Cadets show to be edited

[Pete Freedman]

I don't have to have Supreme Court credentials to recognize how flimsy an argument it would be to accuse Cadets of infringing a copyright that wasn't enforced at all on YouTube.

...

the Cadets use of that audio can't reasonably be interpreting as anything other than fair when the copyright owner allows far more extensive and public use on YouTube.

I think what you are saying here is that a copyright holder cannot selectively enforce their copyright. I think they can, at least to some extent, but there may be a limit.

You may be right that it would be considered fair use. Apparently DCI does not think so, but they may be playing it conservatively. We need more info on this.

As for the discussion about specific legalities, I'd love to see a corps press the issue with an eye toward setting a precedent that serves our purpose better. Maybe have Cadets take the issue forward seeking the right to reissue the DVD with the material added back. That way nothing DCI has done will be at risk. Any ruling would only apply prospectively.

HH

Yes, this would be good, although I think it takes a long time because of appeals.

[glory]

Which rights did the Cadets not have performance, recording, selling, something else?

Which rights does a clip being shown on YouTube need for it to be leagl?

Asking cuz I don't know but to me the difference would be selling for profit as DCI does.

That's the point. DCI is following a standard that YouTube (and its posters) aren't. YouTube is rife with content that violates copyright - but only if the holder enforces it. Some do. Some don't. (DCI has.)

What DCI seeks for its video is a sync license that gives it the right to sync to the video the audio of the copyright holder. I don't know for sure, but I would surmise that a different license might be required for YouTube if only because the issue is the video entire and not just the act of syncing audio (already permissioned) with video (for which only the audio sync rights are at issue).

HH

[glory]

I think what you are saying here is that a copyright holder cannot selectively enforce their copyright. I think they can...

We're on the same wavelength. Copyright holders decide who gets permission. Where you might not be understanding me is fair use. What I'm saying is the law provides for "fair use" uses. That's an ill-defined status but surely covers the few seconds of Cadet audio. The YouTube examples help make the fair use case when you compare the measured and miniscule Cadets use against the extensive audio video already available publicly and for free. In other words, the copyright holder who allowed all that video on YouTube would have a hard time saying Cadets didn't make fair use, which is all we need.

HH

[Pete Freedman]

We're on the same wavelength. Copyright holders decide who gets permission. Where you might not be understanding me is fair use. What I'm saying is the law provides for "fair use" uses. That's an ill-defined status but surely covers the few seconds of Cadet audio. The YouTube examples help make the fair use case when you compare the measured and miniscule Cadets use against the extensive audio video already available publicly and for free. In other words, the copyright holder who allowed all that video on YouTube would have a hard time saying Cadets didn't make fair use, which is all we need.

HH

I understand what you are saying, but I don't think the judge would care about what they allow on youtube, since they undoubtedly have a fixed standard for what constitutes fair use. I agree that the use in question seems 'fair-usey', but clearly both DCI and the copyright holder disagree. So I looked up fair use on wikipedia. It says:

17 U.S.C. § 107

Notwithstanding the provisions of sections 17 U.S.C. § 106 and 17 U.S.C. § 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include:

• the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
• the nature of the copyrighted work;
• the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
• the effect of the use upon the potential market for or value of the copyrighted work.

The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.

All of which sounds pretty vague, but I wonder if maybe these youtube clips are fair use if the clear purpose is criticism & comment, while DCI and the Cadets, which are selling a product (tickets, cds, dvds, web memberships), wouldn't qualify. Just a thought. If so, this would mean that any use by a drum corps either in a paying show or for the online paying customer would not qualify as fair use. And as soon as you have to pay to see a youtube clip, the same would apply there.

Solution: Make the fan network free! (and put a comment section under each video, just to be sure)

[JimF-LowBari]

Solution: Make the fan network free!

My understanding was some rights holders (not just talking about clips) had a problem with anyone making money from their work. No idea if they thought they deserved a cut or just against it on principal.

Way I pictured it was: "Oh that's nice, some youth music group wants to play my music. Oh wait.... it's going to be sold and someone will MAKE MONEY from it... fergit it".

[Michael Boo]

...

