NBCUniversal orders YouTube takedown of Birdie Sanders clips

NBCUniversal: “All your birdie are belong to us!”

If you’ve read my post “Put a Bird on It!” you know that it’s a work of art criticism which explores bird paintings and drawings, bird symbolism, and gives props to the original put-a-bird-on-it guy, Sri Chinmoy, who did it and meant it and lived it long before Bernie Sanders or Portlandia.

It was a post I enjoyed writing, but it was also hard work lining up all the resources which ultimately went into it: quotes from George Gamow’s book One, Two, Three…Infinity, from The Upanishads, from art collector Robert Scull, artist Paul Jenkins, and memoir writer Sumangali Morhall; also videos carefully selected to illustrate the points I was making and connect the cultural dots, so that the reader is not only entertained, but informed and educated.

The conceptual glue holding it all together is the idea that birds (especially doves) symbolize peace and freedom. This is even brought home with a video of spiritual master Sri Chinmoy playing the dove ocarina — a blue ceramic instrument in the shape of a dove.

The smooth progression of ideas flows through the famous “Birdie Sanders” incident where a little bird kibitzed on a speech given by the presidential candidate, and through Porlandia’s comedy sketch about putting birds on things.

I did not escape unscathed from the experience. NBCUniversal tried to clip my wings, but didn’t really succeed in doing anything other than shooting themselves in the tail.

“We are not here to sing, we’re here to kill the dove.” — NBCUniversal (actually Jacques Brel)

It’s apparently my fault for being a Rachel Maddow fan. On the day of March 25th, the “Birdie Sanders”/Portlandia meme went viral, and when Rachel came on at 9 PM she reported on it, as countless others had done. There are plenty of videos of both “Birdie Sanders” and the Portlandia sketch on YouTube and elsewhere, and combining them as Rachel did wasn’t exactly the soul of originality, but it was certainly the essence of convenience. Since I like Rachel, a couple months later I thought, Why not elevate two birds with one stone by embedding a YouTube of the Maddow clip? O my sad brother, will you never learn?

I thought I made “fair use” of the clip by including it in a broad presentation on the subject of bird paintings and drawings, bird symbolism, etc. After all, it’s only 4:23 from a 60-minute show, and of that 4:23, 3 minutes is a clip of the Bernie Sanders speech (which ran 1 hour 8 minutes), and 1 minute is a clip from a 2011 Portlandia episode (which ran 22 minutes). Rachel Maddow is visible on screen for all of 30 seconds and is heard commenting in places. It was old news in late May when I uploaded it.

The Bernie Sanders footage used by MSNBC was apparently taken from station KGW Portland, which is owned by Tegna Media  (Gannett spinoff). The identical footage (with its unique framing and panning) appears here on KGW.com. The Portlandia sketch is owned by IFC/AMC Networks.

But I get it that because Rachel Maddow commented on the speech and the sketch, NBCUniversal can claim copyright on the resulting segment. Still, the use I made of it was fair use because it was transformative — it included new ideas not present in the Sanders speech, the Portlandia sketch, or Rachel’s brief comments. It connected the existing meme with a 40-year history of bird paintings and drawings by Sri Chinmoy. It juxtaposed the short news segment with artwork and videos from gallery exhibitions, so that the resulting work of art criticism is something fresh and new.

My WordPress account and YouTube account are both non-commercial. Now, I realize that when you sneeze on the Internet, somebody in Mandalay gets 1/1000th of a cent. Everything is being monetized by somebody or other, but that somebody is not me. Nevertheless, I got a DMCA takedown notice courtesy NBCUniversal and a strike on my YouTube account. I’ll be filing a counter-notice establishing fair use, but it’s a nutty system where you only have 200 characters (about the length of a tweet) to ‘splain yourself. So I may point interested parties to this blog post for complete details.

I wasn’t the only victim of NBCUniversal’s draconian takedown policies. It turns out one other fellow posted the same “Birdie Sanders” clip I did. In fact he had posted several clips, so his YouTube account was terminated outright. Sad really.

