YouTube, copyright and DCI

[Stu]

However, right now all they have is high quality video with no actual corps audio, as nobody can afford sync rights for them. Watched an ad for the Big Loud Live shows in the last few years?

I get that it's not a bed of DCI's making, so I'm not blaming them, but if you'll allow me to whine for a moment, this is a pretty ###### bed to be in.

Mike

But let us be clear here: The 'bed' (aka copyright ownership) is not the property of DCI nor the Corps but of the property of the publishers who own the 'bed'. DCI and the Corps ask permission for the privilege to be in that bed, and the rightful property owners can tell the corps and DCI that they can use or not use that property, as well as require any fees to be paid by DCI and the Corps for that use.

[jjeffeory]

As Jeff Ream is always happy to point out, DCI ‘is’ the corps. As for how rehearsal videos which are uploaded on YouTube should be addressed, please read my responses to Brasso in postings # 10 and #14 as well as the response by N.E. Brigand in postings #12 and #13.

Ok, I'm being lazy and only went back to re-read posts #14 and #13.

I'm not ready to completely accept that position until I have more information.

If someone happens to be out in a public area and records something, I'm not sure not sure about those theories... If someone is recording in a closed practice, maybe I agree. I feel they should respect the wishes of the corps, but practices are not DCI events. ...and yes, we've all heard the DCI 'is' the corps mantra when it suits the argument. DCI is the corps ( plural), but not the corps (singular). As far as the comment Brasso made about losing the right because there is no admission charge; I'm not sure about that, but if there are no damages cause by the "infringement", courts might not have any penalties either... Loss revenue at the local show? Nah, the stands are full. That's what DCI controls. The original copyright holder may want to step in and try to claim some damages or something, but why should DCI be policing works that they do not hold the rights to AND aren't performed as part of their events?

How about if a corps is rehearsing outside at a HS stadium that backs up to a neighborhood full of houses, and a person living in a house that is adjacent to the practice area goes into their backyard and records what they hear and see then posts that to youtube? They could argue that the racket is bothering them and is posting the noise as evidence. Something along those lines. What happens with that? There are countless places where this scenario is plausible.

I'm not an attorney, but I live with one, and I asked about this issue. The response was that arguments can be made about pretty much anything.

The issue of IP can be fought as long as there is money to litigate by both sides.

Bottom line is who wants the hassles of litigation? So the best policy for an organization is usually taking the path of least resistance - ie no litigation with rights holders. This means that DCI, and maybe some people on this board, feels that they need to police the interwebs so that they "avoid any problems" with the rights holders. The rights holders are probably very happy about that too, as it's less work for them. The problem is "the policing" is the job of the right's holder. It's not the job of one of the many right's licensees, except for possibly where the licensees controls the venue. There they can be nice and keep the right's holder happy. Other places? Nah.... It's not their business.

I know many people on here are posting from the position of protecting the "copyright holder", which I agree with the sentiment of doing that, but some of the Intellectual Property stuff has gotten ridiculously out of hand, imho. It's not just limited to copyright and DCI, it's everywhere these days, especially where there's the potential for lots of money to be made.

Take Monsanto... They've patented many of their seeds. They have lots of money. They've successfully sued some farmers who used these seeds in a way they didn't like. ( Bowman vs. Monsanto)

"Indiana farmer Vernon Bowman, as other farmers did, planted two soybean crops a year [...using an age old practice in agriculture].

For the first crop, he would purchase Roundup Ready seeds from an authorized reseller. For the second crop, he went to a grain elevator -- an agricultural middleman that the local farmers sold to -- and purchased "commodity soybeans" intended for animal or human food use.

However, he then planted that seed for his second crop. Because most of them came from farms that also grew Monsanto varieties, Bowman knew he would effectively have Roundup Ready seed without paying Monsanto's price. Bowman then saved seed and replanted it for the second crop the next year.

After harvesting eight crops this way, Monsanto found out and sued Bowman. Bowman's lawyers tried a defense called patent exhaustion. Under U.S. patent law, once someone buys a patented product, they can do with it as they want without paying the patent holder again. This is similar to copyright law under which a consumer can buy a paper book, read it and then sell the used volume without owing anything to the publisher. A federal district court rejected the argument and awarded damages of $84,456 to Monsanto. On Bowman's appeal, a court affirmed the original judgment. The pivotal point is that Monsanto's seed is an example of "self-replicating technologies." The justices found that Bowman was effectively producing more product -- like buying a book and then printing new copies of the text -- rather than making use of one purchased product."

