A request for comments on not publishing clips with known fair use samples
Hosted by Various Hosts on 2019-06-06 is flagged as Clean and is released under a CC-BY-SA license.
Tags: HPR, Policy Change, Legal, DMCA, TWAT, Fair Use, PacketSniffers, Copyright.
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Request for comments
Under safe harbor provisions, we as volunteers are usually insulated from any copyright issues that may arise in the shows. "We do not vet, edit, moderate or in any way censor any of the shows on the network, we trust you to do that."
This we got by accident because "This is a long standing tradition arising from the fact that HPR is a community of peers who believe that any host has as much right to submit shows as any other."
In the show notes associated with hpr2829 on 2019-06-06, the host included the following text "For all included materials: If anyone feels they have right to any material in this show please let me know and I will comply."
This violates the HPR upload policy.
"Never include content, for example music, in your show that you do not have permission to redistribute. Try to avoid using any content in your show that can not be redistributed under a Creative Commons Attribution-ShareAlike 3.0 Unported license. If you are redistributing under another Creative Commons License or by arranged permission please make note of the restrictions when you upload your show. We can then signal that, so that others who redistribute HPR content can filter your show out."
As it was clear that they were not in compliance, I contacted the host. The host has been very helpful and has already removed some of the content but commented "There are still 2 audio clips included. I claim I can use them on the basis off fair use principles."
While the host may be correct, if they are not, then it is me and not the host that will be held responsible for posting it. I do not want that responsibility.
Under the current HPR rules I am allowed to reject this submission.
Before I do, I would appreciate as much feedback as possible on this topic so that we can gauge the opinions of the HPR Community as a whole.
The discussion thread remains open and is open to all by joining the Maillist.
Comment #1 posted on 2019-06-06T15:14:26Z by Joel D
Ken makes a key point when he says “While the host may be correct, if they are not, then it is me and not the host that will be held responsible for posting it. I do not want that responsibility.”
My two questions are, 1) What exactly is the nature of the two remaining clips whose inclusion is problematic? and 2) what would “being held responsible” mean in practical terms?
On the first point, how long are the clips and what are they of? Music? Broadcast footage? Do the clips comprise the entire original work or do they amount to a minor quotation?
In the US, Fair Use is an actual legal limitation of creators' rights under copyright law. The US also has the DMCA, which effectively allows providers to host anything, and if a copyright holder has a problem with their stuff being included somewhere they can file a takedown notice and the provider handles it by simply removing the content in question. But this is not the case in other countries, particularly the EU where there has been a lot of, shall we say, new development in this area recently.
If the answer to (1) is "the two clips are actually entire Beatles songs"…then there isn’t really a legal defense no matter what jurisdiction we're talking about.
But even if the answer to (1) is "They are fifteen-second excerpts from an hour-long lecture given at a public university", …If the answer to (2) is "we don't/can't know so we are acting out of an abundance of caution" I can respect that.
Comment #2 posted on 2019-06-07T11:32:43Z by Ken Fallon
We don't know
In answer to '1)' we don't know the nature, nor should we. This is HPR and any host can post whatever they wish without us checking it. If they don't tell us it contains copyrighted material we would never know.
2) I don't know but I do know I don't want to find out.
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