NBCUniversal’s idea of putting a bird on it

The good news is that it was easy to replace the Rachel Maddow clip with two higher quality clips. This footage of “Birdie Sanders” posted by The Oregonian has gotten nearly 2 million hits, and this upload of the full Portlandia sketch has gotten 80,000. The uploaders are reaping the benefits of connecting with memes that people adore.

birdie-sanders-bye-bye-birdieNBCUniversal could have gotten some of that good karma, but due to their selfish attitude they get bupkis (other than a good dressing down on my blog). Kinda makes you wonder what the NBCUniversal legal dept. is drinking:

See also this interview with attorney Wendy Seltzer discussing how NBC “seems to be shutting down its own best advertising.” (The Seltzer may help cut the taste of the Thunderbird.)

On my blog, I’d rather promote The Rachel Maddow Show than The Oregonian, and include comments from Rachel in my piece about bird art. But if NBCUniversal punishes fans and denies legitimate fair use, this has the effect of freezing Rachel Maddow out of the conversation.

rachel-maddow-duct-tapeIsn’t it ironic?

There are a number of ironies to NBCUniversal’s off-putting, counterproductive behaviour here. Let’s take a gander at Kathleen O’Donnell’s note in the Duke University Law & Technology Review explaining the purpose of fair use:

Fair use has long been considered a critical component of the monopoly protection provided by copyright. In Campbell v. Acuff-Rose Music, Inc., the Supreme Court stated that, “from the infancy of copyright protection, some opportunity for fair use of copyrighted materials has been thought necessary to fulfill copyright’s very purpose, ‘to promote the Progress of Science and useful Arts.’” The fair use doctrine recognizes that most expression is not strictly original, but rather borrows from the wealth of literature and art that came before it. Therefore, the monopoly granted by copyright is restricted to allow for “a limited privilege in those other than the owner of a copyright to use the copyrighted material in a reasonable manner without the owner’s consent.” Through this limited right to use copyrighted material, fair use “encourages and allows the development of new ideas that build on earlier ones, thus providing a necessary counterbalance to the copyright law’s goal of protecting creators’ work product.” In this way, fair use preserves and fosters the same creativity that copyright law was created to encourage. [Footnotes omitted.]

According to The Center For Democracy and Technology, short news segments containing excerpts from political speeches are highly privileged under the fair use doctrine. So one irony here is that NBCUniversal appears to be benefiting from fair use by “borrowing” the Bernie Sanders clip shot by station KGW/Tegna Media, and the Portlandia clip owned by IFC/AMC Networks. Add a few words from Rachel Maddow and it’s magically transformed into NBC content! But when a blogger adds far more that’s new and original, suddenly NBC no longer recognizes fair use. The appropriately named Andrew Lack — Chairman of NBC News and MSNBC — seems to lack understanding of fair use, at least as it extends to people outside the Comcast/NBCUniversal monopoly.

For those old enough to remember the NBC peacock, another irony is that NBC’s concept of putting a bird on it is sort of the opposite of Portlandia’s: NBC puts their peacock on things to make them non-free, and therefore ugly. It’s easy to picture a satire on the Portlandia sketch which goes something like this:

Hi, I’m Steve Burke. Hi, I’m Matt Bond. And we put peacocks on things! What a sad little Bernie Sanders speech. I know! I’ll put a peacock on it. Now it’s pretty. Now it’s ours!

A decent site for MSNBC? Not if Comcast can help it…

The Rachel Maddow Show is part of MSNBC’s programming lineup. MSNBC is owned by NBCUniversal, which is owned by Comcast. The acquisition of NBCUniversal by Comcast is an example of vertical integration, since Comcast is also a major ISP and cable provider in many markets, with major complaints about its quality of service.

According to Nate Anderson writing in Ars Technica, four months after the controversial Comcast-NBC merger was approved by Federal Communications Commissioner Meredith Attwell Baker, she left the FCC for a top lobbying job with the newly combined Comcast-NBC entity.

