December 29, 2014

Sony’s Other Christmas Movie Removal

I was going to post last week so that I would have at least one post each week, but I ended up getting a little busy with my vacationing – and also, my computer crashed. I got it back up and running on Christmas Eve, and this is all real interesting, I know, but here I am – posting my Post Christmas post, though when you are reading this I will have already posted my Post Christmas post. It’s a long one, so I think it should more than make up for my absence last week that no one noticed, because no one reads this blog.

I spent a lot of the time between posts working on my Christmas Present for my family, which was to make all of our home movies available online. They are a little embarrassing, but mostly they are great. If you are a member of the family, and wish to see the home movies – or even a close family friend, just e-mail me for the password to the Christmas Present.

As I was converting all of our old home movies to digital files to upload on YouTube, I came across a home movie that I had only heard about. In fact, I was positive for years that it didn’t actually exist – but lo and behold, I found it. A video of me at about 4 years of age holding a ukulele, wearing sunglasses, and doing my best renditions of various doo-wop rock and roll songs such as: Ernie K-Doe’s Mother in Law, The Marcels’ Blue Moon, Del Shannon’s Runaway, and, seemingly the most important of all of the songs, The Tokens’ The Lion Sleeps Tonight.

Now, I should clarify what is actually in the video. I dance, I sing (not all of the right words), I pretend like I know what I’m doing with a ukulele, and my father video tapes me doing these while the songs play through the stereo system. Throughout most of the video, there’s this annoying high pitched whine that accompanies the performance, which is likely due to the age of the VHS tape, and most of the songs are not played all the way through due to the prima donna being filmed who has to keep getting different musical instruments, or simply doesn’t like the song being played (what is that guy’s problem?).

I posted this video and it was immediately met with a nice yellow warning sticker on my YouTube video manager, with text that stated, “Video blocked in some countries.” At first, I thought this was just one of those weird little things where some content can’t be viewed in Canada or the UK, but it didn’t worry me as my family members who did want to view this tape would all be in America. No worries. I made the movie unlisted, as I did with all of the home movies, and shared it with some family members as a teaser of what was to come for Christmas, but later in the day, I was told that the link was no longer working. I went to the link myself, and found text reading, “This video contains content from SME, who has blocked it in your country on copyright grounds.”

First, I wanted to know who SME was, and a quick Google Search led me to the this page – and from there I determined that Shawnee Mission East High School must be blocking my video for some unknown reason. After writing several angry e-mails to their principal, he politely informed me that they had not blocked my video, but that it was probably Sony Music Entertainment. How could this be? I know Sony was loath to pull The Interview, which hardly anyone wanted to see before North Korea started complaining, from its wide release on Christmas Day, so why would they want to pull my Christmas video, which my family had been looking forward to seeing for decades?

I know that you can’t see the video, so I’m going to painstakingly describe it and analyze it for you – bewarned:

0:00 – 1:13 – Bobby Lewis – Tossin’ & Turnin’ – Little Patrick (that’s me) comes into the room, half lip syncing, half singing the wrong words to this masterpiece of a song. I start trying to play the air guitar, and I forget, there’s a ukulele around the house that I can use, so I promptly run back behind stage (my parents’ room) to get my prop and continue my performance.

1:13 – 3:10 – Del Shannon – Runaway – Runaway is broken into two parts here, as I’m apparently too shy to come out at first, but then come out rocking the ukulele as the song cuts to the middle. I scream/yell/sing “runaway” and manage to time the words, “run run run run runaway” pretty well before starting in on my ukulele solo over the iconic Musitron solo. If yell-singing the words to this song and playing a ukulele in place of a Musitron isn’t transformative, I’m not sure what is.

3:13 – 5:26 – The Marcels – Blue Moon – This is probably the first song in the video which plays in its entirety. During the intro I scramble to find my sunglasses, put them on, and arrange my ukulele the wrong way (I play the ukulele right handed, duh) while the song plays. I regain awareness of my performance just in time to lip sync the chorus and then yell/sing over the outro.

5:27 – 5:50 The performer is getting cranky. It might be time for a nap – or some food. I complain about the song selection as my father tries to get me to perform Bobby Vee’s Take Good Care of My Baby, then The Marvelette’s Please Mr. Postman – I’m not having any of it.

