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Anime Music Videos (AMVs) are generally short video clips taken from an animation (most often a Japanese animation) and set to a song chosen by the creator of the video. Sometimes an audio track of a stand-up comic is used, or the creator will write their own parody. If you look at the case
For the young fan, the legal boundary lines are far from clear, and the incentive to even try to discern them is generally low. Must somone contribute original content for an AMV not to violate copyright law? (I am speaking about distributing the AMV, and thus the images and sounds contained, not just possessing them.) I point to a very popular and widely-shared AMV, Tainted Doughnuts. This work was put together by some talented editors who edited scenes from two distinctly different animated series together seamlessly. One anime is about a fugitive gunslinger, and the other is about bounty hunters, and both storylines take place in a future setting where Earth has become a wasteland. Though they did some extra editing so they could throw in some inside jokes (you'd have to be a fan to pick up on them) almost every frame of footage is taken from one animated series or the other, or combinations of the two (see the scene where the persuer slides over the roof of the car). The song playing in the background is native to neither series, and the lyrics, when translated, turn out to make no sense whatsoever in light of the story being told by the animation... but the song was written by somebody. Is this AMV a work of art, a triple violation of copyright law, or both?
The truth is... I'm not sure. Most of the people my age who share and distribute AMVs are even less sure than I am. If YouTube doesn't pull the video, then can we assume that we're in the clear? Or are we simply assuming that we won't be punished, but it might be not legally sound and we could have our posting priviledges stripped at any time? The young people who should be affected most by laws concernng sharing video and music often have very little reliable information to guide them. Vaguely, we are aware that court battles are being fought over digital rights management and copyright law... so that means, to us, that nobody is sure what is and is not allowed by the law. Are we to stop having our fun while we wait for the law to sort it out? Some may. This is known as the "chilling effect," and it's threat to free speech has been noted by Supreme Court Justices in opinions covering topics from libel (i.e. NY Times v. Sullivan) where eople are not forced to silence themselves in their criticism because they might have to prove their statements in court, to modern anti-SLAP laws that grant citizens the power to fight back against lawsuits that exist purely to harrass and stifle free and uninhibited debate.
The first AMV I ever saw was shown to me by my friend ________. (I'm afraid to say because I don't want to bring legal trouble upon him.) He had downloaded this video, which combined footage from a then-popular anime Dragonball Z (we were young... okay? Plot or not, it was fun to watch) with the song Kryptonite from 3 Doors Down. AMVs are often used to express some idea or feeling... they may contain biographies of a fictional character's life told through important scenes, or they may summarize an important chapter of growing up, or they may simply express sorrow, or joy. This AMV in particular expressed pure aggression. Some sound effects from the original footage were left in to superimpose over the music itself. You could hear the crackling of lightning and the crunch of footsteps before the first solemn chords of the instrumentals rolled through the speakers. The AMV contained no fabulous editing like Tainted Doughnuts... it was footage and sound... but I liked it, ______ liked it, and he saved it to his hard drive. It was worth holding onto. A few weeks ago, I checked... the video had been forcibly muted by YouTube. I see now that it has re-appeared in its full form, which is actually a little disappointing because I was prepared to show you the long stream of angry comments of people fed up with those trying to censor it. YouTube had posted a message saying the video contained a track about which there was a dispute, and so the track had to be removed.
Now click this link, and turn sound on. This "amv" is nothing more than a still frame, and a song taken directly from a soundtrack. (Go ahead and click- it's a pretty song, sung in German). It is still the combination of an image and sound... but trying to defend it as a creative work in a court of law would likely be futile because there is not no significant "added value." Where along the spectrum does illegal distribution of music begin, and fair use end? I do not feel my examples are weakened by the re-appeareance of the Kryptonite video precisely because it DID re-appear. What was "unacceptable" a couple of weeks ago is now apparently legitimate.
The song expresses a sentiment about brotherly love. If someone places a picture of their own beloved brother, killed overseas in a war, it is very possible that the results would be very stirring for anyone who knew the person... it would be speech.... ideas. As it stands now, it is thinly-veiled music theft to make the video publicly available. To make that distinction- between art and piracy- one must regulate based on content, and that is presumed unconstitutional if the government does it. Yet there is no compelling explanation for YouTube's restriction of popular videos other than that the company is seeking to avoid legal actions taken against it.