When a media behemoth owns both the content and the “wire,” this can be a nightmare for consumers, resulting in rate hikes and paywalls. Indeed, while consumers could once watch complete video podcasts of The Rachel Maddow Show and other MSNBC fare on MSNBC.com, such complete podcasts are now only available to cable subscribers or via a paywall.

As for the MSNBC website itself, it’s notoriously non-user-friendly and tortuous to navigate. See this link for a cavalcade of bad reviews in which “horrible” and “awful” are the predominating adjectives.

The MSNBC website seems to reflect twisted priorities or an underlying conflict of interest. If you’re YouTube, your primary mission is to make sure that everyone who visits the site can play the videos, even with a slow Internet connection. That’s why YouTube offers a low bandwidth version of every video, tries to adjust to the end user’s connection speed, and lets users choose between 144p, 240p, 360p, and higher resolutions. YouTube also makes it easy for WordPress.com users to embed YouTube videos in blog posts, because YouTube implements the popular oEmbed standard also used by Vimeo, DailyMotion, and other popular video sites.

But on MSNBC’s site, videos often don’t play, or choke the end user’s Internet connection, or take over the entire screen. Comcast’s self-serving message appears to be: Your connection isn’t fast enough to use our site. Better upgrade to a more expensive plan! MSNBC.com does not implement the oEmbed standard for embedding.

So people don’t want to go to MSNBC.com to watch a video or make a comment, because it’s just too user-unfriendly an experience. They want to go to a site like YouTube that’s easy to use, and is supported by blogging platforms like WordPress.com. They want to go to a site where the video is streamed to end users at a bitrate they can handle.

Punishing people for YouTubing short segments won’t solve this problem; it will only ensure that bloggers turn to alternative sources (e.g. The Oregonian) for clips of the same news events. Instead of feasting on sour grapes, MSNBC should create a site that people actually want to visit and that implements the oEmbed standard, so WordPress.com can easily support it. Make your site better and people will actually want to visit it or link to it as a source of embedded videos on blogs. Declaring war on fair use (in addition to being illegal) is a poor excuse for figuring out why people hate your site and finding ways to make it more user-friendly.

How fair use applies in today’s media marketplace

Today, vertically integrated conglomerates like Comcast/Xfinity/NBCUniversal (which also owns Hulu) may attempt to monetize the same content in a bewildering variety of ways, in effect dominating the marketplace.

nbc-universalThough the same content may be sold from a number of different media “stalls,” this must not be allowed to undermine fair use.

Even if a short news segment containing a portion of a political speech is being deployed commercially in multiple venues, this should not preclude a blogger from uploading a clip to YouTube for purposes of comment, criticism, or “the development of new ideas that build on earlier ones.” The public good from such fair use greatly outweighs the very minor market disruption.

Where a short news segment is embedded in a blog post along with commentary reflecting obvious transformative value, NBCUniversal needs to respect such fair use. It must not be permitted to abuse the DMCA takedown process until only restricted versions of a short news segment exist. This would have the effect of creating a monopoly on ideas contrary to the intent of the fair use provisions of copyright law.

In deciding Lenz v. Universal, the Ninth Circuit Court of Appeals made clear that media companies need to carefully consider whether something qualifies as fair use before issuing a DMCA takedown notice. Where a media company shows willful blindness to fair use, they may be liable for damages under section 512(f).

Final thoughts

The nature of a meme is that it propagates through multiple iterations, and there’s a snowball effect. So aside from legal considerations, NBC violated social media etiquette by capitalizing on a meme, but then saying “The meme stops here — I call copyright.”

If you can get the site to work, you may still be able to view the short Rachel Maddow clip on MSNBC.com here. The whole segment is her cooing over footage of the Bernie Sanders speech and the Portlandia sketch, which is fine. (I like the sound of cooing.) What’s not fine is NBCUniversal smacking down bloggers who continue the meme by uploading a portion to YouTube and blogging about it.

Michael Howard

The views expressed are my own, and do not represent any other person or organization.



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