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by dijksterhuis·7y ago·view on hn ↗
How it was recorded has nothing to do with copyright law (in this case, mechanical rights are a whole thing).

A musical work was publicly performed (via the radio). He recorded that musical performance (making a copy of the musical work in the process) and then distributed that recording of it to a wider audience. Each time someone watches that video, that is a public performance of that musical work.

Whether there was intent or not, it doesn’t matter. How it was recorded doesn’t matter.

Copyright law doesn’t care about intent. It cares whether a musical work has been performed or copied. Both have happened in this case.

And it can be argued that it does not fall under news programming (he’s not a journalist breaking a story) nor educational (he’s not teaching anything). Therefore it will struggle to be considered fair use.

This is actually copyright law finally being applied correctly on the internet. Its just taken years for it to actually happen on platforms like YouTube.

2 comments
I agree with recording by accident or on purpose should not be a deciding factor in anything but...

The problem is 10 seconds or even a minute of a recorded song shouldn't mean a record label or the original music owner can swoop in and reap 100% of the ad revenue (minus Google's cut) for a 1 hour video you recorded which has ads relevant to your content (not the song).

By the way, you could argue he is educating because he often visits historical sites and gives some back story on it. You could also argue he is a journalist because he has a running series called "Harald invades" where he'll go into some family's house (with permission of course) and learn about how they live and work (aka. it's a story). Actually most of his videos feel like stories, since it's not over edited garbage with a spin for profit. He just goes through towns and documents the process raw. I would say he is one of the best journalists I've ever seen.

I agree with the 10 seconds problem. But that’s a problem with Youtube’s implementation - nothing to do with fair use, incidentals or copyright law.

Edit: having replied to another comment, I think I’ve realised something. IIRC The original YouTube license deal with PRS meant that they only sent over video level data - no cue sheets of music tracks etc. They specifically wanted this in their license. So their current implementation might be a remnant of that.

News and educational content actually have quite narrow scope. And those episodes/segments probably wouldn’t fall under that scope.

And then you have to take into account the overall purpose of the channel. Which is not one of news/education.

People watch it for entertainment much like the old Michael Palin travel documentaries. None of which are considered news or educational.

Just playing the devil's advocate, "Fair Use" could be an interesting question here...I think it would fail the "academic use" rule, but worth consideration, if the criteria (from standford.edu) is:

1. The least amount of copyright material as possible should be used.

2. "Fair use" work must have significant new and unique material added (not be a compilation).

3. "Fair use" work must not harm future potential markets for the copyright work. (ex: not a highlight video)

4. Work must be either a parody, criticism, review, or "academic use" to qualify for "fair use".

If we're talking a 10s clip of audio where the original is significantly longer, I think the most significant question is whether the work could qualify under the legal term category of "academic/educational". A work can only be considered "academic/educational" if it meets all of the following (also from stanford.edu):

1. Noncommercial instruction or curriculum-based teaching by educators to students at nonprofit educational institutions.

2. Planned noncommercial study or investigation directed toward making a contribution to a field of knowledge.

3. Presentation of research findings at noncommercial peer conferences, workshops, or seminars.

I don't know the legal muster required to meet this, but from what I've read, this is where "almost all" youtube videos are going to be disqualified, especially by the intent of the rule, which is to provide an out for teachers/instructors and students.

The whole argument is rendered null by the fact that youtube has to comply with the DMCA, which requires that work be taken down if it contains work created by other people (clips, background music, photos), though.

Also youtube seems to have a fairly flexible amount of power here, can take down pretty much any content it wants, and if it chooses to side with the copyright side by default, they have the power to make that consideration.

My opinion is that if you're going to be creating content, and advertising and/or monetizing them, you really shouldn't have any copyright work in there. Saying "it's only 10 seconds of the work" may provide some legal footing for the "must have significant new work" rule, but it seems like you're just drawing an arbitrary line in the sand and saying your side is okay, whereas youtube owns both sides and the whole beach.

So to take this to its ultimate conclusion: These copyright holding corporations are just blindly optimizing for maximizing their grasp on any content whatsoever. If there was any more subtlety to it they wouldn't claim a 10 second bit of accidental background radio, that the maker of the video never wanted or asked for. I can't wait until they realize they can build really large speakers and be able to "audio bomb" and lay claim on anything recorded, anywhere ...
> These copyright holding corporations are just blindly optimizing for maximizing their grasp on any content whatsoever.

This is what the reality is:

These copyright holding corporations are just optimizing for maximizing their grasp on their own recordings within any content whatsoever.

They legally own the recordings. What happens with the recordings is ultimately up to them. If they want to be paid for the use of their recordings, it’s their choice and they are free to do so.

> the maker of the video never wanted or asked for

Let’s flip this on its head... Did the rightsholders ask for him to be recording at a specific moment in time when their content was playing?

No. He made that choice. He chose to record that musical work.

He could have done plenty of things to avoid a recording a copyrighted work.