Ed Driscoll

Warner Pulls the Plug on 'We Con the World'

Caroline Glick notes that Warner has pulled the plug on the YouTube version of “We Con the World”, the hilarious Live Aid-style parody of the Orwellian-named Gaza Aid flotilla at the start of the month. Note who was involved:

As Israel went offline for the Jewish sabbath, YouTube removed most versions of Latma’s hit parody song We Con the World. If you try to access the song on YouTube you receive the notification:

This video is no longer available due to a copyright claim by Warner/ Chappell Music, Inc. .

Copyright experts we advised with before posting the song told us in no uncertain terms that we were within our rights to use the song because we did so in accordance with the Fair Use Doctrine. The Fair Use Doctrine, copied and pasted below from the US Copyright Office stipulates that it is legal and permissible to use copyrighted material under the fair use doctrine for purposes of parody.

Copyright attorneys also warned us that given our clearly lawful use of the song We are the World, if anyone wished to silence our voices, they wouldn’t target us. Instead they would target YouTube. It is YouTube’s standard practice to remove any material that they receive even the flimsiest threat for because the company wishes to avoid all litigation.

Ed Morrissey, who ported the video over to the conservative-friendly Eyeblast video aggregator adds:

As Glick notes, it’s not the first time that YouTube has come down against the Israeli side in its editorial decisions.  In 2008, the service removed several IDF videos of their actions in Gaza when Israel attempted to bypass what it sees as a hostile global media.  After an outcry, YouTube restored the videos but labeled them as potentially “inappropriate.”

Glick also points out that the “We Con the World” video squarely falls into the realm of parody.  That qualifies it for the “fair use” exemption under copyright law.  Warner /Chappelle can make all the claims they want, but they would lose in court.  YouTube wants to avoid paying for a court appearance, but it doesn’t speak well of a New Media outlet that exists to support content producers that they cave to outside pressure so easily — if that is indeed what happened, and if they weren’t just looking for an excuse to eject Latma’s content from the beginning.

It’s YouTube’s site, and they can do what they want with it.  They are no more a public utility than is Hot Air, and subscribers have to deal with their editorial decisions.  Content producers may want to start looking for alternatives to YouTube, however, as they can also control where and how their content gets published.

Glick notes that the video was pulled by Warner/ Chappell Music, Inc.  The blogger who made the exceptional “Burning Down the House” video, which pointed the blame for the financial crisis of the fall of 2008 squarely on government-controlled Fannie Mae and Freddie Mac, and the Clinton-era Community Reinvestment Act also had his video pulled by a Warner-related entity, until he replaced the music with generic backing tracks:

4. Your video “Burning Down the House” (v.1) had nearly 1 million views before it was pulled for a copyright violation by Time Warner. In version 3, you take on Time Warner directly noting that they have supported Barack Obama with hundreds of thousands of dollars. You also claim First Amendment protection under the Fair Use Act. Can you explain this a bit more for our readers?

I think all told we are approaching 2 million views on this video in it’s various formats and locations. For a 10+ minute video it honestly shocks me. YouTube registered around 1.2M views (my account showed a higher count before they downed it). Subsequent postings have generated nearly another 500,000 views on YouTube. It has also found it’s way to just about every other video site. One can only guess, but I suspect that is at least several hundred thousand views as well. It still has a month to keep going. We need to keep it going until election day.

With regard to Time-Warner, I think there are 2 areas that upset me. Number one, is the selectivity in prosecution. Every piece of music that I used was available on YouTube in some format, generally music videos, posted by individuals. I actually obtained the music directly from those sources on YouTube, so the music was already there and had been there for quite some time. It simply did not seem to bother them until this.

However, once I used the music in a video expressing political views it becomes a problem for them. This is, of course, ironic in the sense that this is exactly the type of copyright use that is allowable under the Fair Use Doctrine. Many do not know about this element of copyright law.

The Copyright Act (title 17, U. S. Code) addresses this. Section 107 contains a list of purposes for which the reproduction of a particular work might be considered “fair,” such as criticism, comment, news reporting, teaching, scholarship, and research.

So longs as my use is not of a commercial nature, seeks to educate, and does not materially diminish the value of the copyrighted work (I bet iTunes downloads for Dire Straits are up this week) then it qualifies as “Fair” use.

Any first year law student knows this. My belief is that this was selective, and perhaps unlawful, prosecution of their copyright claim, given that this clearly meets the Fair Use standard set out in Federal Statutes. If anything, this promoted some pretty good music that people might be inclined to go buy. Then you have to question motive.

This is one of those cases where you really do not have to be a lawyer to see through this. Their pattern of political contributions makes it clear why they acted so swiftly and with such little regard for the Fair Use doctrine. Their intent was probably to disrupt my efforts, which they did, but only temporarily. I think it has enraged people to action in a way that is counterproductive for them. The original video is still available on numerous other sites, many of whom are more thoughtful in executing copyright claims than YouTube.

Warner Brothers of course, are the second half of the business entity Time-Warner, which also owns as part of its conglomeration of businesses CNN. In 2009, CNN tried to claim a copyright violation over the video shot by an individual of the Tea Partiers grilling then CNN “reporter” Susan Roesgen, until the guys at Founding Bloggers fought for their clip to be restored at YouTube.

And that’s what a lot of this is all about: by claiming copyright violations real or imagined, Warners and other entities can get clips pulled from the Internet’s largest host of videos for several weeks or months. These videos frequently wind up on smaller sites of course (such as the aforementioned Eyeblast), and those who initiate claims against them often lose their battles, if the video makers are prepared to fight back. But by then, much of the news value of these sorts of clips has dissipated.

So that’s at least three conservative clips pulled by Time-Warner-related entities. As a certain A. Goldfinger once said, “Mr. Bond, they have a saying in Chicago: ‘Once is happenstance. Twice is coincidence. The third time it’s enemy action.”

Update: Welcome Insta-readers; in an update to the Professor’s post, he notes that Paypal has cut off, or is threatening to cut off the tip jar on Pamela Geller’s popular Atlas Shrugs blog. To paraphrase Pam’s headline, is truth the new hate speech?

Late Update (6/15/10): Welcome Belmont Club readers; and as Stacy McCain notes, PayPal eventually came to their senses:

A PayPal excecutive called Pamela Geller to explain that it had all been a big misunderstanding — and Pamela then issued her own press release.