photo by jurvetson on flickr
Techdirt is reporting that Against Monopoly
is reporting that HBO is sending take down notices to people who have
uploaded their own recordings of the Inaugural Concert: We Are One. I
haven’t been able to verify this, but if it is indeed the case, it
would seem that HBO is misunderstanding their rights under copyright
law. Note that I am not a lawyer, so this is not legal advice.
Since HBO merely owns the copyright to their recording of the
concert, they can’t control what other people were doing with their own
recordings from their own cameras. This is because a work is not
entitled to copyright protection unless it is fixed. The actual
performance that happened that evening wasn’t fixed or copyrighted
until it ended up on HBO’s tapes (or hard drives).
If the content of the concert was in the public domain or free (e.g., The Star-Spangled Banner is in the public domain since it was created prior to 1923),
then any audience member who recorded it had the right to make a
recording of it and distribute that recording since they owned the
copyright to the video. Putting aside questions of anti-bootlegging
laws (which are arguably unconstitutional
and not relevant to DMCA takedown notices), it is not clear that HBO
can prevent distributions of privately filmed performances of public
domain works that were performed in a public venue, which, if the
Against Monopoly report is correct, is what part of what they’re trying
to do.
However, according to the Wikipedia page, a lot of non-public-domain non-free content was performed.
Which means that by recording and distributing a live performance of
say, a Bruce Springsting song, an audience member might be infringing
on the boss’ copyright, but probably not HBO’s copyright. Does anyone
know more about bootlegging laws and how they might or might not apply
here?
So what right does HBO have to send takedown notices for other people’s works? Sending fraudelent DMCA takedown notices is itself a violation of the DMCA,
so if you’ve been threatened by HBO for posting videos you recorded at
the inaugural concert, you probably have the right to file a putback, and perhaps take action against HBO. [emphasis ng's]
There are bigger questions, however, about the inaugural committee’s
right to leverage tax payer money and support to sell off exclusive
rights of a public event to a private entity such as HBO. I’m not clear
on whether their status as a legal entity would entitle them to do this.
Anyway, while I would like to see HBO put the concert into the
public domain along with other works of the federal government, that is
probably impossible as the recording contains works that are in
copyright, such as Bruce Springsting songs.
There is the possibility that HBO could put the video but not the
audio into the public domain, but I do not think there is an easy work
around for including both the audio and video. This is not to say,
however, that HBO is justified in sending nasty letters to citizens
interested in helping celebrate an important event.
I sympathize with the inaugural committee’s desire to produce and
execute a fantastic recording of a historic moment in American history.
I know that this kind of production costs money and there must be
incentives for creating it. But I think the conflicts between HBO and
citizens indicate that copyright is not the proper incentive here. It
alienates too many citizens interested in documenting their own version
of history, and given the context and content of our current
president’s administration, sets the wrong precedent for sharing that
history. HBO should be ashamed of themselves.
This entry was posted
on Thursday, January 22nd, 2009 at 12:11 pm and is filed under Copyright, Law, Music, Politics.
You can follow any responses to this entry through the RSS 2.0 feed.
You can leave a response, or trackback from your own site.
