Item — HN Reader

He made money from his content. His content included a recording of a copyrighted work. Therefore he made money from that recording. It’s that simple.

He could have:

* scrubbed the audio

* removed the section including the musical work

* overlaid a royalty free musical work to replace the copyrighted one

* asked the market vendor to turn the radio off

* waited until the radio played a work that was not copyrighted

* etc etc

He’s chosen to include copyrighted material in his content by not doing any of that. Some of which would have been relatively simple to do.

In court I would think it would be difficult to prove there was nothing he could have done to remove the offending audio.

And he also falls foul of Fair Use (there’s another comment somewhere that digs into the definitions of educational content in this case) as this is not incidental usage.

If he falls foul of Fair Use, then regular copyright laws come in to play, which takes the simplistic binary viewpoints:

* Is there copyrighted music or not?

* Is money being made from the use of music or not?

Yes to both => remunerate rights holders.

2 comments

I understand that you're trying to be constructive, but nothing here replies to anything in my comment.

> He made money from his content. His content included a recording of a copyrighted work. Therefore he made money from that recording. It’s that simple

That's your position; mine was that there are strong arguments against that claim (I listed several), and no apparent reason why a court wouldn't consider them.

(Note that I'm not claiming the arguments against your claim are correct - I haven't even watched the video. I'm saying that whether infringement occurred is not a simple matter that can be determined by algorithms, as you've presented it. It's a nontrivial legal question that a court would need to rule on.)

> He could have: [removed the audio various ways]

I don't know why you've argued this. Of course he could have removed the audio, but what does that have to do with fair use?

You’re trying to argue that just because the music happens to be there that it has no relevance to the fact he makes money or not. I get that.

Fair use applies for cases like holiday videos shared between family & friends (not the case here), and incidentals.

You’re trying to argue that this is incidental. And I see what you’re trying to get at. But unfortunately the definitions of what constitutes news and/or educational programming are usually pretty clear cut. And this does not fall into either of those criteria. And they are the only things protected under incidental usage. There’s a comment somewhere in the thread that details a specific definition of educational content. The author of that comment agrees it would not fall under that category.

Once you remove fair use, it becomes completely black and white.

He made money from the video. The video contains music. Rights holders must be paid.

That’s it. That’s the copyright law viewpoint once you eliminate fair use.

> I don't know why you've argued this. Of course he could have removed the audio, but what does that have to do with fair use?

We wouldn’t be having this discussion about his specific video if he’d taken action to remedy the problem before it became a problem.

If I were a lawyer for a rightsholder, I would make the argument that there were many options for him to avoid using my clients copyrighted material and he did none of them. He could have avoid this situation but chose not to.

What makes him so special? Why can’t he edit his video like every other media company?

Edit - this is why the incidental provision was created in the first place. News & educational content may not be able to edit out the audio without jeopardising the core of the content - e.g. a live news report where there’s cars driving by playing music in the background.

> You’re trying to argue that this is incidental

I specifically said I'm not.

> > I'm not claiming the arguments against your claim are correct - I haven't even watched the video. I'm saying that whether infringement occurred is not a simple matter that can be determined by algorithms

> [news and/or educational programming] are the only things protected under incidental usage.

In a casual search, every source I checked disagreed with this claim. Examples:

https://www.copyright.com/blog/music-licensing-fair-use/

> There are certainly people who argue – and there are credible arguments to be made – that the incidental picking up of the music in the background during a documentary film can qualify for fair use. When you’re talking about incidental music picked up, you’re more likely to qualify for fair use if you’re not focusing on that music, it plays for a short period, and it’s in the background.

https://cmsimpact.org/code/code-best-practices-fair-use-onli...

> Fair use protects the creative choices of video makers who seek their material in real life. Where a sound or image has been captured incidentally and without pre-arrangement, as part of an unstaged scene, it is permissible to use it, to a reasonable extent..

Ah. I think I know what the problem is here.

I’m based in the UK and it seems Fair Use applies somewhat different here thanks to the Copyrights act in 1988.

We have a fair dealing clause[0] here.

> Certain exceptions only apply if the use of the work is a ‘fair dealing’. For example, the exceptions relating to research and private study, criticism or review, or news reporting.

