The following is an op-ed piece I've written in reference to the murky copyright laws and how they apply to online videos. I will have more on this in the future as many people have been affected by this situation.





There is a new type of criminal on the loose. They are in every state, in every town, most likely one is in your house and chances are good that it is you.

No I am not talking about the people who download thousands of songs and make CDs for their friends and get paid. And I'm not talking about the people who take something that isn't theirs and try to pass it off as their own. I'm talking about the people who go to baseball games and make the mistake of posting a cell phone video of themselves cheering for their favorite player while a copyrighted song plays on the loudspeaker. Even though the rights to play the songs at 30,000 seat stadiums had been purchased, if any slight portion of them are heard on the video, it will be removed for copyright infringement. You also have parents who post videos of their kids having a birthday party and put in a song they happen to like. Does getting 5,000 views of your children getting new bikes after singing "Happy Birthday To You" (which just happens to be copyrighted) really take anything away from the original artist? I'm not sure but they too are criminals for infringement. And perhaps most devious of all, are the deployed military personnel who make music videos documenting their experiences overseas. Apparently we are all better off not being able to see the current conflicts through their eyes if it protects a copyrighted song. 

The role of a record company has been steadily changing over the past few decades and those changes affect how everyone does business. The era of making enough money off a lone single or album release is no longer the case for artists (in fact it was almost never the case for most artists, but that's a different story). With the increased difficulty in traditional sales, things have become difficult for some larger record labels. And when things become difficult and no solution is visible, sometimes the reaction is swift, illogical and ultimately damaging to all parties involved. The reaction for some labels is to tag, remove and threaten anybody who creates and posts a video that even slightly borders on infringement.

The problem with the approach of these certain record labels is that instead of going about it the proper way and taking each case to court, they have taken to trolling websites and removing videos for copyright infringement without a valid appeal process. One of the popular video hosting sites involved in this mess will give you an opportunity to appeal the decision if you feel that the video is not infringement. However valid or intelligent your reasoning, you will most likely be sent an automated letter stating that someone somewhere has determined that your reasoning is flawed and the video is not allowed to be reposted. The Digital Millennium Copyright Act clearly states in Section 512 [(g)(2)(C)] that for any accused work where the creator serves a counter-notice and if there is no court order against said creator, the work must be returned to its original status within 14 days. It seems as though the prospect of legal fees for thousands of individual cases is too much for the accusers to contemplate. All this without any actual proof of how it violates copyright law other than their word is more expensive, therefore more correct than ours. Flag first and don’t ask questions later.

For the record, Copyright Law does provide for Fair Use, unfortunately, the accusers would rather thumb their nose at this provision while the video hosting site throws up their hands and leaves their users to the wolves. Fair Use is not a cut and dry assignment but a four step process by which both parties have to prove or disprove:
1. The purpose and character of the use (was the derivative work for profit? did it add anything substantial to the original work?)
2. The Nature of the copyrighted work (facts and information are less sensitive to infringement than art)
3. The amount of copyrighted work used in relation to the new work
4. The effect upon the potential market for the copyrighted work.

The more of these factors can be validly included in your argument, the better. We also have to look at intent of law. Reposting a copyrighted song or giving copies to your friends is not going to be able to use Fair Use as a defense. However a video of you having a conversation at a coffeeshop where the song is on the radio in the background is most certainly fair use. The topic was not the song, the attention should have been on the conversation and the music was unavoidable in that location. A jury may say that the accused party could have went outside but chances are someone would have driven by with a car stereo blasting copyrighted music, or the camera would have caught a logo on a billboard and we'd be back to square one. In this era of extremely easy video capture and sharing and a media saturated world, there needs to be a big dose of common sense on accusations of infringement. There is a distinction after all between social networking in public and profiteering.

Perhaps these companies own too much and like a child in the "Mine!" phase of development they wish to grab everything that looks inviting. But it’s easy to complain and I'm more interested in getting back to creating both original and derivative works. What we all need are solutions. To the lawyers who work for these media conglomerates:

Lead the way to the future of rights management and create a contract that gives individuals who legally purchased music to make not-for-profit videos using said music. Create a program where people who use a licensed song in their online video can either have overlay ads or pay a micro-royalty fee. Even a dollar times 50,000 people (an extremely low figure given the number of video creators online today) is not an insignificant amount, especially for what amounts to free advertising. Just because we aren't getting rich off our videos doesn't mean you can't.

I'm sure there are other ideas out there that are probably even more advantageous. But please be aware that we are not going to stop creating. A whole new generation of directors, producers, actors, musicians and the like could be discovered if the emphasis was put on the art instead of who owns what percent of what. The manpower assembled to rat out videos could easily be put to task finding new talent. But what do I know? I didn't go to school for how to convert 20th century companies with failing business models into 21st century industry leaders.

I sure hope someone did.