The widespread acceptance of music piracy among my generation is largely a reaction to the apparently silly, capricious, and possibly constitutionally unsound rules that are thrown before us as law one day and altered dramatically the next. Many have simply stopped caring what is technically legal and what is not- if it doesn't "hurt" anyone, then we go right ahead and do it. Video and music is now digital, and we can acquire and distribute this digital data through the internet at no cost. Whether you are receiving benefits (such as faster download time credits) from distributing or getting something for free by receiving, the obvious choice seems to be to "share" rather than "buy" as long as you can find what you are searching for. There seems to be a one-in-a-billion chance that a large, soulless recording company will try to take someone to court and make an example out of them but our generation makes use of the "it can't happen to me," philosophy so we do what we please anyway. It never seems like an ethical battle of right and wrong because everyone else is doing the same activities! Our individual contribution to whatever monetary losses the music industry is suffering seems insignificant in our perspective.
The industries have ideal systems that they are attempting to put into place. Apple, for example, wants customers to buy their computers, their ipods, their ipod accessories, and music that contains their copy-protected technology. Apple hardware uses Apple software, and if the portability of the system is restricted enough, Apple computer can still boast about the remarkably low virus rates among their system, and consumers can still feel trendy and smug about their purchases. Yet what if someone _wants_ to do something outside the system? What if they want to use a different media player on their ipod than what Apple produces, or they want to store their copy-protected music on files of a different format?
The case of Odioworks v. Apple (http://www.eff.org/cases/odioworks-v-apple) will hopefully be a good first step toward striking a better balance than what we have now. A wiki website contained a discussion by users that included exchanging ideas of how to get past Apples coding in ways that would allow Apple producst such as the i-pod to interoperate with software NOT selected by apple. Because the information on each individual ipod player is owned by the owner of the player, including software locks, the owners of apple products have a right to alter and view the data stored on their player in any way they please. Apple, perceiving a threat to their Apply-only system, demanded that discusions related to hacking the ipod, etc, be taken down. The wiki website complied under protest, and is now suing for damages, and so that the court can tell them (and their oppressors) EXACTLY where their rights, and the rights of their users, lie in this respect. It is disturbing indeed that Apple not only feels it has the legal power to keep people from performing hacks on products they have sold, but that it also has the ability to threaten people with legal action for even TALKING about how to perform such hacks!
If the courts were to, theoretically, rule that Apple in fact CAN sue people for talking about ways of exploiting their products in ways other than envisioned in Apple's money-making strategy, then that would mean the government's action is setting up a system of prior restraint, and Alexander v. the United States tells us that prior restraint is unconstitutional!
Although I am unlikely to find the time to invest in making my own amv, I would be interested in reading online discussions in which people tell how to, for example, get around the protection encryption of DVDs so that you can rip footage directly from a high-quality DVD to be used in an AMV. If speech concerning ways to defeat encyrption is ruled not to be protected under the First Amendment, I believe the topics will still emerge, but fearful websites will periodically purge them, so the quality of debate, as well as the growth of any libraries of knowledge on the subject, will be stunted.
Elsewhere in the world of fighting the "system", a landmark case, OPG v. Diebold, will be referenced for years to come in copyright law. A California court has determined that Diebold "knowingly misrepresented that online commentators, including IndyMedia and two Swarthmore college students, had infringed the company's copyrights." They sent dozens of cease-and-desist letters to ISPs hosting leaked internal documents that revealed flaws in Diebold's voting machines. Vulnerabilities in the voting machines were VERY important to public interest, and yet the company was trying to use threat of legal action to keep people from even talking about it. The Electronic Fronteir Foundation stepped in to help and have won the case. They proudly proclaim on their website the outcome.http://www.eff.org/cases/online-policy-group-v-diebold
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Outcome: In addition to creating the first caselaw applying 512(f) of the DMCA to remedy abusive copyright claims under the DMCA, Diebold subsequently agreed to pay $125,000 in damages and fees.
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Protection of confidentiality, and thus uninhibited speech, took a bit of a hit in California recently, unfortunately. In First Cash v. John Doe ( http://www.eff.org/cases/first-cash-v-john-doe ), an anonymous internet web board poster criticized a Texas-based chain of pawn shops and the company sought a subpoena to force Yahoo to reveal the identity of the poster, on the grounds that he "may have been" an employee that signed a confidentiality agreement. In Branzbeurg v. Hayes, it was was found that there is not a Constitutionally-protected privilidge that allows reporting agents to refuse subpoenas to reveal the sources of their information, yet that is not to say that states could not provide protections through legislation. In this case, it seems that California did not have an applicable law to protect the John Doe's confidentiality on its face, so the EFF, acting in the interest of the John Doe, attempted to have the subpoena request ruled a SLAPP.
