YouTube and retention of rights
Silence DoGood
kids to get their shots and I want it to be widely watched, possibly
even distributed, and expect nothing other than personal credit. (I'm
saying "YouTube" like I say "Kleenex", that is, I am open to other
similar sites, if anyone has a suggestion.)
Has anybody analyzed the fine print on You Tube? It seems I can remove
the video permanently or update it. Would merely posting surrender any
rights? Would I be agreeing to ASCAP or BMI? Would they be likely to
remove all or part if I hold up a Copyright sign? Is there a place to
attach restricted use provisions? Where might I post it as sheet
music?
Any comments on the meaning of "public domain"? I worry that such a
dedication could not be restricted in any manner, that is, I couldn't
assure that I would even be given credit as author and I don't want
anybody else profiting from it.
I was thinking of some kind of free use with conditions, that is, no
royalties required as long as distribution is for the purpose of
improving health and not for profit. Can anyone suggest a model?
Barry Gold
[Silence asks about posting a video on YouTube that he wants to reach
a wide audience. He asks what the implications of doing that are, and
whether he can still put restrictions on it.]
You would have to read the YouTube policies to be sure, but I don't
see anything wrong with, e.g., holding up a copyright sign, or saying,
"This video is copyright 2009 by Silence DoGood, and licensed subject
to blah, blah, blah".]
A quick look says that when you post something, you *keep* the
copyright, but you grant YouTube a _non-exclusive_ license to use,
distribute, etc. and to sublicense or transfer their license to
others, and to other users to view or distribute the video _through
the YouTube website.
IOW, as long as you leave it up there, people can view it, show it to
other people, send the URL to other people, etc. If you want to
cancel that license, follow the rules for removing the video.
If you want to put up "restricted use" permissions, you will have to
display them or say them in the video. AFAIK there is no place to put
them on the YT website.
>Any comments on the meaning of "public domain"?
"Public Domain" means that nobody owns the copyright, so anybody can
use, copy, distribute, or modify it. That pretty much applies only to
two categories of works:
. Works whose copyright has expired. (Mostly this means works
published in 1922 or before, but it can also apply to works whose
author died more than 50 years ago -- except Motion Pictures which
now have 95(?) years.)
. Works that the author specifically says are "public domain" or
"copyright abandoned".
But posting something on YouTube doesn't put it in the Public
Domain, as I said above.
>I was thinking of some kind of free use with conditions, that is, no
>royalties required as long as distribution is for the purpose of
>improving health and not for profit. Can anyone suggest a model?
I suggest you check out the following:
. Creative Comons
http://creativecommons.org/
This allows you to specify whether people can
. use your work commercially
. modify your work (with or without attaching a CC license to
it)
These are often abbreviated, like
CC-BY (creative commons, with attribution)
CC-BY-NC (creative commons, with attribution, no commercial use)
CC-BY-SA (creative commons, with attribution, share alike)
CC-BY-NC-SA (creative commons, with attribution, share alike,
no commercial use)
Also check out http://en.wikipedia.org/wiki/CC-BY-SA
. GFDL - the Gnu Free Documentation License
http://en.wikipedia.org/wiki/GFDL
. FreeBSD Documentation License
http://www.freebsd.org/copyright/freebsd-doc-license.html
There are other "free" licenses available, but one of those is most
likely to be what you want. For example, you could choose the GPL
(Gnu Public License), the LGPL (lesser GPL), the BSD license, or the
Apache license. But those are designed for software rather than
videos or documentation, so are unlikely to be quite what you want.
If you really care, you can hold up a sign that says, "Copyright 2009
by Silence DoGood, licensed under..." (and specify: GFDL, Creative
Commons - which one, BSD Documentaiton license, etc.)
This is for discussion purposes only, and is not legal advice. I'm
not a lawyer. If you want legal advice, hire a lawyer.
--
Barry Gold, webmaster:
Conchord: http://www.conchord.org
Los Angeles Science Fantasy Society, Inc.: http://www.lasfsinc.org
Seth
>"Public Domain" means that nobody owns the copyright, so anybody can
>use, copy, distribute, or modify it. That pretty much applies only to
>two categories of works:
> . Works whose copyright has expired. (Mostly this means works
> published in 1922 or before, but it can also apply to works whose
> author died more than 50 years ago -- except Motion Pictures which
> now have 95(?) years.)
