A while back, there was a Guardian article on corporations claiming ownership over videos in the public domain:

But one titanic problem with ContentID has received little attention: the use of ContentID by those who falsely or incorrectly assert ownership over public domain works – works that have no copyright at all – and then either block access to the videos, or collect the advertising revenue from these videos.

FedFlix is a charitable project launched by Carl Malamud, a “rogue archivist” who raises funds to digitise and upload videos created at US government expense. Under US law, government creations are in the public domain and can be freely used by anyone, but the US government is remarkably lax about actually making its treasures available to the public that owns them.

Malamud’s group pays the fees associated with retrieving copies from the US government – sometimes buying high-priced DVDs that the government issues, other times paying to have unreleased videos retrieved from government archives – and posts them to YouTube, the Internet Archive and other video sites, so that anyone and everyone can see, download, and use them.

Malamud’s 146-page report from FedFlix to the Archivist of the United States documents claims that companies such as NBC Universal, al-Jazeera, and Discovery Communications have used ContentID to claim title to FedFlix videos on YouTube. Some music royalty collecting societies have claimed infringements in “silent movies”.

Here is more on FedFlix.

One of the ostensible reasons for SOPA and Protect IP is that it provides an undue burden on content IP owners to find and locate every single instance of copyright infringement. One of the main pushbacks against SOPA and PIPA is that it would apply an undue burden on the part of user-generated sites to approve each and every piece of content that someone uploads. And what we have hear can validate each argument. The content producers’ recklessness can at least potentially be attributed to having to scan over so much material that they get some things wrong (if we are to take the most benign explanation). And the burden that the sites face make it so that they simply don’t have time to straighten things out (this benign explanation is, I believe, more reasonably applied here).

But what jumps out at me here is the difference between a right you have and a right that is respected. I’ve mentioned this before with regard to the TSA. It doesn’t matter what kind of rights you have if they are arbitrarily ignored. In fact, it makes it worse because at least rights you are denied have to be justified somewhere along the chain. To use the TSA example, if they are going to force all milk-bottles to go through an X-Ray machine, the TSA has to make the case that this is safe and necessary. If you have the right to have your milk bottle not go through the machine, but they penalize you for ever asserting this right, then they have effectively made a rule without justifying it.

So here we have a case where videos that CBS and Discovery do not own are being flagged. Their ability to claim ownership over these videos has never been justified. The ability to post these videos is, at least in theory, granted because they are in the public domain. In practice, however, there is simply no way to actually assert this right without being severely penalized. This applies to more than YouTube videos. You are theoretically in the right if you choose to make and release a Little Mermaid video. However, if you choose to do so, Disney can turn around and claim that you infringed not on the Little Mermaid that exists in the public domain, but their variation of it. They may have absolutely no case, but if ABC/Disney sends you a letter saying that they are going to use all of their legal might to run you out of business, are you going to risk it? Are you going to pay thousands and thousands in legal fees to emerge victorious… and broke?

I am considering a superhero project. In it, I would love to use some of the (few) superheroes that have fallen into the public domain. But these have been used by the Big Boys. The Big Boys can make all sorts of arguments (similar to Little Mermaid), and once they get to court, I’ve already lost. And so while I have the right to use these heroes, I am not free, in any meaningful sense, to actually assert that right. And so I won’t.

Copyright carries with it loads of ambiguity and logistical problems. Either they have rights that are extremely difficult to enforce, such as a proliferation of videos on YouTube that they have to have taken down one by one or thousands of BitTorrent downloaders that they have to single out (and get a lot of bad publicity in the process)… or we have rights that are difficult to assert. The theoretical, but constantly challenged, right to back up content that we own. The ability to actually own, rather than merely rent, works that we buy. The right to upload material that nobody owns the right to. This creates a real zero-sum environment wherein either content producers have insufficient ability to enforce their copyrights, or an ability so broad as to create real headaches for people tagged with false positives.

And where you sit is where you stand. It becomes worthwhile to ask questions about how much we – the consumers – can actually trust the content owners to behave ethically. Their apparent entitlement to endless copyrights, and their willingness to engage in shoot-first-ask-questions-later tactics, and their propensity use the money they make to lobby for laws that reduces access to the public domain, makes me inclined to restrict their power as much as possible. Even if, as they claim, it has a detrimental effect on the arts in the long run.