Tag Archives: copyright

Takedown or Shakedown Notices: What You Need To Know About DMCA and Podcasts



You work hard producing your podcast, and the last thing you want is to have your hard work copied by another podcaster. So what do you do if you find out someone is using a part, or worse all, of your podcast without your permission? To protect your rights and intellectual property, the first thing you must do is recognize when your copyright is being violated (more on this later), and the second thing you must do is notify the company that is hosting the offending podcast.

Your notice to the podcast hosting company must comply with the requirements of the Digital Millennium Copyright Act (DMCA) and is usually referred to as a DMCA Takedown Notice. The requirements for A DMCA Takedown Notice are found in the United States Code, Title 17, Section 512(c)(3). DMCA Takedown Notice forms can be easily found using a Google search, and the requirements are simple and straightforward.

The requirements are: (1) identification of the alleged offending podcast, (2) identification of the offending party so the offender’s hosting company can notify the offending party, (3) a statement attesting you have a good faith belief that the use of the offending material is a violation of your copyright, not authorized by you or your agent, or is a violation of the law, (4) that what you are stating in your DMCA Takedown Notice, under penalty of perjury, is accurate and true and (5) your actual signature or an electronic signature.

What happens after you send the offender’s hosting company the Notice is that the hosting company must notify the offender and then remove the offending podcast. However, the offender’s hosting company must restore the offending podcast if the offender files a counter notice with the hosting company. The restored podcast then remains available to the public until you file a claim in a U.S. District Court and you notify the offender’s hosting company that the Court has issued an order to the offender to cease using the offending content.

Now, what exactly violates copyright law when it comes to podcasting? In a previous post, we covered what is (and is not) considered “Fair Use” when it comes to using part of another podcast in your own show. In general, the amount of the podcast used, the purpose and intent, whether or not the market value of your podcast is affected by the use, and whether the work is “transformed” via the other podcaster’s use of your material are determining factors. If another podcaster is lifting large chunks of your show and using it wholesale without adding anything of value themselves, there’s a good chance they are violating your copyright.

However, this is a gray area in the law, and the DMCA Takedown Notice procedure is so easy and straightforward that occasionally the process is used unfairly against podcasters who are clearly acting within Fair Use laws.

I was recently involved in one such DMCA case. One podcaster, I’ll call him Podcaster A, severely criticized another podcaster, Podcaster B, for what he said on his show. A war of words ensued on both shows where each podcaster said nasty things about the other. Podcaster B, who uses Blubrry hosting, inserted audio clips of Podcaster A’s criticisms into his podcast and then followed those clips with a response defending himself. As Blubrry’s General Counsel, I received a DMCA Takedown Notice from Podcaster A instructing me to remove Podcaster B’s podcasts that contained the audio clips of Podcaster A’s comments criticizing Podcaster B.

When I received the DMCA Takedown Notice from Podcaster A, I notified Podcaster B and had our team at Blubrry remove Podcaster B’s alleged offending podcasts. We had no choice but to remove the podcasts, even though I knew that this was clearly a misuse of the copyright law. What Podcaster B was doing in his podcasts was clearly Fair Use of Podcaster A’s content. Podcaster A was using the copyright law as a sword, as a way to punish podcaster B. The concept of Fair Use, as identified in federal statutes and by court cases, clearly allows a person to copy a critical remark and then use that critical remark in his own content to defend himself. How unfair would it be if someone were making critical comments about you and you couldn’t use those comments to defend yourself?

Unfortunately, I did not receive a counter notice from Podcaster B. That would have allowed Blubrry to restore his podcasts, and is the simplest, no-cost way to defend yourself against malicious Takedown Notices. The counter notice forces your accuser to file a claim in court if he really wants your content removed.

I’m hoping at some point more podcasters defend themselves against the malicious use of DMCA Takedown Notices, or as I call them, Shakedown Notices. In the case above, Podcaster A signed an affidavit that Podcaster B’s use of his content was a violation of copyright law. However, when you sign the affidavit contained in the DMCA Takedown Notice you have an obligation to review the offending content to insure it does not fall within Fair Use (Lenz v. Universal Music Corp., 801 F.3d 1126 (9th Cir. 2015). If you fail to make this review you may be liable to your alleged offender for misrepresentation including attorney fees, costs and damages. So, had Podcaster B filed a counter notice, he would not only have been able to get his shows automatically restored, but he may have been entitled to money from Podcaster A!

