The Prelator

Weblog of Patrick McKay

Archive for February, 2010

Universal Music Takes Down “The Day ObamaCare Died”

Posted by darklordofdebate on February 14, 2010

The latest casualty of unjustified DMCA takedowns on YouTube appears to be the recent viral video hit “The Day ObamaCare Died,” which hit the web in October 2009 and was especially popular soon after Scott Brown’s stunning victory in Massachusetts last month. The video was originally created by YouTube user HerBunk, and featured a parody of the song “American Pie” (originally by Don McLean) sung by Obama sound-alike Paul Shanklin. The animated video was an instant online sensation, especially among conservative and Republican bloggers, for its humorous portrayal of President Obama lamenting the defeat of his monstrous health-care bill. Now that video is no more.

HerBunk posted the following video statement on YouTube on January 25:

I made “The Day ObamaCare Died” and I uploaded it in October 2009. I put in about 30 hours of work in making the video. My copyright for the use of the song was challenged almost immediately by Universal Music Group (WMG). I beat that challenge because I had received Paul Shanklin’s permission for the use of his song. UMG owns the rights to the Don Mclean song “American Pie” also known as “The Day the Music Died” and persisted in their objections to my video on YouTube. In Dec 2009, when it had almost 700,000 hits, YouTube folded and told me that despite the fact that I wasn’t infringing on UMG’s copyright they had a contractual agreement with UMG and told me to remove the video or they would close my account permanently for failing to comply with YouTube’s “terms of service.” I removed the video. Even though ObamaCare may really be dead, I apologize for not being able to sustain the protest against it.

When I commented on this posting asking if he had filed a DMCA counter-notice, he replied:

There is no copyright case against me. I filed a counter-claim and proved that I have permission to use the song. UMG doesn’t want it on YouTube. I was told by YouTube that due to their contractual agreement with UMG they have to honor UMG’s request. If I attempt to upload the video again on YouTube my account will be terminated for violating YouTube’s terms of use. The video is still alive elsewhere on the internet.

If this is the case, this is a sad state of affairs indeed. If his statement is accurate, it seems both YouTube and Universal acknowledge that Universal has no copyright claim against the video. This is certainly true as this video is a prime example of precisely the type of speech the Fair Use Doctrine of U.S. copyright law was designed to protect–a politically motivated parody that is transformative and non-commercial in nature and in no way competes with the market for the original song, yet because of its controversial subject matter it would be highly unlikely to ever secure the copyright holder’s authorization.

What’s troubling here is that Universal and YouTube appear to know that, yet Universal insisted on censoring the video anyway, and YouTube was forced to play along because it doesn’t want to alienate Universal. While YouTube does have a contract with Universal allowing UMG’s songs to be used in YouTube videos, I highly doubt that contract requires them to censor any video Universal doesn’t like even where Universal has no legitimate copyright claim against it. This is a simple case of two large companies teaming up to abuse copyright law in censoring legitimate political speech.

Anyone who values the right to free speech that we enjoy in this country should be outraged by this move, and personally I hope that the Electronic Frontier Foundation may take notice of this incident and file a lawsuit to stop this outrageous behavior.

In the meantime, I found a copy of the video on another video site and have re-uploaded it to YouTube under my own account. Maybe I will have better luck keeping it online than the original creator. You can view the video below. Please pass the word about this video and let Universal and YouTube know that they cannot get away with abusing copyright law to censor non-infringing political speech.

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The Purpose of Copyright Law

Posted by darklordofdebate on February 11, 2010

Recently several prominent blogs have been debating the fundamental purpose of copyright law, and Ars Technica ran an article on the exchange. The central question is whether copyright exists first and foremost to protect the rights of artists and creators to benefit from their intellectual “property,” or whether its primary purpose is to benefit the public by promoting the creation of culturally beneficial works. I believe both the Constitution and the history of American copyright law up until the 1990s or so clearly favors the latter view–that copyright exists to promote cultural enrichment and the interests of creators are inherently secondary. Below is an except from a paper I wrote for the Entertainment Law Initiative Essay Contest arguing in favor of this interpretation:


The constitutional purpose of copyright law is “to promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.”[1] Fundamentally, copyright law exists to promote the production of creative works, and in doing so must balance two distinct interests—the right of society to have access to and benefit from creative works, and the need to allow creators to benefit financially from those works in order to motivate their production. This balance is achieved by granting creators a temporary monopoly over the use of their works, which gives them the incentive and financial means to produce them. However, creators’ rights are always considered secondary to the public benefit. As commentator Mark Nadel states, “Granting the copyright holder a virtual monopoly by prohibiting the unauthorized copying and sales of copyrighted works is a necessary evil for attracting the financial investments needed to promote the creation and distribution of these creative works.”[2]

Contrary to the claims of many copyright holders, copyright is not based on the recognition of a fundamental right to control and benefit from intellectual property, but is rather an economic bargain to encourage socially beneficial creativity. Indeed, Congress has explicitly rejected the idea that copyright is based on natural rights, but has instead stated that its purpose is for the benefit of the public.[3] Economically, creative works (also called “information goods”) such as music are considered “public goods,” which are characterized by non-rivalry (one use does not compete with another) and non-excludability (difficult or impossible to limit access to).[4] These goods are typically difficult to profit from, and because they generally have fairly high production costs, there would be little incentive for people to produce them unless there is some guarantee that they can profit from their efforts.[5]

Copyright laws protect producers’ ability to price information goods above their cost of production by artificially limiting the supply of those goods and restricting access to them, reintroducing rivalry and excludability to what would otherwise be public goods. These restrictions allow creators to profit from creative works, motivating the production of works that would not otherwise be created. While this involves some loss to society through decreased access to copyrighted works, the monopoly created by copyright is considered justified as long as it results in a net gain to society in the form of more information goods being produced.[6] Conversely, when the exclusive rights granted by copyright do not result in a net benefit to society, they are not justified.[7] Therefore, if a particular right granted by copyright law does not produce a net benefit to society, it should be removed.

[1] U.S. Const. art. I, § 8.

[2] Mark S. Nadel, How Current Copyright Law Discourages Creative Output: The Overlooked Impact of Marketing, 19 Berkeley Tech. L.J. 785, 787 (2004).

[3] See H.R. Rep. No. 60-2222, at 7 (1909) (“The enactment of copyright legislation by Congress under the terms of the Constitution is not based upon any natural right that the author has in his writings . . . but upon the ground that the welfare of the public will be served. . . . Not primarily for the benefit of the author, but primarily for the benefit of the public, such rights are given. . . .”).

[4] David Lindsay, Centre for Copyright Studies, The Law and Economics of Copyright, Contract and Mass Market Licenses 23 (2002),

[5] Id. at 24 (“To the extent that an information producer is unable to recover the costs of production, incentives for the production of information goods, such as copyright material, are undermined.”).

[6] Nadel, supra note 4, at 787.

[7] See Bonito Boats, Inc. v. Thunder Craft Boats, Inc., 489 U.S. 141, 146 (1989) (“The Patent Clause itself reflects a balance between the need to encourage innovation and the avoidance of monopolies which stifle competition without any concomitant advance in the ‘Progress of Science and useful Arts.’ ”).

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