> . Works that the author specifically says are "public domain" or
> "copyright abandoned".
The latter method might or might not work. (Consider what happens if
the author later files bankruptcy; would the judge rule that the
copyright is still his property even if he _used to_ license it
freely?)
There's another category, too: works produced by the US Government.
Seth
Stuart A. Bronstein
>> . Works that the author specifically says are "public
>> domain" or "copyright abandoned".
>
> The latter method might or might not work. (Consider what
> happens if the author later files bankruptcy; would the judge
> rule that the copyright is still his property even if he _used
> to_ license it freely?)
Gifts are generally recognized by bankruptcy courts as long as they
don't constitute a preference or a fraudulent transfer.
Robert Bonomi
If the author has disclaimed copyright, by an express announcement of placing
it in the public domain, or an 'abandonment' statement, that action is
permanent and irrevocable. A bankruptcy judge cannot retroactively reverse
that action.
IF, on the other hand, the author had retained copyright, but had simply made
a practice of granting licenses 'at no cost', the BK court _could_ halt that
practice, requiring any _new_ licensee to 'pay money' for said rights. This
would -not-, however, affect the rights that anyone acquired _before_ the BK
judge acted.
>There's another category, too: works produced by the US Government.
To be comprehensive, gotta include third-party-authored "works done for hire'
paid for by the Government, too. *grin*
Barry Gold
AFAIK a gift is valid, and once complete cannot be undone unless
a) The donor was insolvent at the time of the gift
b) The gift caused the donor to become insolvent
So if the author explicitly puts the work into the public domain or
abandons the copyright, and is not insolvent, and the copyright isn't
his main asset (unlikely), then it is a valid gift and the BK court
will not undo it merely because he becomes insolvent months or years
later.
>There's another category, too: works produced by the US Government.
Right, I missed that one. Thanks. AFAIK this also includes "a work
made for hire" commissioned by the US Government.
Stuart A. Bronstein
> If the author has disclaimed copyright, by an express
> announcement of placing it in the public domain, or an
> 'abandonment' statement, that action is permanent and
> irrevocable. A bankruptcy judge cannot retroactively reverse
> that action.
Right - unless it's determined to be a fraudulent transfer or a
preference.
Cy Pres
(Robert Bonomi) wrote:
>If the author has disclaimed copyright, by an express announcement of placing
>it in the public domain, or an 'abandonment' statement, that action is
>permanent and irrevocable. A bankruptcy judge cannot retroactively reverse
>that action.
Only if the author had the legal right to do this at the time. I do
not believe that an author, facing bankruptcy, who spitefully
abandoned estate property in order to thwart his creditors, would be
permitted to do so. Remedies to such an action, if there is not
already a case on point, would likely consist of treating the
abandonment as a nullity, and if that were not legally possible,
perhaps refusing to grant a discharge, or making that portion of the
debt attributable to the destroyed property nondischargeable.
I think it is likely the bankruptcy judge would, though, simply treat
the abandonment as a nullity.
Stuart A. Bronstein
> bon...@host122.r-bonomi.com (Robert Bonomi) wrote:
>
>>If the author has disclaimed copyright, by an express
>>announcement of placing it in the public domain, or an
>>'abandonment' statement, that action is permanent and
>>irrevocable. A bankruptcy judge cannot retroactively reverse
>>that action.
>
> treat the abandonment as a nullity.
The judge can't do it "simply." There must be (and there are) legal
grounds that allow that to be done, and the court must find, on
admissible evidence, that the factors exist that allow the court to
unwind the transaction.
These grounds are that it is a preference (under federal law) or that
it is a fraudulent transfer under state law.
Robert Bonomi
Cy Pres <c.p...@yahoo.com> wrote:
>On Thu, 29 Oct 2009 12:21:33 -0500, bon...@host122.r-bonomi.com
>(Robert Bonomi) wrote:
>
>>If the author has disclaimed copyright, by an express announcement of placing
>>it in the public domain, or an 'abandonment' statement, that action is
>>permanent and irrevocable. A bankruptcy judge cannot retroactively reverse
>>that action.
