Category Archives: Opinion

Court isn’t crazy about Prince challenge to dancing baby

The 9th U.S. Circuit Court of Appeals in California isn’t crazy over Universal Music’s attempts to take down a YouTube video featuring a toddler dancing to the song “Let’s Go Crazy” by Prince.

In a September ruling, it agreed with a district judge who had held copyright owners must consider fair use before issuing takedown notices under the Digital Millennium Copyright Act (DMCA).

Fair use is a provision of the copyright statute which allows for use of a copyrighted work under certain circumstances that have negligible impact on the market for the work. The statute lays out four factors for a determination of fair use: the purpose and character of the use; the nature of the work used; the account of the work used; and the effect on the work’s value.

On Feb. 7, 2007, Stephanie Lenz posted to YouTube a 29-second video of her children running and dancing in her kitchen as “Let’s Go Crazy” played in the background. Most of the video, which is available at, focuses on the younger child, leading it to be called the “dancing baby” video.

Universal Music, which was authorized by Prince to administer the rights to the song, discovered the video through its routine monitoring of YouTube for material infringing its copyrights, and sent a notice to YouTube under DMCA, seeking that the “dancing baby” video be removed.

Under DMCA, web sites such as YouTube that allow posts and contributions by users can avoid liability for infringement for user contributions if the site follows the DMCA process for copyright owners to request removal of infringing material. Under this process, the web site must “expeditiously” remove or disable access to the material and inform the poster, who can then challenge the removal. Upon receipt of such a challenge by the poster – known as a counter-notice – the website must restore the material unless the copyright holder files suit against the poster.

Universal’s takedown notice for the dancing baby video was one of 200 the company sent to YouTube for alleged infringements. YouTube removed the video on June 5, 2007, and informed Lenz of the removal. After Lenz objected, Universal reiterated its position that the video infringed on the song’s copyright. Lenz sent a second objection on June 27, which led YouTube to restore the video.

She also filed suit against Universal, claiming that its takedown notice to YouTube was improper because it did not account for fair use.

The district court denied Universal’s motion to dismiss the case in 2008. After discovery, both parties moved for summary judgment in the case, arguing that no trial was necessary in order to resolve the case. But the federal district court denied both motions, which would allow the case to proceed to trial. Both parties then appealed to the 9th Circuit.

The appeals court’s decision in September agreed that the case couldn’t be decided on summary judgment without a trial.  It also held that copyright rights holders must consider fair use before issuing DMCA takedown notices.

The court’s decision, written by Circuit Judge Richard C. Tallman for himself and Circuit Judge Mary H. Murguia, dwelled on a provision of the law which requires a DMCA takedown notification to include a “statement that the complaining party has a good faith belief that the use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law.” The court said that language included a requirement that the use of the copyrighted work be evaluated as fair use before the takedown notice is sent.  In other words, the copyright holder has to determine before the notice whether fair use is a use “authorized by … the law.”

The appeals court held that it was, affirming the district court and allowing the suit to proceed to trial. The court also held that Lenz need not show actual financial damages to proceed with her lawsuit.

In addition, the appeals court held that jury must determine whether Universal’s procedures before issuing the DMCA takedown notice were adequate to form a good faith belief that Lenz’s video infringed on the “Let’s Go Crazy” copyright.

If a jury finds that Universal had a good faith belief that the video infringed the copyright, the appellate court held, the company would not be liable for any misrepresentation in the takedown notice. The court added that “a copyright holder’s consideration of fair use need not be searching or intensive” in order to avoid this liability, noting that it may be possible to use computer algorithms, combined with human review, to conduct this evaluation.

Circuit Judge Milan D. Smith, Jr. dissented in part, disagreeing with the majority’s holding that the statute’s prohibition against misrepresentation in DMCA takedown notices required a prior fair use analysis by the copyright owner. But he otherwise concurred with the majority, and in the result.

After the decision of the three-judge panel of the 9th Circuit, the Electronic Frontier Foundation, which represents Lenz in the case, sought en banc reargument of the case before a larger panel of the Court of Appeals.  EEF argued that the appellate court should have granted summary judgment to Lenz – in other words, given Lenz the victory without a trial. Universal responded that the appeals court should not have heard the appeal in the first place.

If the 9th Circuit declines to rehear the case and its prior opinion holds, the case would go to trial before a jury. If a jury finds that Universal had a good faith belief that the video infringed the copyright, the company would not be liable for any misrepresentation in the takedown notice.