[0] https://www.gov.uk/guidance/exceptions-to-copyright

Fair dealing comes from the POV I’m trying to get across.

> > I'm not claiming the arguments against your claim are correct - I haven't even watched the video. I'm saying that whether infringement occurred is not a simple matter that can be determined by algorithms

Yeah I somewhat agree with this. I’m pretty sure I said so somewhere (it might have been a slightly different comment thread, apologies if I didn’t make that clear).

The existence of a copyrighted work can be detected by an algorithm (although the accuracy is debatable in some cases). Whether it falls under fair use cannot.

As stated, Fair Use is decided on a case by case basis. But it’s assumed the rights holder is correct in their claim until the court decides.

In any case, before a counterclaim is approved by the court or if the court sided with the rights holder, then black and white copyright law comes into play.

Still, if the content creator took action to avoid including potentially copyrighted material, like everyone else does, then we wouldn’t be having this discussion.

Edit - before you pick up on it, criticism/review is a specific critical review of the work in question. As that doesn’t apply here, news/educational fair dealing then becomes the question. And then all those points I’ve been trying to make come into play. Could he have done things differently? What was the purpose of the content? Etc etc.

> I’m based in the UK .. We have a fair dealing clause here.

I know, and I'm familiar with the distinction. I assumed you were as well, and would be using the term of art for whichever system you meant.

> The existence of a copyrighted work can be detected by an algorithm .. Whether it falls under fair use cannot.

Thanks for the information.

Also, from one of your linked articles.

> If you’re going to rely on fair use, the bottom line is, you need to factor in how much risk you’re willing to take. Why? Because some uses are riskier than others and the risk of a failed fair use defense is copyright infringement.

Some of those are pretty ridiculous expectations of any content creator.

Scrub the audio? I don't think he's going to go in there and literally separate and remove the song's frequency from his voice which are interweaved together. Something like that takes a tremendous amount of knowledge and time and always comes out sounding bad because any time you remove shared frequencies it'll make your voice sound very choppy and robotic (I know because I've done things like this). His job would slowly become being an audio engineer instead of a traveler.

Overlaid a royalty free musical work to replace the copyrighted one? Not possible, his voice and background audio is on the same track. To do that would essentially mean muting the entire track. This is the easiest option and often what he does. He just cuts it or mutes it, both of which makes his video content worse.

Asked the market vendor to turn the radio off? He often does this in closed stores where he plans to spend a bit of time in, but it's unrealistic to expect anyone to do this in an open outdoor market with ~200 vendors spread around everywhere for 1,000 feet in every direction. You're asking to basically shut down the whole market and control every audio source while you walk around. Not happening for a regular person.

Waited until the radio played a work that was not copyrighted? Not possible due to the above reason but this is also a little more unreasonable because there's no reasonable chance a regular person will be able to determine which songs are copyright and which are not, especially not in another country where they don't even know what song is playing. Also by the time he researches the song (assuming he somehow figured out how to even determine if it's copyright or not), chances are a different song would be playing and now he's stuck in a research loop for the rest of his life, or ends up in an another infinite loop waiting for a copyright free song.

What about overdubbing? That’s the trick the majority of the industry uses.

...

> Asked the market vendor to turn the radio off?

> Not happening for a regular person.

And here were get to the crux of the matter.

I defer you to Charlie Brooker’s excellent video on “how much making one episode of a TV show costs”... skip to 5:05 for the section on clearance.

https://youtu.be/LbrmaeiZ4RE

All this stuff I’ve talked about is looked at by teams of people in media companies because they have to exist within the scope of the the law.

And that’s the issue you seem to have. It’s unreasonable to expect one person to do 20 extra jobs.

Yes it is. Which is why media companies hire 100s of people. Because they have to comply with the law.

Just because this is one person doesn’t mean he is outside the scope of the law. He doesn’t get any special treatment for being an individual. He’s got to suck it up like the rest of us.

He sometimes overdubs it while saying he has to mute the original audio due to record labels.

That video seems like an advertisement to try and convince people not to record anything unless they are a TV station.

I'm happy we live in a day where someone like Harald can just point a camera around a place while talking and it ends up being more entertaining (to me at least) than anything running on TV.