Post

Owning History

January 23, 2009 ,

Much blog ink has been spilt over HBO's handling of the Inaugural Concert broadcast. Setting aside the omission of Rev. Robinson from the live broadcast, word is that HBO made YouTube remove people's personal recordings of the concert.

The details of this remain scant, but the ongoing implications of such actions are alarming.

The facts of this case are hard to come by. It seems HBO obtained from the Presidential Inaugural Committee (PIC) the exclusive right to broadcast the event for the next 6 months. And when the crowds uploaded to YouTube their own personal recordings of the performance, HBO sent DMCA notices to YouTube. It is not clear what copyright, precisely, is the basis of HBO's notices.

This may be like the Prince/Radiohead/YouTube mess from last year (follow up analysis). There, a concertgoer recorded Prince performing a cover of Radiohead's song, and he posted it to YouTube. Prince issued a DMCA notice; YouTube complied; Radiohead (who held the copyright in the musical composition) wanted it put back up. So Prince's DMCA notices were improper if he could not point to a copyright as the basis for his DMCA notices. (Although he probably could have argued it violated anti-bootlegging laws)

We don't know whether HBO has acquired rights to the underlying musical composition (that could give them a copyright hook to hang their DMCA notice upon). Nor do we know if the personal recordings captured portions of the broadcast itself being shown on the jumbotrons (the content on the screen is another copyright hook).

But that is beside the point. The PIC, the presidential campaign, and the transition team are all non-governmental entities so the works they create are not in the public domain. Even though each is a separate entity, some themes, like not accepting money from corporations and lobbyists, were held in common. The transition team led with the enlightened move to set Change.gov free: content on the transition site was licensed under the freest Creative Commons license, CC-BY-3.0. But PIC dropped this CC theme. PIC's website is not free (in no uncertain terms: “The entire Website is copyrighted.”, “All Rights Reserved”). And now for the inaugural concert, on our freedom highway they built a big high wall with sign painted “Private Property”. This historic event was held openly on public property in our nation’s Capitol. The careful consciousness when licensing that we saw from the transition team has dwindled.

Yesterday we learned that HBO backed off a bit and they won't “object” to people “sharing their favorite moments”; but they retain the right to stop the conversation. Shame won a partial victory. We may share, in small doses, for now.

But going forward, when the telling of history hangs on a whim, might our stories go untold?