So the case of the dancing baby video may continue to trial, unless a settlement is reached. Copyright owners are put on notice that they must consider fair use before issuing takedown notices for alleged infringement online. Posters to the web are given more protection from removal of their posted material if it is protected by fair use. As babies can “go crazy” to a song in the background, and have the video posted online.

The ruling, Lenz v. Universal Music Corp., is available at


Author’s note: Eric P. Robinson is co-director of the Press Law and Democracy Project at Louisiana State University and of counsel to the First Amendment law firm The Counts Law Group.

Charter must do better with its Spectrum app and support

Charter Communications, which is now using the marketing term “Spectrum” for its TV, Internet and phone offerings, is supposed to be a high tech company. But when it comes to its app for iPhones and iPads, it has a ways to go.

In this age of mobile apps, high-tech companies have to perform well in multiple areas while making it easy for consumers to use their products. Too bad that Charter has yet to figure this out.

This article is based on the iOS version of Charter’s app.

The app promises you can watch most stations live on a mobile device when using your home network. A glaring omission is ESPN, which is not available.

The Spectrum app was a bit hard to navigate intuitively, and instructions like these, which were found on Charter’s website, show why: “To search for a specific channel number, you must select Watch on TV at the top of the screen and then you can tap Sort to quickly locate channels. Tapping Sort a second time sorts channels in alphabetical order.”

The app was cluttered, and while better on an iPad, was very tough to navigate on an iPhone. Recently, the app failed to show local stations live.

Many people were clearly upset with the app’s problems. Of the 61 reviews at the time of this writing (Nov. 4), only a handful were higher than the lowest one-star rating.

Braymeister’s late October review titled “Really?!?!” said: “The reviews have been bad for as long as I have been watching. I tried the app a couple of times but it won’t even load.  What’s more, I go to the website and it’s almost useless.” Braymeister called it “the stinking app.”

Jpharrisjr, a new Charter customer, wrote, “I am not impressed with the app because, well it doesn’t work.  A technology company really ought to do better than this.  Seriously.”

My frustration began with the first call to tech support. The tech had no clue as to what I was talking about. After being transferred to the Internet division, the person on the other end of the line also knew nothing about the app.

Later, after a call back, a second person knew about the app but had not heard of any problems. Why? Don’t the people at Charter read the reviews of their products and inform their tech help how to respond? The answer is apparently “no.” They should be aware of the negative feelings and be trained on how to handle those calls.

And indications are, given the statement from the Charter spokesperson below, they were aware and working on the problem. So the rep I spoke with was either never made aware of the problems, a bad thing, or, the rep lied, also a bad thing.

Anyway, they promised a tech would call back within 48 hours. Then, just ten minutes later, Charter called to ask if they could call back that afternoon, would someone be available? But that callback never came. And no word from Charter after 48 hours as well.

After I made another call to support, the new promise was that a callback would be made within five days. It never came.

While not answering specific questions, a Charter spokesperson responded in an e-mail, “Charter is aware of these issues; some of which are already resolved, and others are being actively addressed.”

The local station problem appears to be resolved.

Companies like Charter, Comcast, AT&T U-verse® and others have to see more and more people are dropping their cable subscriptions in favor of finding programs in other ways – with services from Netflix, Amazon and even networks offering alternative ways to watch.  Called “cord cutters,” many experts predict the trend toward ala carte selection of programming will continue.

Unless these companies plan to make all their money from Internet access, they need to address their problems of poor customer service and improve the quality of executing their apps. Failing that, their future is not very bright.

A foul call

Sports reporters are having a heyday with Los Angeles Dodgers’ Chase Utley’s recent post-season slide into New York Mets shortstop Ruben Tejada.  Most sports media pundits agree Utley went in too late and too high. As a result, Tejada’s right leg was broken.

Sports pundits now are debating whether or not Major League Baseball’s chief baseball officer, Joe Torre, was correct in suspending Utley for what many seem to agree was a dirty play where the Dodgers’ infielder was more intent on taking out Tejada than in reaching second base. As FOX Sports reporter Ken Rosenthal put it, “I’ve got no problem with baseball suspending the Dodgers’ Chase Utley….”

But while sports journalists are debating whether Torre’s two-day suspension is or is not excessive, it’s curious why these reporters are arguing over what amounts to a mere slap-on-the-wrist warning.  Why, for example, are sports writers not recommending suspending Utley for the entire time Tejada is sidelined with a broken leg?

A two-day –- or less –- suspension will do nothing to curb Utley’s future play, protect other shortstops or help put an end to dirty plays.  A suspension with teeth will send a message to baseball thugs.

Sports writers, those call-it-like-it-is journalists, are missing this story in the same way umpires missed the Utley-Tejada call. And two wrong calls don’t make a meaningless suspension right.