...and an outrageous example of Monsanto v Schmeiser in Canada, where Percy Schmeiser, who discovered that growing on his farm in 1997 was Roundup resistant. He had initially discovered that some canola growing by a roadside along one of his fields was Roundup resistant when he was killing weeds along the road; this led him to spray a three- to four‑acre section of his adjacent field and 60% of the canola survived. Schmeiser harvested the seed from the surviving, Roundup resistant plants, and planted the seed in 1998. Monsanto sued Schmeiser for patent infringement for the 1998 planting. Schmeiser claimed that because the 1997 plants grew from seed that was pollinated with pollen blown into his field from neighboring fields, he owned the harvest and was entitled to do with it whatever he wished, including saving the seeds from the 1997 harvest and planting them in 1998. The initial Canadian Federal Court rejected Schmeiser's defense and held for Monsanto, finding that in 1998 Schmeiser had intentionally planted the seeds he had harvested from the wind-seeded crops in 1997, and so patent infringement had indeed occurred. Schmeiser appealed and lost again.

Schmeiser appealed to the Canadian Supreme Court, which took the case and held for Monsanto by a 5‑4 vote in late May 2004. Schmeiser won a partial victory, as the Supreme Court reversed on damages, finding that because Schmeiser did not gain any profit from the infringement, he did not owe Monsanto any damages nor did he have to pay Monsanto's substantial legal bills. The case caused Monsanto's enforcement tactics to be highlighted in the media over the years it took to play out.

Anyway, I just find this whole topic a little bizarre in how there's not a ton of critical thinking, but there's a ton of fear that is shaping the response.

Bottom line though, is how much money does one organization want to spend being on the wrong side of litigation. DCI is obviously doing what they believe is the easiest for them. When the little guy tries to fight Goliath, they usually end up losing as in the examples above. Then again, if there are no damages, then I really wouldn't call the expense of litigation being a win.

Interesting topic though...

[Stu]

Anyway, I just find this whole topic a little bizarre in how there's not a ton of critical thinking, but there's a ton of fear that is shaping the response....

Normally I do not react this way because it may be taken as haughty; but since you question the critical thinking process which has transpired in this thread…

I am a Composer and a member of ASCAP; that is part of what I do within the career of owning a music business. I have spent the majority of my adult life in close contact with Copyright and Contract Attorneys; I have the US Copyright Law website as well as the US Constitution website bookmarked and refer to them pretty much every day. So, here it is presented using critical thinking reasoning without any fear:

Unless it is in Public Domain music is owned by Copyright Holders; this includes owning all publishing, arranging, sync, mechanical, and performing Rights. On occasion the Copyright Holder may allow someone a short term permission to arrange, perform, record, or upload a video of that music to YouTube; but that is a Privilege presented by the Copyright Holder to a specific person/group for a specific reason. Apart from some very limited situations (such as specific educational exemptions that allows use of small portions of the material for education) anyone, anyone at all, who violates that process is engaging in the act of stealing property. There is no equivocation on the matter concerning so-called open rehearsals, supposed noise pollution, no money changing hands, or any other situation; if a person does not have permission from the rightful owner of the music to video record and upload that video to the internet that person is engaging in an illegal activity; period.

[jjeffeory]

Normally I do not react this way because it may be taken as haughty; but since you question the critical thinking process which has transpired in this thread…

I am a Composer and a member of ASCAP; that is part of what I do within the career of owning a music business. I have spent the majority of my adult life in close contact with Copyright and Contract Attorneys; I have the US Copyright Law website as well as the US Constitution website bookmarked and refer to them pretty much every day. So, here it is presented using critical thinking reasoning without any fear:

Unless it is in Public Domain music is owned by Copyright Holders; this includes owning all publishing, arranging, sync, mechanical, and performing Rights. On occasion the Copyright Holder may allow someone a short term permission to arrange, perform, record, or upload a video of that music to YouTube; but that is a Privilege presented by the Copyright Holder to a specific person/group for a specific reason. Apart from some very limited situations (such as specific educational exemptions that allows use of small portions of the material for education) anyone, anyone at all, who violates that process is engaging in the act of stealing property. There is no equivocation on the matter concerning so-called open rehearsals, supposed noise pollution, no money changing hands, or any other situation; if a person does not have permission from the rightful owner of the music to video record and upload that video to the internet that person is engaging in an illegal activity; period.

