Earlier this week, TorrentFreak reader ‘Homer’ wrote in to complain about problems he’d been experiencing on YouTube. On April 8, 2014, Homer uploaded a five minute clip of JFK’s famous “The President and the Press” speech, given at the Waldorf-Astoria Hotel on April 27, 1961.
When TF was alerted to the issue this week the video had received under 10 views, yet someone already had their eye on it.
“A company called Believe Digital has made what I believe to be a fraudulent copyright claim against me for [the speech] I posted on YouTube,” Homer explained. “They’ve threatened no legal action, but have merely asserted ownership for the purpose of monetizing the video via advertising.”
Believe Digital, a digital distributor for independent labels and artists, looks like a professional outfit. However, taking over the monetization rights of what should be a public domain speech and then on top refusing to respond to Homer’s dispute encouraged us to dig deeper. It would prove an interesting exercise, even though we already suspected there had been a monumental screw-up.
After Believe Digital ignored TF’s attempts to discuss the issue, we spoke with Adam Holland, a Project Coordinator at the Berkman Center for Internet and Society at Harvard University, where he works on projects including the DMCA ‘clearing house’ Chilling Effects.
“Works produced by the Federal government are public domain. So the text of the speech itself is in the public domain,” Holland told TF.
“If the federal government made a recording of the speech, then that recording is public domain. The JFK Presidential library confirms that that at least one version of the recording is still public domain.”
Drilling down into Believe Digital’s repertoire we see that they represent a pair of artists called Harley & Muscle. Their track, Open Society, features something of interest throughout most of the track.
Were Believe Digital really trying to suggest that the original JFK speech infringes their rights, or could there be another explanation?
As pointed out by Adam Holland, a government audio recording of the speech would be in the public domain, meaning that Harley & Muscle could have simply sampled that. However, their use of a separate and private recording would be a different matter.
“It’s possible that someone else, a private individual, made a recording of the speech in question, and the copyright status of that sound recording or A/V work would be more complex, but it’s likely the individual would have a valid copyright in that exact recording,” Holland explains.
“This is only germane to the issue at hand if Harley & Muscle own that original recording, of course, and if it is that recording that was used to create their YouTube video. Otherwise, there’s a 3rd party involved who has rights that may or may not be infringed here by both parties.”
Adding yet more complexity to the mix, Holland goes on to explore another potential, albeit hugely unlikely scenario, but one in which Believe Digital could have a legitimate claim.
“It seems extraordinarily unlikely, if not impossible, that the speech excerpt on YouTube [uploaded by Homer] was made by copying the samples within the [Harley & Muscle] song and pasting them together. It may well be impossible, I haven’t listened to the full extent of both. What seems likely is that both of the parties involved had access to another, more complete recording of the speech,” Holland adds.
Which would be, of course, the original public domain work. With that established and a fun detour into the public domain and back again, all roads branched back to what we initially believed to be the source of the problem – YouTube’s ContentID.
Somehow the system has ‘awarded’ Believe Digital and Harley & Muscle “the rights” to go around monetizing this particular JFK speech based on their remix of the work more than 50 years later. That may have happened because speeches themselves don’t qualify for ContentID, potentially designating Harley & Muscle as the original publisher. However, those very same rules could also exclude their track from ContentID, but clearly didn’t.
“Generally, [these kinds of mismatches are] unquestionably the downside of ContentID, and the extent to which it streamlines procedures for content holders. It’s certainly a shame that Believe Digital won’t engage, but this is really a place where YouTube needs to step in,” Holland concludes.
While Believe Digital did not engage with either Homer or TorrentFreak on the matter whatsoever, during the week came a development.
“Thanks to your intervention this claim has indeed been silently dropped, just as I suspected, without an apology or even so much as an explanation, and I presume also without any consequence to the opportunistic claimant,” Homer told TF.
With Homer’s ‘strike’ gone he can relax again once more, but something clearly needs to be done about the one-sided nature of the YouTube complaints process.
Companies like Believe Digital should be made to stand and engage once they have made a claim, not ignore the issue until they come under pressure. In this instance it was ‘just’ a claim against the original speech, but a claim against another artist remixing the same content could mean loss of earnings – or the loss of his YouTube account entirely with a third strike.