Solution: Make the fan network free! (and put a comment section under each video, just to be sure)

Somehow, all the people that go into producing the Fan Network year-round (and especially during the summer) have to be paid for somehow. There are transportation, lodging and other expenses that have to be covered and there would still be rights that would have to be paid for down the road.

And without covering those expenses, much less would go to the corps to help keep them alive.

[OrlandoContraAlum]

I understand what you are saying, but I don't think the judge would care about what they allow on youtube, since they undoubtedly have a fixed standard for what constitutes fair use. I agree that the use in question seems 'fair-usey', but clearly both DCI and the copyright holder disagree. So I looked up fair use on wikipedia. It says:

All of which sounds pretty vague, but I wonder if maybe these youtube clips are fair use if the clear purpose is criticism & comment, while DCI and the Cadets, which are selling a product (tickets, cds, dvds, web memberships), wouldn't qualify. Just a thought. If so, this would mean that any use by a drum corps either in a paying show or for the online paying customer would not qualify as fair use. And as soon as you have to pay to see a youtube clip, the same would apply there.

Solution: Make the fan network free! (and put a comment section under each video, just to be sure)

Not a lawyer, but I remember hearing at some point that copyright holders have to be vigilant for their brands because if they don't aggressively defend them, that sets precedent that they are not all that concerned for their brand, which in turn makes it more difficult to prosecute those that infringe. In the case of the YouTube vids, that is an interesting area. I am not suggesting that DCI should go down the road of "well, they can't care too much about their brand, look how many videos are on YouTube". The only place where you could make that argument would be in court, and that's not a place where DCI wants to be.

Interesting discussion though...

[Pete Freedman]

Somehow, all the people that go into producing the Fan Network year-round (and especially during the summer) have to be paid for somehow. There are transportation, lodging and other expenses that have to be covered and there would still be rights that would have to be paid for down the road.

And without covering those expenses, much less would go to the corps to help keep them alive.

Of course, hence the smiley.

Although, I wonder if an acceptable workaround for those cases where copyright can't be obtained would be to post those videos on youtube. For example, the Madison ESOM I found on there didn't look like DCI's version, but maybe DCI could actually post that version, then put the link to it on fan network.

Or even put make that year's show by Madison and this year's show by Cadets free on fan network? (or maybe just the offending parts) If no money is made from it, maybe that would do the trick?

[glory]

Of course, hence the smiley.

Although, I wonder if an acceptable workaround for those cases where copyright can't be obtained would be to post those videos on youtube. For example, the Madison ESOM I found on there didn't look like DCI's version, but maybe DCI could actually post that version, then put the link to it on fan network.

Or even put make that year's show by Madison and this year's show by Cadets free on fan network? (or maybe just the offending parts) If no money is made from it, maybe that would do the trick?

These laws are complicated and sometimes contradictory. Commercial benefit (to either the "copier" or orginator) is one consideration. However, free distribution generally doesn't exempt you from the law. And that's partly because of the potential commercial impact on the orginator. At least that's how I understand it.

This is why YouTube, which distributes the content for free, asks posters to take down content that violates copyright. Some of them anyway.

HH

[Pete Freedman]

These laws are complicated and sometimes contradictory. Commercial benefit (to either the "copier" or orginator) is one consideration. However, free distribution generally doesn't exempt you from the law. And that's partly because of the potential commercial impact on the orginator. At least that's how I understand it.

This is why YouTube, which distributes the content for free, asks posters to take down content that violates copyright. Some of them anyway.

HH

The laws are indeed complicated and vague. Also, so much depends on legal precedents. Drum corps and DCI are unusual media sources in that they are non-profits, but selling the content. Also, they are independent organizations, listed (as I understand it) as charities rather than educational institutions for tax purposes. All of this may play into an actual court case that would set the precedent. DCI should get some good legal advice on whether they would be likely to win (maybe they have) and push it if it could change the game in our favor.

However, my point was that it sounds like free distribution may be a big factor in the way DCI and/or the rights holders are viewing it, which is what matters in the current case. And in the case of youtube, it's unlikely there would be any penalty worse than having to take it down if a complaint was lodged, so why not do it?

Come to think of it, if the rights holders know that you are going to give it away under fair use if they don't agree to a deal, that might encourages them to make a deal. (Disclaimer: I don't know what I'm talking about)