The EFF failed, and the subpoena was not blocked. I feel it is terrible that all it takes is a company to say that a critic "may" have been an employee, and they can force an exception of someone else's First Amendment and Fourteenth Amendment rights- in this case Yahoo's right NOT to speak about the identity of anonymous posters.
I leave this week's post by likining my confusion of the legalities and liabilities of spreading AMV's with the famous case of Zacchini v. Scripps-Howard Broadcasting Co. The First and Fourteenth Amendments do not create Constitutional protections for those who record a performer's act and then distribute those recordings for their own profit. I admit that I have never actually "watched" many of the AMVs I search for online. If I'm in the mood to hear a particular song, I do a YouTube search for the name of the song, followed by "AMV" and I generally can expect that I'll be able to hear the song I want, and not a fan of the band singing the song themselves. I'm getting the entire performance -the entire product- through a secondhand source and for free. I may never even witness the "added value" put into making the song into an AMV. If Zacchini had gone the other way- if there WAS complete Constitutional protection, then would all AMVs be protected to be hosted by websites without fear of lawsuits? And in doing so, would copyright law be completely destroyed?
I'm not sure that the answers to these uncertainties will ever be known to the music-sharing community. Rumors have taken the place of knowledge, and you'll see people claim that they are not committing piracy because they "delete or copy the songs after three days", etc. The law may exist to give record companies the ability to punish, but as of right now it holds no power to DETER. The majority of those sharing AMVs are foggy as to their legal rights, just as those wrapped up in DRM court cases are not quite certain of the outcome. And thanks to having being in the fog for so long, it is likely that many music and amv-sharers... simply won't care what side of the law they fall on. It's not really worth the effort... because "nobody" ever gets caught.
....
http://w2.eff.org/IP/P2P/MPAA_v_ThePeople/
... we hope.
The industries have ideal systems that they are attempting to put into place. Apple, for example, wants customers to buy their computers, their ipods, their ipod accessories, and music that contains their copy-protected technology. Apple hardware uses Apple software, and if the portability of the system is restricted enough, Apple computer can still boast about the remarkably low virus rates among their system, and consumers can still feel trendy and smug about their purchases. Yet what if someone _wants_ to do something outside the system? What if they want to use a different media player on their ipod than what Apple produces, or they want to store their copy-protected music on files of a different format?
The case of Odioworks v. Apple (http://www.eff.org/cases/odioworks-v-apple) will hopefully be a good first step toward striking a better balance than what we have now. A wiki website contained a discussion by users that included exchanging ideas of how to get past Apples coding in ways that would allow Apple producst such as the i-pod to interoperate with software NOT selected by apple. Because the information on each individual ipod player is owned by the owner of the player, including software locks, the owners of apple products have a right to alter and view the data stored on their player in any way they please. Apple, perceiving a threat to their Apply-only system, demanded that discusions related to hacking the ipod, etc, be taken down. The wiki website complied under protest, and is now suing for damages, and so that the court can tell them (and their oppressors) EXACTLY where their rights, and the rights of their users, lie in this respect. It is disturbing indeed that Apple not only feels it has the legal power to keep people from performing hacks on products they have sold, but that it also has the ability to threaten people with legal action for even TALKING about how to perform such hacks!
If the courts were to, theoretically, rule that Apple in fact CAN sue people for talking about ways of exploiting their products in ways other than envisioned in Apple's money-making strategy, then that would mean the government's action is setting up a system of prior restraint, and Alexander v. the United States tells us that prior restraint is unconstitutional!
Although I am unlikely to find the time to invest in making my own amv, I would be interested in reading online discussions in which people tell how to, for example, get around the protection encryption of DVDs so that you can rip footage directly from a high-quality DVD to be used in an AMV. If speech concerning ways to defeat encyrption is ruled not to be protected under the First Amendment, I believe the topics will still emerge, but fearful websites will periodically purge them, so the quality of debate, as well as the growth of any libraries of knowledge on the subject, will be stunted.
Elsewhere in the world of fighting the "system", a landmark case, OPG v. Diebold, will be referenced for years to come in copyright law. A California court has determined that Diebold "knowingly misrepresented that online commentators, including IndyMedia and two Swarthmore college students, had infringed the company's copyrights." They sent dozens of cease-and-desist letters to ISPs hosting leaked internal documents that revealed flaws in Diebold's voting machines. Vulnerabilities in the voting machines were VERY important to public interest, and yet the company was trying to use threat of legal action to keep people from even talking about it. The Electronic Fronteir Foundation stepped in to help and have won the case. They proudly proclaim on their website the outcome.http://www.eff.org/cases/online-policy-group-v-diebold
--------------
Outcome: In addition to creating the first caselaw applying 512(f) of the DMCA to remedy abusive copyright claims under the DMCA, Diebold subsequently agreed to pay $125,000 in damages and fees.
