On June 16, 2016, the Second Circuit Court of Appeals released a truly horrific opinion in the case of Capitol Records v. Vimeo. 1
The case involved the Plaintiffs, all record companies with ownership of pre-1972 sound recordings, which are not governed by Federal law but have been ruled as having performance rights in California and New York. 2 Vimeo, as Jonathan Bailey over at Plagiarism Today quipped is best known as “not You Tube,” 3 makes performances of these sound recordings by allowing users to upload videos containing these sound recordings. Not only does Vimeo make performances of these sound recordings, but distributes copies of them by allowing viewers to download the videos and copy them for free. 4
If I might steal a page from the Electronic Frontier Foundation, the decision is “dangerous” in every sense of the word. It threatens to undo the clear intention of Congress by making the most basic error that a Court can make: ignoring the “plain meaning” of a statute.
In sum, the Court:
- Ruled that even though “Pre-1972 recordings have never been covered by the federal copyright” 5 they nevertheless are covered by federal copyright for the purposes of notice and takedown.
- Ruled the “safe harbor” provisions of section 512 apply to pre-1972 sound recordings, even though section 301 clearly says they cannot.
- Ignored the contrary opinion of the Copyright Office that said safe harbor did not apply to pre-1972 sound recordings.
- Called the notice and takedown system “an augmentation of rights of copyright owners, 6 but when challenged on this position by an amicus curae that the system “shortchanged” copyright owners, contradicts itself and says “we have no way of knowing.” 7
- Says workers at Vimeo can’t be held responsible for knowing when something is infringing because they are not “an expert in music or the law of copyright.” 8
- Examples of Vimeo employees encouraging users to upload infringing content “cannot support a finding of…generalized encouragement of infringement.” 9
So what happened? To my reading, the Court decided the result that it wanted to achieve, then worked backward to try and muster up some reason why this was so, tossing away all logic and the plain meaning of section 301 in the process.
In the future, everyone is an expendable independent contractor trading labor value for a chance at the YouTube lottery to be replaced as soon as possible by robots. (Just like Uber and Lyft.)
YouTube is the world’s most popular music service, but it pays out the least. That’s because its owner Alphabet (aka Google) has been able to take advantage of a copyright loophole to squeeze rates down to a fraction of what Apple and Spotify pay out. The loophole allows Google to legitimately maintain what is ostensibly an illegal supply chain of uploaders: an ethically dubious option not available to other music services.
After praising YouTube for its “innovation” (what “innovation”? – ed) [BPI head Geoff] Taylor called for the safe harbour UGC loophole to be plugged and for Google and other players to commit to an ethical fair payments framework.
Also read Chris Castle, “The DMCA is Still Not an Alibi: How Google Search is Like the Ford Pinto” on MusicTechPolicy
Why settle for a festival when you can buy an entire city?
A red Ferrari with the top down swerved past on the winding dirt road, heading to what looked like a small Mars encampment. Helicopters landed on the side of the road and greeters darted across. At a farmers’ market with overflowing baskets full of raspberries, watermelons, and focaccia, I asked for a mango, and the farmer started cutting it in half for me: “That’ll be $7.”
This weekend, outside Las Vegas, a group of Burning Man veterans put on a festival called Further Future, now in its second year. Across 49 acres of Native American land over three days, with around 5,000 attendees, the event was the epitome of a new trend of so-called “transformational festivals” that are drawing technologists for what’s billed as a mix of fun and education. While tickets started at $350, many attendees opted for upgrades to fully staffed accommodation and fine dining.
Americans are freedom loving people and nothing says freedom like getting away with it.
from Long Long Time by Guy Forsyth.
The list of outsider big money special interests that fared poorly after running into local Austin resident groups with staying power and grassroots clout is long and distinguished. Even so, the radical change in Austin’s skyline bear mute witness to just how futile resistance is against determined multinationals.
Uber and Lyft are using surge pricing of political influence to run headlong into this conflict as the brogrammers pour millions into a ballot measure to rewrite local laws to their benefit and finance the brinksmanship between the commoditizer and the commoditized that we are all too accustomed to. But for once local elected officials are for the most part standing up to the well-funded outsiders. (This story is of particular interest to cities where Google has put down stakes with Google Fiber–Uber is a major investment for Google Ventures and is rumored to be the future of Google’s driverless cars.)
Trust me–at the rate these companies are going…