Tag: copyright

Here’s the follow-up from my last post about the copyright claim that YouTube made on a video I made using a Creative Commons soundtrack. You can read the previous post for the start of the story if you’re interested.

Since then, I’ve had conversations with several people about the issue. One was Jeff Price, the CEO of Audiam. Audiam was listed by YouTube as the entity responsible for policing the claim. Audiam is a service that musicians can use to track the use of their music in YouTube, although I think they also monitor Spotify and a few other streaming services as well. Basically, when a musician signs up to use Audiam’s services they upload a sample of their music which gets passed on to YouTube and fingerprinted. Fingerprinting is a process whereby the track can be compared against existing tracks to see if it matches, thereby identifying the copyright status of the music. If a match is made, YouTube flags it as a copyright violation and that was the problem I was having. It’s all done algorithmically of course, there are no actual people involved in the process, and in principle it’s a great idea.

My contention was that the track in question was a Creative Commons licensed track and therefore had been incorrectly identified by the system, so I appealed the infringement claim by YouTube/Audiam.

I had a few back and forth exchanges with Jeff Price about the problem. While we probably didn’t quite see eye to eye on everything, overall I thought it was a productive conversation. I was impressed and thankful that Jeff took the time to engage in the debate with me, although in the end, I didn’t feel that anything was really resolved. Basically, Jeff insisted that if I wanted to track to be released from the copyright claim I had to contact the musician and get them to ask Audiam to exempt my use of it. My argument was that a Creative Commons license was designed to avoid the need to do this and that it already grants that permission in advance. Jeff didn’t contradict me on this point, he just insisted that I either buy a license or get an exemption.

The most informative exchange I had was with the actual musician who created the piece, a guy called Enrique Molano. It took a bit of online detective work to find out who was responsible for the track but I eventually connected with Enrique through LinkedIn, where I discussed the issue with him. And that’s where it got interesting…

So here’s the lesson part of the story.

Enrique replied, very nicely, with a link to a support thread from Jamendo that contained the following information…

(No Derivatives is) the most misunderstood paragraph of the CC license. People think that as long as they don’t cut or trim the music, they can use it for their videos, but this is not true. Music with ND attribute is for listening only. You can make unlimited copies of it on various mediums, include it in playlists and compilations, embed it on websites, use it as music on hold or business background music, but you can’t use it as soundtrack for videos, games, audiobooks, presentations, etc. As the legal code says:

“(you can) make such modifications as are technically necessary
to exercise the rights in other media and formats, but otherwise
you have no rights to make Adaptations.”

People often argue that using an unaltered song as a soundtrack to a video does not make the video a derivative work, because the song itself is not recast or transformed in any way. That’s where “Don’t build upon this work” takes place. Coupling the music with additional content such as images, audio, or motion picture, is considered “building upon”. The legal code is very explicit about it:

“For the avoidance of doubt, where the Work is a musical work,
performance or phonogram, the synchronization of the Work in
timed-relation with a moving image (“synching”) will be considered
an Adaptation for the purpose of this License.”

Thus, as far as No Derivatives licenses are concerned, videos that use an ND-licensed song violate the terms of the license.

Say what?! I use Creative Commons a lot, and this is certainly not what I’ve been led to believe. I’m guessing that many of you may have also been under the same misconception. I’ve always understood that the No Derivs component of a Creative Commons license means that you can’t remix, change or edit the music, but I never realised that limitation extended to using the track, unchanged, as a soundtrack. But apparently this IS the case. Using a CC license with an ND property means you are NOT allowed to build upon the work, including using it as a soundtrack to a video.

The fact is, putting a CC BY-ND-NC license on a piece of work is just about as restrictive as leaving a full Copyright license on it. You still can’t really use it for anything without permission or paying.

While I feel a bit foolish not knowing about this detail of the ND license, I’m apparently not the only one. In his email to me, Enrique said “Sorry about the inconvenience. We’ve got about 200 claims from Audiam, apparently all of them under the same confusion.”  I don’t like being wrong but I am glad that this little journey taught me some things that I didn’t know. Engaging in the conversation with Jeff Price was interesting and useful (although we could have avoided a lot of our back and forth had he simply pointed out that an ND track can’t be used as a soundtrack under the terms of the CC license). I’m thankful that Enrique eventually pointed it out, and that caused me to delve into a whole lot more background reading about Creative Commons, including re-reading the actual legal code in these licenses. I also learned there are significant wording changes between CC v3.0 and CC v4.0.

But at the end of it all, I learned the bottom line. If you want to use Creative Commons music with an intention of including it in a video, even if you don’t modify or remix the actual music track itself, DON’T use a license that includes the ND property.

If you produce content and your intention is to share it, and if you want to provide others with the necessary permissions to build upon your work, stick to one of the “Culturally Free” licenses, either CC BY, or CC BY-SA.  Even a well intentioned use of No Derivs (or even Non Commercial) just causes a whole lot of headaches for those who want to legitimately build upon your work.

Featured image “I love to share” from  Creative Commons HQ on Flickr

A few weeks ago Linda and I got home from a short holiday in Bali. We had a great time, and managed to collect a few snippets of video along the way using a GoPro camera. A few days after I got home I managed to stitch a few clips together into a little video summary of the holiday using my own footage and some Creative Commons music that I sourced from Jamendo, one of of my favourite sources for CC-licensed music. I used a happy little track called “8_Happiness AC2” by an artist called “Music for your Media“. The track was licensed under a CC BY-ND-NC licence – meaning that if I attribute the artist (I did), don’t modify the music (I didn’t), and not make money from its use (I’m not), I was welcome to use it. That’s the nice thing about Creative Commons licensing; the terms and conditions of use are clear, explicit and fairly unambiguous.

