Sony’s first class DMCA foulup and what it says about fair use in the modern era

TechDirt recently published an article about a Digital Millenium Copyright Act (DMCA) takedown of, oddly enough, a Harvard law professor’s lecture on copyright. That in itself is ironic enough.

What triggered the takedown were clips of different songs, used in the discussion of copyright. This, under copyright law, is called “fair use” and is not considered infringement. And this is where Sony Music Entertainment has screwed up.

Part of the blame has to go to Google (or would it technically be Alphabet now?), who owns YouTube, and who has decided to deploy an automatic music fingerprinting system allowing draconian enforcement of copyrights–and sometimes squashing fair use, possibly on purpose. This quote from the original story is quite telling:

In fact, considering how frequently we hear the RIAA and other copyright system supporters (especially within the recording industry) arguing that what the world really needs is better education on copyright issues so that the public better understands it, it seems particularly stupid to issue a takedown over a free lecture explaining music copyright. But, of course, no one ever suggested that the recording industry is particularly intelligent in how it goes about fighting its peculiar war.

The RIAA has gotten at least one thing right: they have quit suing music listeners for file sharing which infringes copyrights. Unfortunately the MPAA and other industry organizations have not followed suit. (Or maybe I should say, have not followed the distinct lack thereof.)

I, personally, believe the DMCA and other copyright-related laws which were passed during the rise of the Internet’s prominence were not strictly necessary. I despise the tactic of suggestive law names and acronyms which make implied statements subject to debate, such as the horribly named No Electronic Theft (NET) Act, named years before Nina Paley made her famous cartoon as featured on Especially given that such laws are, by their nature, anti-consumer and, ironically, seem to do the most damage to those who obey them.

Case in point: I want to include a 15-second clip from a movie, say, Ghostbusters (1984). Let’s say I have this movie on DVD. Now, DVD has been proven to be trivially crackable, due to restrictions in key size in effect at the time of the format’s introduction. However, the DMCA gives any technology restricting copying the force of law, no matter how effective, and has no fair use exemption. Worse, the anti-circumvention portion of the DMCA has criminal penalties. So despite the fact I could easily copy that 15-second clip for fair use purposes, it’s a violation of the DMCA to do so.

Were I to try to make that copy honestly, using, say, a USB analog video capture device and a DVD player, the USB analog video capture device probably would not let me, either giving a distorted picture, a blank picture, or possibly even shutting down completely. The same would apply if I were to use licensed, legal DVD playback software; the publishers of such software are required to play into Hollywood’s hands and restrict copying the same as a physical DVD player would.

Getting back to the case at hand, were Sony to use a copy-restriction technology on an album, our Harvard law professor could find himself facing criminal charges were he to want to make fair use of it in the same manner. If all this seems Kafkaesque or Orwellian to you, you’re not alone.

I suppose the only saving grace in this is that the FBI honestly has better things to do than prosecute every single violation of the DMCA out there. It doesn’t change the fact this is a dumb law that needs to be overhauled. There need to be real, decisive penalties for those who recklessly or knowingly infringe upon fair use, and any new copyright-related law going forward needs to acknowledge and make a blanket exception for any and all fair use–not leave it up to the Librarian of Congress to make the very few and narrow exceptions.

Growing up in school, I (and my classmates) thought it was outrageous that (based on the teachings of the time) photocopiers in the USSR were rare and locked down against unauthorized access. Three decades later, we’re dangerously close to having the modern-day equivalent of that across the world (not just in the USA).

Copyright, fair use, and officiating in professional sports

This was originally about an article about an NFL officiating blunder on I had the link saved as a draft with the idea of wrapping up the article as soon as I could watch the video.

However, today, I went to watch the video. I instead got a black screen with “This video is no longer available due to a copyright claim from NFL Properties, LLC.”

Clearly, the use of a short video clip of part of an NFL game to illustrate a point is fair use, at least in spirit if not actually in letter. My comment (still pending approval at the moment) left on implies that the real reason the NFL told YouTube to take it down was the fact that it made their officials look bad, and the number of other NFL clips that have been allowed to remain on YouTube tends to back that up. Shame on you, NFL.

I still haven’t gotten a chance to actually see the video that the article is about. If anyone has a copy, please let me know in the comments. I do look forward to writing the article I originally planned to write.