5:51 – 7:08 – Ernie K. Doe – Mother-in-Law – My rendition of Mother in Law is moving. You can really hear the added value of my vocals to this one, as the only words to this song I know are “Mother in Law” and my ukulele … “playing” really focuses the audience in on this masterpiece. Unfortunately, this song is cut short, as my father wants me to perform my favorite song:

7:08 – 9:21 – The Tokens – The Lion Sleeps Tonight – This is supposedly my favorite song, as anyone who knew me as a young child and spent any meaningful amount of time with me will tell you. However, as the song comes on, I am too upset at my broken sunglasses (I just rocked a little too hard to Mother in Law, I guess) to notice. My mother graciously agrees to fix my glasses as I exclaim “uh oh” and I get distracted by some snacks that she brought in, but my the 8 minute mark of the video, I’m starting to strut my stuff once again. But what’s this? Our cat comes in the door about 20 seconds later, and I decide I need to look into that a little more, much to my mother’s dismay. She tells me to leave the cat alone as I sneakily keep performing on the ukulele and tiptoe over to my feline companion. After being told yet again to leave the cat alone, I dance a little bit more (20 seconds?) before looking to my father in dismay and tell him to, “put another song on.” I then place my ukulele on the couch and say, “put another song on, I’m bored.”

Here, the video ends. The only full song that is played all the way through is The Marcel’s Blue Moon – to which WMG (Warner Music Group) instated a copyright claim. Above is the list of all of the songs and a bit of a summary of the performance of each, and below… is a picture of all of the copyright claims YouTube populated :

Patrick Copyright PictureHopefully that is readable for you – if not, click it and it should take you to the full-size picture. Let’s take a quick look at the inaccuracies of the YouTube system which automatically took this song down. This was originally a much longer recording, with the second part being me doing a longer performance with one of my friends, but this video is clearly 9:21.

There are two copyright claims here which have absolutely no merit. Jimi Hendrix & Little Richard – Good Golly Miss Molly, which happens at 15:23 (remember the video is 9:21) and Danny & The Juniors – At the Hop – which occurs at 12:37 (video is 9:21). This particular video has always been 9:21 and was not cut back after these claims were instated, as it was the video that members of the family had been wanting to see for a long time.

The third claim which has no merit, whatsoever, is The Shadows – Apache. Note that I did not mention this song for a very good reason – it was not played. At the time in the video which it is claimed Apache is playing, it is in fact Runaway which is playing – but I guess my ukulele playing mixed with my yellsinging of “WHY!” must have made a hit on the YouTube content filter, and also note that I have disputed all of these and for most my dispute was rejected. How could WMG reject the claim that I was playing Apache by The Shadows when I clearly was not? That’s an easy one: No one at Warner looked at this claim, or took the time to review the video – and I’m sure no one at Sony or any of the other labels did, either.

After looking through a few websites wondering why (why why why why why) my video was taken down, I came across the Electronic Frontier Foundation. I found a great article on there which outlined the process of how YouTube and copyright holders take down videos through the DMCA. YouTube lets you dispute the immediate take down of the video and asks whether the video would qualify under the Fair Use Doctrine.

In evaluating whether something is a fair use, courts generally consider four factors: 1) the nature of your use; 2) the nature of the copyrighted work; 3) the amount taken from the copyrighted work; 4) the effect on the market for or value of the work. Let me start by saying that I do not have a lot of experience in dealing with intellectual property issues yet, especially as it relates to music.

I don’t really feel the need to go into the analysis too much, because the threat of a lawsuit at any point during the process seems much too high of a hurdle for me to complain about – but I will argue one prong of the fair use test, and that is the effect on the market.

Will this unlisted home movie, which I have hidden the link for behind a password wall on my blog which no one reads deprive Sony or Warner Bros. of income or undermine a new / potential market for any of these songs? No. Sony & Warner Bros. can put up ads on this video for the songs and if there was any way this video became viral, they would be able to derive revenue that way.

  • This video is non-commercial;
  • This video is NOT a substitute for the original. The musical parts of this video are nearly un-listenable (that’s definitely a word) due to the constant high pitched whine;
  • The purpose is non-commercial, as was stated in my original dispute;
  • If this were to become widespread, would it harm Sony / WB / et al? I highly doubt it. Again, the musical parts are peppered with my yell-singing, and ukulele strumming – not to mention the high pitched whine that intermittently shows its ugly head throughout the 9:21 performance.

So, should I throw up another dispute/apeal and risk being sued and fined by up to $150,000? No. And it’s ridiculous that this automated process instituted by YouTube resulted in the removal of this video, yet would likely not have done this if I had changed the pitch. I know that thousands of videos (about 69,000 hours of video) are uploaded each day and there would not be a great way to have each of these looked at by a person to analyze whether or not there’s a real copyright infringement, but this is a tad too far.

I suppose I will just have to burn a few copies of the video onto DVDs and distribute them to the family that way, but what is this? The 20th century? Who uses DVDs anymore when we’re in the age of streaming Netflix and Amazon Prime?



Stanford Copyright & Fair Use

EFF Guide to YouTube Removals

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