Which, supports what I said: It's the Copyright Holder's job to enforce copyright, NOT DCI. All DCI has to do is ensure that THEY are following their licenses. I'm not sure WHAT I wrote disagrees with what you wrote here, but hey, I know I've been away for a while. I didn't disagree with anything you said really. I wasn't talking about you specifically, Stu. My only beef is that DCI isn't the copyright police. They have NO right to try and do take downs because of any particular music that THEY don't have the rights to... Each corps could copyright their specific performance in theory.

Your response was an example of talking past me and only discussing part of a post instead of addressing my post. I'm not just looking at our specific problems, I'm also trying to discuss IP in general. Also, I don't get why you'd write "There is no equivocation on the matter concerning so-called open rehearsals, supposed noise pollution, no money changing hands, or any other situation; if a person does not have permission from the rightful owner of the music to video record and upload that video to the internet that person is engaging in an illegal activity; period."

Which has NOTHING to do with WHO should be trying to enforce their copyright...

Sorry I got your undies out of sorts. Guess it's my welcome back to DCP.

Edited May 5, 2016 by jjeffeory

[Stu]

Sorry I got your undies out of sorts. Guess it's my welcome back to DCP.

While the 'seed' patent issues were an interesting read, and food (pun intended, sorry could not resist) for thought, the rest of the info you presented had already been addressed in previous postings. But what sort of got under my skin were two of your opening statements and another closing statement that surrounded the rest of your extended discourse. They were, and I quote: “I'm being lazy and only went back to re-read posts #14 and #13” ; “I'm not ready to completely accept that position until I have more information” ; and “I just find this whole topic a little bizarre in how there's not a ton of critical thinking” . So in my response I was just... a) simplifying the subject at hand into a synopsis due to your admitted laziness by... b) presenting the factual information, not fear, not opinion, but factual information in a.... c) critical thinking manner showing that as a Composer who is a member of ASCAP I may actually know what I am defending as to Copyright Infringement issues. And yep; welcome back to DCP I just resurfaced a few days ago, and I have no idea why!!!

Edited May 5, 2016 by Stu

[N.E. Brigand]

But let us be clear here: The 'bed' (aka copyright ownership) is not the property of DCI nor the Corps but of the property of the publishers who own the 'bed'. DCI and the Corps ask permission for the privilege to be in that bed, and the rightful property owners can tell the corps and DCI that they can use or not use that property, as well as require any fees to be paid by DCI and the Corps for that use.

Well, you changed the meaning of MikeN's metaphor, in which the "bed" was this entire situation. The copyright ownership is only, say, the sheets.

[N.E. Brigand]

If someone happens to be out in a public area and records something, I'm not sure not sure about those theories... If someone is recording in a closed practice, maybe I agree. I feel they should respect the wishes of the corps, but practices are not DCI events. ...and yes, we've all heard the DCI 'is' the corps mantra when it suits the argument. DCI is the corps ( plural), but not the corps (singular). As far as the comment Brasso made about losing the right because there is no admission charge; I'm not sure about that, but if there are no damages cause by the "infringement", courts might not have any penalties either... Loss revenue at the local show? Nah, the stands are full. That's what DCI controls. The original copyright holder may want to step in and try to claim some damages or something, but why should DCI be policing works that they do not hold the rights to AND aren't performed as part of their events?

How about if a corps is rehearsing outside at a HS stadium that backs up to a neighborhood full of houses, and a person living in a house that is adjacent to the practice area goes into their backyard and records what they hear and see then posts that to youtube? They could argue that the racket is bothering them and is posting the noise as evidence. Something along those lines. What happens with that? There are countless places where this scenario is plausible.

Now this is actually quite interesting. I am inclined to agree with you that if I am able to videorecord a performance from my property, or from a public location, then I am free to post it, or even to sell it. There was a case here in Cleveland where a photographer took a picture of the Rock & Roll Hall of Fame from a public sidewalk and sold it as a print. The RRHOF sued, claming they owned the unique design of their building, but they lost. Then again, a musical performance is not an architectural design.