[[.. munch ..]]
>
>I think it is likely the bankruptcy judge would, though, simply treat
>the abandonment as a nullity.
How the BK judge treats it is -meaningless-, as far as IP rights go.
Anyone who acquired the IP in question -- *while* it was 'abandoned' or
'released to the public domain' -- is free to do "whatever they d*mn well
please with it", _regardless_ of a subsequent change in the item's copyright
status.
Any subsequent copies of the instance of a work acquired 'free of copyright'
are *NOT* impacted by an 'adverse' change in the copyright status of the
original from which the work came.
_IF_ the BK judge does order the copyright 'reinstated', or the 'abandonment'
nullified, that simply results in a situation where a party attempting to
acquire the work directly from the copyright holder may have to pay royalties,
while they can acquire the *same* work, _without_ use restrictions, from any-
one who acquired =their= copy during the period after abandonment, and before
nullification.
Since the 'public domain' version of the work can be 'freely' copied without
cost, the value of the reinstated copyright is essentially nil. The deed,
once done, of placing the item in the public domain, _is_, effectively,
irreversible.
About the only thing the BK judge _can_ do, in such a situation, is disallow
the discharge of debt in the amount of the estimated value of the copy-
right would have been worth, if it had been retained.
Barry Gold
Which would only be the case if he was insolvent at the time, or if
the transfer left him without money for normal living expenses.
Another thing to consider: if somebody explicitly abandons copyright
on a work and publishes it with that notice, other people will rely on
that. I doubt that it is in the BK court's power to take action that
will create a detriment to those who have relied on that. So anybody
who has used the work, made copies, created a derivative work, etc.
would be allowed to continue to distribute that (and probably even to
sublicense it). That would probably reduce any remaining value of the
copyright to near-zero, even if the work were then placed back into
copyright.
Plus, if somebody makes copies of the work, how do you prove that they
were notified of the new decision rather than relying on the previous
published abandonment? Publication is not enough to create an
enforceable court order, AFAIK.
Cy Pres
(Robert Bonomi) wrote:
>In article <ud5me59v67rms7b4m...@4ax.com>,
>Cy Pres <c.p...@yahoo.com> wrote:
>>On Thu, 29 Oct 2009 12:21:33 -0500, bon...@host122.r-bonomi.com
>>(Robert Bonomi) wrote:
>>>If the author has disclaimed copyright, by an express announcement of placing
>>>it in the public domain, or an 'abandonment' statement, that action is
>>>permanent and irrevocable. A bankruptcy judge cannot retroactively reverse
>>>that action.
>>I think it is likely the bankruptcy judge would, though, simply treat
>>the abandonment as a nullity.
>How the BK judge treats it is -meaningless-, as far as IP rights go.
Hardly.
>Anyone who acquired the IP in question -- *while* it was 'abandoned' or
>'released to the public domain' -- is free to do "whatever they d*mn well
>please with it", _regardless_ of a subsequent change in the item's copyright
>status.
I do not think that a party who acquired and exploited intellectual
property rights that she knew or should have known were only "in the
public domain" due to an attempt at a fraudulent conveyance, which by
the circumstances of the release, was certain to be reversed if
attacked as a fraudulent conveyance, that party would be just as
willful infringer as any other.
For example, suppose the abandonment statement started out: "To make
sure those bastard creditors in my bankruptcy never see a penny of
money from this work, I hereby release it into the public domain.
Fight the power!" I don't think anyone could reasonably rely upon
such a statement.
Cy Pres
<spam...@lexregia.com> wrote:
>Cy Pres <c.p...@yahoo.com> wrote:
>> bon...@host122.r-bonomi.com (Robert Bonomi) wrote:
>>
>>>If the author has disclaimed copyright, by an express
>>>announcement of placing it in the public domain, or an
>>>'abandonment' statement, that action is permanent and
>>>irrevocable. A bankruptcy judge cannot retroactively reverse
>>>that action.
>>
>> I think it is likely the bankruptcy judge would, though, simply
>> treat the abandonment as a nullity.