All that said, no doubt all’s well that ends well as the Mets beat the Dodgers Thursday in game 5.  Fittingly, Utley lined out as a pinch hitter in the Dodgers’ futile 9th inning.

Media surge to cover Trump’s media surge

The media have turned their attention to Donald Trump in recent weeks, and now columnists are in turn opining on Trump coverage itself.

On the Washington Post’s Monkey Cage blog, political scientist John Sides wrote in his article “Why is Trump surging? Blame the media,” that “the answer is simple: Trump is surging in the polls because the news media has consistently focused on him since he announced his candidacy on June 16.” This attention alone has propped up his poll numbers, Sides says, but the “discovery phase” won’t last. The next phase will be “scrutiny from the news media, aided and abetted by the competing candidates.”

Last week, the Huffington Post announced it would cease covering Trump’s sideshow as politics, instead filing it under entertainment. “We won’t take the bait,” they said. Then Trump took a swipe at John McCain’s war hero status. The media cacophony became louder. In response, Huffington Post compiled a list of 162 people asked to comment on Trump’s latest bait.

Media Matters’ Eric Boehlert took a different tack, explaining “How the media missed the Donald Trump surge.” Boehlert says Trump’s ascension should surprise no one who’s paid attention to the radicalization of the right in recent years. “Yet during most of that span, the D.C. media stoically pretended the GOP hadn’t taken an ugly, radical turn. And that’s why so many seem baffled by Trump’s rise.”

Reality journalism: Keeping up with the candidates

Seven weeks after former President Nixon’s funeral on April 27, 1994, Hunter Thompson published his own obituary for Nixon, “He Was a Crook,” on June 16 in Rolling Stone magazine. In it he blamed the practice of Objective Journalism for enabling Nixon to climb to the Oval Office: “It was the blind spot of Objective Journalism’s rules and dogma that allowed Nixon to slither into the White House in the first place. He looked so good on paper that you could almost vote for him sight unseen. He seemed so All-American, so much like Horatio Alger, that he was able to slip through the cracks of Objective Journalism. You had to get Subjective to see Nixon clearly.”

Thompson gave readers a taste of what Subjective Journalism might have shown them about the man they voted twice into the highest office in America: “We could always be sure of finding (him) on the Low Road. There was no need to look anywhere else for the evil bastard. He had the fighting instincts of a badger trapped by hounds. The badger will roll over on its back and omit a smell of death. Which confuses the dogs and lures them in for the traditional ripping and tearing action. But it is usually the badger who does the ripping and tearing. It is a beast that fights best on its back: rolling under the throat of the enemy and seizing it by the head with all four claws.

That was Nixon’s style – and if you forgot it, he would kill you as a lesson to the others. Badgers don’t fight fair, bubba. That’s why God made dachshunds.”

We shall never know if doses of subjective journalism like Thompson’s would have helped Hubert Humphrey (in 1968) or George McGovern (in 1972) in their efforts to defeat Nixon. Reporters covering those presidential campaigns, for newspapers and network news, stuck mostly to the precepts of objective journalism.

Objective journalism, with its goal of fair, accurate and thorough coverage of politics, remains available. However, two factors have done much to wipe out the distinction between such coverage and subjective journalism as practiced today and explored here. One is the reliance, particularly among younger readers and watchers of news, to get their news from digital sources. These audiences want and expect news that is quickly digested and includes a guide or hint to its “meaning.” Also, the battle between the so-called “liberal-left wing” media and “conservative right-wing” ones often requires journalists to aim for skewered coverage. In that kind of coverage fact and opinion are often smoothly merged so that readers and watchers do not have the time, information and ability to separate them in their minds.

The growth of subjective, opinion journalism online sometimes seems to drown out the fair and independent journalism that traditional news organizations still provide.  In fact, the political blogs produced by those traditional news organizations sometimes obscure some of the objective reporting from the campaign trail.

The coverage of Hillary Clinton’s candidacy illustrates the primacy of subjective, opinion journalism.  Do samples culled from publications and websites during the past three months reveal whether or not they propel readers to see the crop of candidates from both parties clearly, or at least more clearly than the veil of objective neutrality permits?

Commenting on Hillary’s first major news conference with CNN, Jonah Goldberg wrote for National Review Online (“Estrangement from the Truth is a Problem for Hillary”): “It was a classical Clintonian way of lying: Make a sweeping, definitive-sounding statement (“I’ve never had a subpoena,” for her emails on Benghazi) and then when called on it, release a fog of technicalities.” Goldberg called these “technicalities “a farrago of misleading statements, blame-shifting and deception,” and concluded that Hillary has “forgotten how to fake convincingly.”

