produce the work no doubt.

[analog]

Well maybe, but I don't see why that gives the author the right to use someone else's work.

[chc]

AFAIK transcribing the movie could also be copyright infringement. You're effectively reproducing a portion of their work either way -- one in text form, the other in video form. Fortunately for critics, both are widely held to be fair use if done purely for the purpose of commentary and not done excessively.

[analog]

Quote and use screengrabs or short clips sure. 100% of your 'commentary' is composed of the original material, questionable imo.

[damncabbage]

I think Lionsgate is wrong in this case (although I'm not wholly sure, because using their source material for ~30% of the video is pretty substantial in my view) ...

Please see http://news.ycombinator.com/item?id=5033525 above.

[anigbrowl]

I read that, and am still not fully convinced; the Register's comment was normative rather than descriptive, and while I think that's how things should be in law you have to deal with things as they are.