Or so I thought.

After I edited the video – all 2 minutes and 52 seconds of it – it was published to YouTube. The next day I received a notification from YouTube saying that the sound track used on the video was a copyright violation, and that it contained “Disputed Third Party Matched Content”. In other words, someone was claiming that I’d used the music without the correct permissions from the copyright owner.

I don’t believe that it is “Disputed third party matched content”. I sourced the music track as a Creative Commons media asset, which was clearly indicated in the download link on the Jamendo site, as shown here…

“Free and legal for personal use” seems pretty unambiguous to me.

The Jamendo website also has a nice simple explanation of Creative Commons files on its FAQ page…

“Jamendo can be free and legal thanks to Creative Commons licenses. They grant the right to download and share music for free and legally. Artists choose to use these licenses, and to use Jamendo as a means to share and promote their music.”

“Creative Commons are licenses that enable musicians to give away their music for free while protecting their rights. They are easy to use and compatible with internet standards, and allow rights holders to authorize (or not) certain uses of their music, such as commercial uses and derived works.”

There was a link in my YouTube Video Manager dashboard to dispute the claim, so of course I disputed it. I provided the links to the site that I got the file from, pointed out it was a CC track, and assumed that would be the end of it.

Then today I got another notification from YouTube that my dispute had been rejected and that the original claim of using Disputed third party matched content would be upheld.

As a longstanding supporter of Creative Commons, I was pretty pissed off that the “copyright holder”, a label called Audiam, was jerking me around like this.  The track I used was clearly a Creative Commons track and my use of it was clearly within the requirements of the BY-NC-ND license. I have my own suspicions about why they are making this claim, but I’ll save the theories for now.  I don’t know what deal Music for your Media may have done with Audiam, but I do know that the file I sourced was issued under a clearly defined, non-revocable CC license.

Feeling very annoyed, I decided to appeal the ruling because in this instance I’m convinced I am right. Although it would be trivially simple to just substitute another piece of copyright free music from the YouTube media library and be done with it, it’s the principle that matters here.

So I clicked the link to appeal the dispute and provided the following information to YouTube…

Thanks for looking into this alleged infringement and making a ruling but NO, I cannot agree with this ruling. I know it would be far simpler to just remove the video from YouTube or to replace the soundtrack with a different piece of music, but there is a principle at stake here. I believe that your ruling is incorrect and I’d like to dispute it further. Despite the risk I take in having you find against my use of the music again, I know that I am in the right and I want to defend my use of Creative Commons licensed material.

The piece of music in question, “Music for your Media – Happiness is Here” was sourced under a Creative Commons license from Jamendo, one of the Internet’s major sources of Creative Commons music.

The link at which I retrieved the MP3 file was this page… https://www.jamendo.com/en/track/1147331/8-happiness-ac2

When clicking the Download button on that page the license terms of the music are displayed as Creative Commons BY-NC-ND

Use of the track is clearly summarised on the download dialog as follows…

Some Rights Reserved – Attribution-NonCommercial-NoDerivs CC BY-NC-ND
You can copy, distribute, advertise and play this track as long as you:
Give credit to the artist
Don’t alter, transform or build upon this album
Don’t use this album for commercial purposes

I have not violated any of those terms. The music is credited in the closing credits of the video, I have not altered or remixed the track. I have not used it for commercial purposes, it’s simply a personal video about a holiday I took in Bali. (non commercial even includes the fact that YouTube ads are turned off for this video)

I am a longtime user and contributor of Creative Commons material. I am well aware of how CC licensing works and it seems very clear to me that this work was released under a Creative Commons license, and that my use of it was well within the requirements of that license.

I should also point out that CC licenses are not revocable. As stated on the Creative Commons wiki FAQ, “CC licenses are not revocable. Once something has been published under a CC license, licensees may continue using it according to the license terms for the duration of applicable copyright and similar rights. As a licensor, you may stop distributing under the CC license at any time, but anyone who has access to a copy of the material may continue to redistribute it under the CC license terms.”

So even if Audiam, the label claiming ownership of the music, has changed their mind about the licensing of this track, this does not affect my use of it.

To sum up, I have sourced this track legally and through legitimate means. I have completely complied with the terms of this non-revocable CC license. A CC licence is a pre-granting of permission to use a media asset. I do not need to contact the copyright owner to seek permission because that permission has already been granted.

I fail to see how this could possibly be seen as a copyright infringement, and I hope that common sense and a more complete application of the principles of Creative Commons prevails.

I await your response.

Let’s see what happens. I’ve heard of people making these spurious copyright claims before but this is the first time it’s happened to me. The reason is generally that if they win they get the right to place their ads on my video and earn money from them. Most people don’t bother fighting it because it’s simply too much work to appeal, it runs the risk of getting a copyright strike against your YouTube account if you lose, and it’s just far easier to roll over and give in.

Not me, not this time. There is an important principle of freedom at stake here and that’s worth fighting for. I’ll let you know what happens.

Featured CC Image by Kev-shine on Flickr