[Stu]

Which, supports what I said: It's the Copyright Holder's job to enforce copyright, NOT DCI. All DCI has to do is ensure that THEY are following their licenses. I'm not sure WHAT I wrote disagrees with what you wrote here, but hey, I know I've been away for a while. I didn't disagree with anything you said really. I wasn't talking about you specifically, Stu. My only beef is that DCI isn't the copyright police. They have NO right to try and do take downs because of any particular music that THEY don't have the rights to... Each corps could copyright their specific performance in theory.

Your response was an example of talking past me and only discussing part of a post instead of addressing my post. I'm not just looking at our specific problems, I'm also trying to discuss IP in general. Also, I don't get why you'd write "There is no equivocation on the matter concerning so-called open rehearsals, supposed noise pollution, no money changing hands, or any other situation; if a person does not have permission from the rightful owner of the music to video record and upload that video to the internet that person is engaging in an illegal activity; period."

Which has NOTHING to do with WHO should be trying to enforce their copyright...

This is a re-statement of what I previously posted that addresses your issues here concerning why DCI and the Corps should police Copyright Infringement issues on YouTube: (Corps cannot Copyright anything unless they are the original creators of the music in use. Corps have a Privilege, not a Right, to use the music which is owned by the Copyright Holder; and since they were granted that Privilege they need to take it upon themselves to help honor that Privilege by protecting what the Copyright Owner has placed into their trust. Moreover, If Corps do not engage in their own policing of non-authorized videoing/posting they are likely to have a hard time securing future arranging permissions granted from Copyright Holders. And if DCI did not stay on top of policing non-authorized videoing/posting they would also likely lose future sync permissions granted from Copyright Holders.

[Stu]

Well, you changed the meaning of MikeN's metaphor, in which the "bed" was this entire situation. The copyright ownership is only, say, the sheets.

The name of the thread is the bed, "YouTube, Copyright, and DCI". Copyright is not the sheets, it is actually the frame and mattress within the metaphor; DCI is the coverings and pillows that are allowed to be on that frame/mattress, and the abuse of YouTube by people who have no Right or Privilege to be in the bed is what gets the bed all messed up.

[jjeffeory]

While the 'seed' patent issues were an interesting read, and food (pun intended, sorry could not resist) for thought, the rest of the info you presented had already been addressed in previous postings. But what sort of got under my skin were two of your opening statements and another closing statement that surrounded the rest of your extended discourse. They were, and I quote: “I'm being lazy and only went back to re-read posts #14 and #13” ; “I'm not ready to completely accept that position until I have more information” ; and “I just find this whole topic a little bizarre in how there's not a ton of critical thinking” . So in my response I was just... a) simplifying the subject at hand into a synopsis due to your admitted laziness by... b) presenting the factual information, not fear, not opinion, but factual information in a.... c) critical thinking manner showing that as a Composer who is a member of ASCAP I may actually know what I am defending as to Copyright Infringement issues. And yep; welcome back to DCP I just resurfaced a few days ago, and I have no idea why!!!

Well, I admire that you're a member of ASCAP and a composer! Hope I get to hear something you wrote some day.

You keep mentioning your "skin in the game". Here's mine: Everyone in my household either is an attorney, or works at

a IP law firm. I'm around the topics of IP and law all the time, so maybe that's why I reacted to what I read the way I did.

That's also why I look at it from the litigation side of things. It is fascinating me why non right's holders are so worried enforcing the rights of others.

As I've stated, I didn't disagree with anything you said about infringement.

I just question the focus of the topic on DCP, where most of corps aren't Rights Holders; they're just authorized to do some of the 6 exclusive rights granted to copyright owners.

Really all I'm "trying" to do is contribute to the discussion and look at things in a different way, because despite what people think, this discussion is about more than those 6 exclusive rights

Thanks for responding .

I barely have time to read current posts, let alone sit around and analyse previous pages; I'm just being honest about what I've read.

I come on here to try and have fun and relax. If I missed something important, then I guess I can go back, but I've read "DCI is the corps", by Jeff Ream a bunch of times.

I've heard the announcements at shows, "in order to protect the copyright owners..."

I always thought that was nice of DCI to do that, but the truth is they're doing it to "try" and protect themselves.

I just wanted to be different and talk about the other stuff for a minute. I hope I didn't offend.

...and Stu, come on back! After a rough Fall, Winter, and Spring, I'm gearing up for the season on DCP.

Edited May 5, 2016 by jjeffeory