>
>The judge can't do it "simply." There must be (and there are) legal
>grounds that allow that to be done, and the court must find, on
>admissible evidence, that the factors exist that allow the court to
>unwind the transaction.
This is more or less what I said. In the paragraph in between the two
quotes at the top of this article, which you snipped, I gave a few
possible reasons why such a transaction could be reversed,
specifically: "I do not believe that an author, facing bankruptcy,
who spitefully abandoned estate property in order to thwart his
creditors, would be permitted to do so." If I recall correctly, that
language tracks language used in cases where such transfers have been
set aside, and for that matter, made it pretty clear that I was
indicating a rather high specific intent standard.
Naturally, taking any action on a set of facts would require, by
definition, that a court actually find the facts to be the case based
on admissible evidence, and only after the party with the burden of
proof carried it. If I somehow gave the impression that I thought a
court would just, based on nothing, find a set of facts and make a
ruling based on its own imagination, I don't see how.
Cy Pres
wrote:
>Another thing to consider: if somebody explicitly abandons copyright
>on a work and publishes it with that notice, other people will rely on
>that. I doubt that it is in the BK court's power to take action that
>will create a detriment to those who have relied on that. So anybody
>who has used the work, made copies, created a derivative work, etc.
>would be allowed to continue to distribute that (and probably even to
>sublicense it). That would probably reduce any remaining value of the
>copyright to near-zero, even if the work were then placed back into
>copyright.
People could also rely upon publication of a forged version of the
work containing a similar announcement. In that case, the copyrighted
work would never have been out of copyright, regardless of what seemed
to a reasonable observer to be an explicit abandonment.
There are also cases of such reliance without abandonment of the
copyright, such as when a copyright has lapsed into the public domain
in one jurisdiction (for example outside the United States prior to
TRIPS) and a subsequent revision to the copyright laws extends the
copyright term and allows for reclamation of the copyright from the
public domain (such as TRIPS). Further, parties relying on the prior
belief that the copyright was in the public domain must be notified of
the intent to enforce before they may be sued, and while they must
cease reproduction immediately, are generally permitted some period of
time to engage in other infringing activity before they must stop.
The provisions are actually very complicated and technical and I might
have done violence to them, but there is some attempt to ameliorate
the effect on these "reliance parties."
>Plus, if somebody makes copies of the work, how do you prove that they
>were notified of the new decision rather than relying on the previous
>published abandonment? Publication is not enough to create an
>enforceable court order, AFAIK.
I think the innocence of the infringement in a case like this might
depend on how the original abandonment had been announced. If the
abandonment were announced in the context of a contentious bankruptcy,
that should have alerted a reasonable person that there was a cloud
over the right to exploit the material. Further, there might be some
means of issuing some sort of amended copyright registration in the
United States Copyright Office. I believe that would be sufficient
notice as well, but if it occurred *after* the infringing activity
commenced, presumably some further notice *should* be required before
this innocent infringer could be sued by, e.g., the creditors to the
bankruptcy estate who are now the proud owners of the restored
copyright.
A situation like this would generally invite settling out of court by
licensing the work, since litigating it all the way out is likely to
cost more than it's worth.
Stuart A. Bronstein
>
>>Right - unless it's determined to be a fraudulent transfer or a
>>preference.
>
> Which would only be the case if he was insolvent at the time, or
> if the transfer left him without money for normal living
> expenses.
Normally, but not always. If it is determined that it was made with
the intent to defraud creditors, insolvency is not necessary for a
fraudulent transfer. In addition, it's not insolvency at the time of
the transfer, but could be insolvency as a result of the transfer.
With respect to preferences, I was wrong. It's only a preference if
it's a transfer to a creditor.
Silence DoGood
wrote:
> Since the 'public domain' version of the work can be 'freely' copied without
> cost, the value of the reinstated copyright is essentially nil. �The deed,
> once done, of placing the item in the public domain, _is_, effectively,
> irreversible.
>From the point of view of one wishing his or her work to become public
domain upon death, it would seem that willing it so no longer counts
if there is not sufficient cash in the estate to cover debts.
Reading this thread helps me understand why the originators of the
copyright concept had it expire upon death and the ease with which
contemporary congress serves special interests.