WEBVTT - The Trump Tapes

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<v Speaker 1>A d m c A claim against a startup forced

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<v Speaker 1>the company to remove more than twenty years of interviews

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<v Speaker 1>featuring Donald Trump from their website. What's the story behind

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<v Speaker 1>the controversy? I'm Jonathan Strickland and this was tech stuff

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<v Speaker 1>Daily between. Donald Trump participated in nearly fifteen hours of

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<v Speaker 1>interviews during his various appearances on the Howard Stern Show.

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<v Speaker 1>A website called fact based that's f A C T

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<v Speaker 1>B A dot s E, which is the property of

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<v Speaker 1>a startup company called fact Squared, created an audio archive

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<v Speaker 1>of those appearances and made it available online. The website

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<v Speaker 1>wasn't hosting the audio itself, instead, it was linking from

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<v Speaker 1>sources like YouTube and SoundCloud. The company had begun to

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<v Speaker 1>upload the audio files to a company owned server, but

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<v Speaker 1>was interrupted in the process. On September two, thousand seventeen,

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<v Speaker 1>Sirius XM Radio sent a cease and assist letter to

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<v Speaker 1>fact squared and filed a takedown notice under the d

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<v Speaker 1>m c A. YouTube and SoundCloud pulled the audio from

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<v Speaker 1>their services, leaving the archive filled with dead links. D

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<v Speaker 1>m c A stands for the Digital Millennium Copyright Act.

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<v Speaker 1>Under US law, the owner of intellectual property can file

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<v Speaker 1>a claim against others who are using that property without authorization.

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<v Speaker 1>In other words, if you own some form of copyrighted work,

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<v Speaker 1>such as a film or a song, and someone else

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<v Speaker 1>makes use of it without clearing it with you first,

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<v Speaker 1>you can file a claim against that person. Many platforms

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<v Speaker 1>like YouTube will remove or de activate unauthorized copies upon

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<v Speaker 1>receiving such a notice. In the case of someone either

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<v Speaker 1>trying to distribute a work belonging to someone else or

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<v Speaker 1>passing off the media as their own work, it seems

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<v Speaker 1>like a pretty clear cut case. If the material doesn't

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<v Speaker 1>be long to you, you don't have the right to

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<v Speaker 1>do that. But there are other cases that fall into

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<v Speaker 1>more fuzzy categories. Sometimes you may want to make use

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<v Speaker 1>of an existing work in order to comment upon it.

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<v Speaker 1>For example, you may wish to include a film clip

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<v Speaker 1>from a movie you're critiquing, or maybe use it as

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<v Speaker 1>an example to illustrate a particular point. Or you might

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<v Speaker 1>want to include samples when you're talking about the works

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<v Speaker 1>as a matter of news reporting. These cases fall under

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<v Speaker 1>a category called fair use. Fair use allows people to

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<v Speaker 1>include portions of other people's work. You don't have to

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<v Speaker 1>hold the copyright to a novel in order to include

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<v Speaker 1>a passage of that novel for the purposes of commentary.

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<v Speaker 1>Fact Squared could attempt to make the argument that their

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<v Speaker 1>archive of interviews falls under the umbrella of fair use.

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<v Speaker 1>If a court agrees, then fact base can go back

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<v Speaker 1>to hosting the archive. Therein lies the rub. Whether a

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<v Speaker 1>particular instance falls under fair use isn't something you figure

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<v Speaker 1>out ahead of time. It only shakes out in a courtroom.

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<v Speaker 1>The defendants responsibility is to demonstrate that their use of

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<v Speaker 1>the intellectual property meets the criteria for fair use. In

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<v Speaker 1>the United States, those criteria include four factors. The purpose

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<v Speaker 1>and character of how you use that original material is

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<v Speaker 1>the first component. Are you using it to make some

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<v Speaker 1>sort of point? Are you critiquing the original work? Are

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<v Speaker 1>you relying upon it for analysis or illustration? Are you

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<v Speaker 1>parodying the original work and expanding upon its original expression

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<v Speaker 1>and meaning. The second factor is the nature of the

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<v Speaker 1>copyrighted work itself. In general, courts are more lenient about

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<v Speaker 1>fair use if you're taking from nonfiction sources like biographies

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<v Speaker 1>or histories. Then if you lift large portions from works

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<v Speaker 1>of fictions such as novels or movies. The third factor

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<v Speaker 1>is how much of the original material you're actually using.

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<v Speaker 1>Referencing a line or a paragraph from a book is

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<v Speaker 1>different from including six chapters of material. Generally speaking, the

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<v Speaker 1>more of the original work you use, the more challenging

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<v Speaker 1>it is to argue fair use. There is, however, no

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<v Speaker 1>magical minimum amount you can stick to and avoid the

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<v Speaker 1>problem altogether. So if you've heard that you can include

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<v Speaker 1>fifteen seconds or less of any song and that's totally fine,

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<v Speaker 1>that's not actually based on law. The fourth factor is

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<v Speaker 1>the effect of your use of the material upon the

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<v Speaker 1>potential market for that original work. That means, if your

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<v Speaker 1>publication could affect the sales of the original work in

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<v Speaker 1>a negative way, it'll be harder to argue that this

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<v Speaker 1>is a case of fair use. Even if you are

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<v Speaker 1>certain your use of someone else's copyrighted material meets the

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<v Speaker 1>criteria for fair use, the issue won't come up unless

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<v Speaker 1>there's a claim against your example. At that point, the

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<v Speaker 1>issue might move into a court where you could argue

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<v Speaker 1>that your use meets the requirements laid out by the

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<v Speaker 1>fair use definition. It would still be up to the

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<v Speaker 1>court to decide if in fact that was the case.

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<v Speaker 1>Getting back to the Donald Trump interviews, fact Squared might

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<v Speaker 1>have a difficult time defending their archive live. They were

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<v Speaker 1>posting the interviews largely without commentary or analysis, meaning their

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<v Speaker 1>use was not in any way transformative. While they didn't

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<v Speaker 1>include entire episodes of the Howard Sterns Show, they did

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<v Speaker 1>include most of the interviews in their entirety. It may

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<v Speaker 1>turn out that all parties will find an amicable approach

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<v Speaker 1>to archiving the material, which one could argue does have

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<v Speaker 1>historical value. At the very least, it provides a great

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<v Speaker 1>example of how complicated intellectual property and fair use really are.

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<v Speaker 1>To learn more about technology and how it relates to copyright,

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<v Speaker 1>as well as every other tech topic imaginable, check out

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<v Speaker 1>the Tech Stuff podcast. The show publishes twice a week

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<v Speaker 1>and is a long form deep dive on all things tech.

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<v Speaker 1>That's all for me for now, See you next time.