At Blubrry we want you to protect what you own. You have a right to control your content, and you also have a right to defend that content against malicious attacks. You work hard at what you do, so take a little time to understand your rights under the copyright law – and don’t be afraid to defend your rights if the need arises!

barry kantz-Attorney Barry Kantz is General Counsel and CFO of RawVoice and Blubrry. He can be found on Twitter @kantzb

This post is part of a series on copyright law as it pertains to podcasters. Check out Barry’s post on using music for your podcast without breaking copyright law as well as his post on determining what “fair use” means when it comes to podcasting. 

 

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What Does “Fair Use” Mean When It Comes To Podcast Copyright?



 

John pulls his microphone to the center of the desk and prepares to begin his weekly podcast, “Ooze News.” After opening the list of news articles he assembled from his main source, the New York Times, John begins reading and recording the articles verbatim into his podcast. John finishes his podcast by telling his listeners that he hopes they enjoyed this week’s top news stories from the Times.

Anna has a podcast called the “Groove News,” a weekly podcast that, like John’s, uses various articles from the New York Times as sources. Anna assembles her list of articles and begins discussing each article and inserting her analysis, comments and opinions, using enough of each article to give context for her analysis, comments and opinions. Anna then compares each Time’s article with similar news stories written by other news sources and highlights how each news source treats the “facts” in each article differently. Anna uses these differences to support or highlight her analysis.

 copyright issues podcasters

Which podcast is using the concept of “Fair Use” within the realm of copyright law? If your answer is that Anna’s podcast comes closest to the definition of “Fair Use,” then you are correct. But the real question here is: why is Anna’s podcast “Fair Use” and John’s is not? The answer is not easy and not simply defined.

It’s obvious that we cannot take something someone else has created and treat it as our own in our podcasts. But there are legitimate situations when we can include another person’s work in a podcast. Those situations fall under the broad category in copyright law called “Fair Use.” This is an area of the law where two equally important concepts clash head on: free speech and property rights.

If I create something, it is my property and I control its use – therefore, you cannot take it, free of charge and without permission, for your own use. However, as a citizen of the United States I have a very broad right of free speech so I can say just about anything I want in my podcast. So, if I have the right of free speech, how can a someone use the power of the government to stop me, as in John’s podcast, from reading news articles in my podcast? Within the answer to that question lies the concept of “Fair Use.”

“Fair Use” is not easily defined because it lives within the enormous grey area between free speech and property rights. It usually takes the final word from a court to tell us what “Fair Use” is in specific situations. But there are five general rules we can apply that will give us a reasonable assessment as to whether or not we can use the creative work of another person, without getting permission or paying for it, in our podcast. Here are three factors that are particularly relevant in the case of John and Anna’s podcasts:

  1. Transformative Use. A primary test is whether or not you transform another person’s creative work and make it into something of your own creative work. In the example of John and Anna, John simply read the news stories from the New York Times and did nothing else; there was nothing creative added in John’s podcast. However, in Anna’s podcast, Anna took pieces of news stories and added her comments, opinions and comparisons. Anna was transforming the various news articles into her own work by what she was adding.
  2. Amount and Substantiality: Another factor determining “Fair Use” relates to the amount of the news story used in Anna’s podcast. Anna used just enough of the news story to support her opinions, comments and analysis. However, Anna could have used the entire news story, if that was required to make her point. In contrast, John would have been no better off in claiming “Fair Use” by simply declaring before reading each news story, “this article sucks,” or “this article is right on.” In this example, John’s comments relate to the whole news article, but the comments do little to transform the work, as required in factor 1.
  3. Purpose and Character of the Work: Copyright law tilts in the direction of “Fair Use” if you are using another person’s work for educational purposes, news reporting, commentary, research and scholarship. The words, “tilts in the direction of ‘Fair Use’ used in the previous sentence are not used lightly. The courts, when analyzing a “Fair Use” claim, consider and balance all five factors when making their decision.