------------
Protection of confidentiality, and thus uninhibited speech, took a bit of a hit in California recently, unfortunately. In First Cash v. John Doe ( http://www.eff.org/cases/first-cash-v-john-doe ), an anonymous internet web board poster criticized a Texas-based chain of pawn shops and the company sought a subpoena to force Yahoo to reveal the identity of the poster, on the grounds that he "may have been" an employee that signed a confidentiality agreement. In Branzbeurg v. Hayes, it was was found that there is not a Constitutionally-protected privilidge that allows reporting agents to refuse subpoenas to reveal the sources of their information, yet that is not to say that states could not provide protections through legislation. In this case, it seems that California did not have an applicable law to protect the John Doe's confidentiality on its face, so the EFF, acting in the interest of the John Doe, attempted to have the subpoena request ruled a SLAPP.
The EFF failed, and the subpoena was not blocked. I feel it is terrible that all it takes is a company to say that a critic "may" have been an employee, and they can force an exception of someone else's First Amendment and Fourteenth Amendment rights- in this case Yahoo's right NOT to speak about the identity of anonymous posters.
I leave this week's post by likining my confusion of the legalities and liabilities of spreading AMV's with the famous case of Zacchini v. Scripps-Howard Broadcasting Co. The First and Fourteenth Amendments do not create Constitutional protections for those who record a performer's act and then distribute those recordings for their own profit. I admit that I have never actually "watched" many of the AMVs I search for online. If I'm in the mood to hear a particular song, I do a YouTube search for the name of the song, followed by "AMV" and I generally can expect that I'll be able to hear the song I want, and not a fan of the band singing the song themselves. I'm getting the entire performance -the entire product- through a secondhand source and for free. I may never even witness the "added value" put into making the song into an AMV. If Zacchini had gone the other way- if there WAS complete Constitutional protection, then would all AMVs be protected to be hosted by websites without fear of lawsuits? And in doing so, would copyright law be completely destroyed?
I'm not sure that the answers to these uncertainties will ever be known to the music-sharing community. Rumors have taken the place of knowledge, and you'll see people claim that they are not committing piracy because they "delete or copy the songs after three days", etc. The law may exist to give record companies the ability to punish, but as of right now it holds no power to DETER. The majority of those sharing AMVs are foggy as to their legal rights, just as those wrapped up in DRM court cases are not quite certain of the outcome. And thanks to having being in the fog for so long, it is likely that many music and amv-sharers... simply won't care what side of the law they fall on. It's not really worth the effort... because "nobody" ever gets caught.
....
http://w2.eff.org/IP/P2P/MPAA_v_ThePeople/
... we hope.
@};-
ReplyDeleteHmmm... I can't find the edit button right now. For the record, the song about the dear brother was Bratje.... I accidentally spoke about it without referencing it immediately after talking about Kryptonite. Sorry for the confusion. Bratje was the song about brothers.
While expression by creativity and involving outside information is protected by the First Amendment (such as when the Black-Eyed Peas referenced Rosa Parks in their song in Rosa Parks v LaFace Records), copy right laws, I believe, do permit exceptions. Rosa Parks has a right to the use of her name if it is used for commercial purposes etc.
ReplyDeleteNow, Youtube videos randomly made for fun should definitely be a protected form of free speech. I have never seen an AMV that is advertising some product by its creation. Usually the clips used are from widely-known and recognized shows and so it is known by the general audience that the creator of the clip did not create the actual images. Also, many times these posters on YouTube state where the clips and song are from.
However, I have seen things pulled and many angry arguments when a new song by some artist is taken down. This does reflect commercial purposes. If people can listen to the song whenever the want before the artist intended them to, then their profits could go down promptly after releasing the song. Thanks to RealPlayer, all I have to do to have a music video saved to my hard drive is visit any youtube link and my computer automatically starts downloading. I feel slightly mischievous each time this happens because I know that artists charge for these videos on Itunes. So, for these specific cases, I would understand artists requiring YouTube to pull things when the video or song is brand new without infringing on First Amendment rights.
After a song or video has been around a while, it usually pops up guilt-free on YouTube and isn't taken down. By this point, I suppose YouTube figures the main purchases have been completed and it is no longer injuring the owner of the song/video.