Goldberg has been writing opinion columns for decades and National Review has always been a reliable source of conservative commentary.  But it is worth asking: Is Goldberg’s depiction of Hillary’s style of deception equal to Thompson’s of Nixon’s conduct of political battle? Did readers grasp the “real” Nixon through Thompson’s images? Does Hillary come alive in Goldberg’s prose or does she appear as just another lying politician?

Writing for Canada’s National Post John Robson took a similar approach to “seeing” Hillary (“Clinton’s presidential battle”): “Even if Americans are ‘ready’ for a woman, she’s obnoxious, pushy, out of touch with normal people and so sourly, deviously dishonest, we long for her husband’s charmingly open deceit.” Feminists and others may find “pushy” obnoxious and reject portraying her husband as a used car salesman from whom you don’t much mind buying a lemon because he did it with folksy charm while she tries to sell it with a sour disposition.

Journalists looking at Hillary more favorably take a subjective stance by offering helpful hints for personality improvement. Writing for the New Republic Elspeth Reeve (“What Hillary Can Learn from Michelle Kwan’s Figure Skating Career”) recounts how Kwan responded after she had to settle for a bronze medal at the 2002 Winter Olympics because of a tumble in the free skate competition: “After the competition, Kwan skated the exhibition she’d planned long before – in a gold dress, to the song ‘Fields of Gold.’ That, sports fans, is hubris. As she finished, tears ran down her cheeks. Take note, Hillary.” Readers may choose to wait for the movie.

Jamelle Bouie on Slate (“Why Hillary Clinton Should Go Full Nerd”) proposes that Hillary should “offer voters her authentic geeky self” because “Clinton is strongest when she sticks with the concrete – the nuts and bolts of government…Americans want solutions more than inspiration.” Bouie cites Carl Bernstein’s analysis of Hillary as “a woman who led a camouflaged life and continues to” and suggests that revealing her nerdiness to voters would be “the most authentic move she could make.” Forget the gold dress and tears.

Clinton is not the only candidate receiving this kind of “up close and personal” treatment from the media. Her Democratic rival, Bernie Sanders got it in the New Republic from Chelsea Summers (“Bernie Sanders Was Just another Hippie Rummaging through My Mothers Fridge”): “One hot night in July 1972 I walked into my family’s kitchen to see my mother brandishing a broom at a skinny man who had his head stuck deep inside our refrigerator.

‘You get out!’ my mother yelled, hitting the man on his skinny ass…Years later, I’d find out that man was Bernie Sanders.” Readers do not find out if that encounter with the writer’s broom-wielding mom drove the young Sanders into the arms of socialism or shaped his character in any way. They can see, however, that age and years as a U.S. Senator have put some flesh on that skinny frame.

On the Daily Beast Donald Trump is derided for his “garish taste” and “awful hair.” In the New Republic readers can learn “how to piss off Donald Trump.”  All male Republican candidates are rated by their manliness on Slate (“The Macho Primary: Which Republican presidential candidate is the manliest?”).

Readers are likely to be bombarded with similar journalism during the fifteen months up to the November 2016 election. Letters and posts on websites may reveal whether such pieces accomplish what Thompson expected subjective journalism to do: provide readers with a clear view of candidates’ character.

Journalists may ask if such articles constitute “subjective journalism” as Thompson practiced it, or if they are journalism’s political news version of “Keeping Up with the Kardashians.”

The ‘best’ and ‘worst’ of KTVI Tim Horton’s coverage

St. Louis television viewers watching KTVI Channel 2 were recently given two sharply different versions of the opening of the area’s first full-sized Tim Horton’s in the St. Louis suburb of Maplewood.

Covering the opening of the first location of the chain is appropriate, but in terms of good journalism, Channel 2 provided “the best of times” and the “worst of times” with its coverage.

Horton’s is a Canadian chain that sells coffee and pastries and other food items. Staking a St. Louis area foothold with its first store at 7468 Manchester Road in Maplewood was a legitimate news story.

On the night of June 22, during the 9 p.m. newscast, Channel 2 anchor Mandy Murphey did a solid story on the event. She asked questions about Horton’s business strategy and how the company planned to compete against organizations like the St. Louis Bread Company. Murphey offered a thorough report.

But a day later, Channel 2’s Lisa Hart offered what seemed to be a commercial for Horton’s during the 11 a.m. newscast. Her first question to the Tim Horton’s representative Tina Bryan was “What makes Tim Horton’s so great?” Journalism?  No. There are many people who don’t think it is such a great brand at all. But the softball question let Bryan do a full-blown commercial.