Above I’ve discussed three of the five factors used to determine “Fair Use.” The two remaining factors not discussed are: “The Effect of the Use on the Potential Market For or Value of the Source Work,” and “The Nature of the Original Work.” Those two factors didn’t carry as much weight in my balancing test when looking at John and Anna’s podcasts. Please take a look at the University of Minnesota’s website at https://www.lib.umn.edu/copyright/fairuse if you want to dip deeper into “Fair Use.” In addition to containing good information about the basics of “Fair Use,” the website has a nifty interactive tool to analyze your content to determine if you are a fair user. But, as always, the best resource to use to review your content for potential copyright problems is an attorney familiar with copyright law.

One more important thing: You own the copyright for the podcasts you produce. Never treat your ownership rights lightly and give away the rights to your show. It was a common practice in the early days of podcasting for podcast service providers to claim ownership to your show’s rights when you signed up for their services. This practice is no longer prevalent but seems to crop up occasionally. Always read the user agreements before you sign up with a podcasting service. This simple act will protect your rights and save you from major problems.

Now go podcast and have fun!

barry kantz-Attorney Barry Kantz is General Counsel and CFO of RawVoice and Blubrry. He can be found on Twitter @kantzb

This post is part of a series on copyright law as it pertains to podcasters. Check out Barry’s post on using music for your podcast without breaking copyright law. 

 

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3 Copyright Myths That Will Sink Your Podcast



Have you ever wanted to use a segment of your favorite song as bumper music for your podcast? Maybe a clip or two from Meat Loaf’s “Bat Out Of Hell.” Perhaps you are on show number thirty-five and you have consistently used short clips from popular songs for your bumper music. After all, the music clips are all less than ten seconds long, and you were told that you can use any music in your show as long as the music doesn’t exceed the ten second limit. In addition, you know you are doing the right thing when you play the music because you are giving credit to the band right after the clip is played.

copyright issues podcasters

Your audience is increasing and you are beginning to think the work you are investing in your podcast is paying off. Your payoff is simply the satisfaction you receive because you are providing good information to your audience.  Your show is truly a non-profit endeavor because you are not looking to make money.  

Then one day you receive an email that is truly a bat out of hell. The email is from an attorney representing a large music organization and she is demanding that you remove all the music clips from your podcasts because you are violating the artists’ copyrights. The next day you receive a registered letter making the same demand to remove the music – and insisting that you now owe a huge sum of money for each clip of music used in each of your shows.  

How could this have happened? You were told by other podcasters that you can use copyrighted material under the Fair Use Doctrine if your podcast is a non-profit, or if you give credit to the artist, or if you use a clip that is less than ten seconds in length. You thought you had your bases covered on all three of the exceptions to the copyright laws.

Unfortunately, you were wrong…and now you’re in legal and financial hot water. 

Here are three persistent copyright myths that can sink your podcast: 

  • Myth number one – it’s okay to use copyrighted music if the portion of music used is less than ten seconds long. You cannot use another person’s music for your bumper music unless you have express permission, or you’ve purchased a license to use the music. That includes clips that are less than ten seconds, five seconds or even three seconds long.
  • Myth number two – you can use copyrighted material if your show is a non-profit endeavor. Sorry. It doesn’t matter whether you are making ten thousand dollars a month or your show is extolling the virtues of Mother Theresa in the most non-profit manner possible. There is no non-profit exception to the copyright laws.
  • Myth number three – You can use copyrighted material if you give attribution to the producer of the material. Nope. Sorry again. There are no attribution exceptions anywhere in the copyright laws. In fact, there are no attribution requirements anywhere in the copyright laws. Attribution is simply common courtesy and a handy way to avoid accusations of plagiarism.

If you believe these three myths and put them into practice when producing your podcast, you can get into a lot of trouble. I’ve used simple explanations in debunking the three myths hoping this simplicity will quickly get you on the right track, or keep you on the right track, when producing your podcast.  Copyright laws in general and the Fair Use Doctrine in particular are complex, and there are a lot of grey areas within that complexity. I will dig a little deeper into the Fair Use Doctrine in future posts. Of course, you should consult an attorney if you have questions about the specific material you are using in your podcast.

barry kantz-Attorney Barry Kantz is General Counsel and CFO of RawVoice and Blubrry. He can be found on Twitter @kantzb.

 

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