Bryan took advantage of Hart’s questions with lines like: “There are a lot of things that make Tim Horton’s special,” and “We have such a wide breadth of menu items.”

At one point, Hart said that she loved the donut she was eating. Hart acted more like a Tim Horton’s cheerleader than a reporter. She said at another point, “You’ve got everything. It’s so great.”

While she did ask about Horton’s future plans (opening 40 stores in the St. Louis area), she failed to follow up with any questions of depth or corporate strategy such as “Why St. Louis?” or “Why 40 locations?” There were no questions posed about other competition in the marketplace from outlets like Dunkin Donuts or Starbuck’s.

Hart could have asked questions about obesity and the calorie-heavy ingredients contained in Horton’s products, but she didn’t.

While covering the Horton’s opening was newsworthy, what Hart did was not “news.” Her report appeared during what’s supposed to be a news show. But it was more appropriate for a program filled with feature content like “Show Me St. Louis,” the weekday, 10 a.m. offering on Channel 5. People often pay for their stories on “Show Me St. Louis,” and that fact is disclosed in a general way at the end of each show. “Show Me St. Louis” is a feature program not a newscast.

Channel 2 news managers have an opportunity for improvement among their reporters by comparing the two stories. Murphey showed how to do it right as a journalist. Hart showed how to do it wrong, making a commercial pitch during what’s supposed to be a newscast.

Dudman looks back at Pol Pot

Richard Dudman, the chief Washington Correspondent for the St. Louis Post-Dispatch in the 1970s, almost died in Cambodia – twice. Now, at age 97, he looks back at his reporting and says he may have been too easy on Pol Pot – the murderous dictator of Cambodia.

Dudman was captured in Cambodia while covering the war in 1970 and spent 40 days as a captive of Viet Cong. Five years later, after Pol Pot’s Khmer Rouge took power, Pol Pot invited Dudman and two other Westerners to Cambodia to see for themselves what life was like. One was Elizabeth Becker, who had covered Cambodia for several years for The Washington Post. The other was Malcolm Caldwell, a radical Scottish lawyer. They were the first outsiders to get visas to Cambodia to interview Pol Pot.

Pol Pot wouldn’t answer questions during their session with him. But that night Dudman was awakened by gunshots outside their guest house. A Vietnamese terrorist threatened Becker, shot at Dudman, who hid under the bed, and then killed Caldwell.

Recently, a special Cambodian court organized to prosecute Khmer Rouge war crimes asked Dudman about his reporting from that era. A lawyer who was questioning Dudman said he seemed to have been easy on Pol Pot. Dudman said he just reported what he saw. But the lawyer’s question haunts him, he wrote in an op-ed in the Post-Dispatch.

Reporting in Cambodia required courage. But the hardest thing for a reporter to admit is he may have gotten a story wrong.

St. Louis media notes

St. Louis TV stations need to be more honest with their viewers. Frequently, they present stories as new that are actually a day or more old. The latest example occurred on KSDK (Channel 5) at noon on June 18. The story was about an incident the day before when two planes began taking off at the same time at Midway Airport in Chicago. Fortunately, a collision was averted. One report said the planes were within 2000 feet (nearly four-tenths of a mile) when they stopped after aborting their takeoffs. But anchor Kay Quinn read, “We have new information at this noon hour about just how serious a near disaster this was.” However, she provided no information that hadn’t aired on the news the night before. Nor did she give any indication as to “how serious it was.” She did not even tell viewers how close of a call it was (or wasn’t). Repeating the story is not the problem. Every station repeats many stories because of all the time they have to fill. The problem comes when viewers are deceived by “sensationalistic” and inaccurate writing.

Channel 5 also needs to show better judgment when severe weather strikes. The station tends to preempt programming any time there is a tornado warning. Sometimes, even severe thunderstorm warnings preempt programming. Earlier in June, meteorologist Mike Roberts said on the air that only about 450 people were potentially impacted by a tornado warning far south of the metro St. Louis area. Yet the station stayed on the air live for more than a half hour. There is no reason for this. It was not even a confirmed tornado, just indicated as a “possible” tornado by Doppler radar. Putting the information at the bottom of the screen will suffice. If many people might be impacted by a tornado, it is appropriate to stay on the air. It has to be a case by case basis. Channel 5 has gone too far. Here’s an idea. Stream weather live to the Internet so that anyone potentially impacted can watch at or on their mobile app. Everyone else can watch the regularly scheduled programs while staying updated with the information at the bottom of the screen.