Posted in music on July 17, 2009

"I appreciate the irony of the DIY site punkcast being taken down by arguably the originator of punk style using entirely establishment means." - Joly MacFie

Richard Hell

"Sorry to say the punkcast YouTube account is currently suspended.

As you may know it contains around 700 clips, mainly of the NYC music scene, but also of local internet related events including public hearings of the NYC Council's Committee on Technology in Government. It has had approaching 3 million views.

YouTube has a policy of suspending accounts of repeat copyright offenders and I just got my 3rd strike.

Almost laughably it was a DMCA takedown from Richard Hell over some footage I shot of him talking about his next record at a book signing a couple of weeks back. I plonked a mic in front of him and told him I was shooting for webcast, The clip was of conversation as I waited for him to start reading. He didn't say anything in particular beyond what went out in his recent press release about the record i.e. it's redubbed version of an old record that he wasn't happy with. I posted it with a link to his pr. Thought I was being helpful. I'd earlier posted a similar clip of him reading from his new book, and his co-author even posted it on his blog.

I've filed a counter-notice and, if and when the account get's re-instated I'll remove the clip..." [Joly MacFie of Punkcast.com]

Joly may not even realize (well he will after reading this) that the clip (or one of the related ones) was even posted on Richard Hell's official site...well IT WAS until this morning when it was removed. It is of course possible that Richard himself didn't do this, but someone at his label, publisher, etc... A peak at his Wiki page reveals associations with "Sire, Warner Bros., Red Star, Matador, and Rhino".

The record that Richard describes in the disputed video is his remake of 1982's Destiny Street ("originally released in 1982 on Red Star Records, and was reissued in 1995 by Razor & Tie"). The album, Destiny Street Repaired (which is public knowledge), will feature new vocal tracks and music that includes guitar work from Bill Frisell, Marc Ribot and founding Voidoid member Ivan Julian. The record will come out on September 1st through Insound (the online store that is also the label in this case).

The rest of the note from Punkcast, (UPDATE: ) AND a letter Richard Hell wrote to Joly in response, below...

Richard Hell at the above-mentioned book signing...
Richard Hell

Note from Punkcast

...I'd had two previous DMCA's recently, collateral damage in YouTube's ongoing war with Warner's and Viacom, both on song publishing. Hot Stuff - Von Iva - Warners Let's Make Love and Listen to Death From Above - Cansei der sei Sexy - Viacom I didn't contest these, altho I did have casual permission from the band who are the composers on the latter.

On the second occasion YT made me check off that I understood copyright.

In one other case where infringement was found through YouTube audio matching - a clip of K8 Hardy karaokeing Joan Armatrading - http://www.punkcast.com/1132/ - the record label allowed it to sit while they collected revenue from ads displayed on the page.

I have, in the past, removed clips by request of musicians not happy with their performance as a matter of course. Normally they just contact me through YouTube and ask.

I appreciate the irony of the DIY site punkcast being taken down by arguably the originator of punk style using entirely establishment means.

Joly MacFie

More than anything this has to be extremely frustrating for Joly who spent countless hours building that account up. We here at BrooklynVegan often embed those videos, and anyone who's gone to more than one live show in NYC or NJ over the years definitely knows Joly is always out there working hard. Hopefully YouTube will just realize their mistake and put the videos back up, or maybe YouTube is not the right site for a collection like that.

UPDATE: Richard Hell's response:

Hello Joly,

I aplogize for taking action that got your YouTube account suspended. I had no idea that when we objected to that one clip it would have that result. I would have tried harder to contact you (instead of YouTube) about the clip if I'd realized that. I think you perform a great service with your Punkcast site and the record of concerts etc. you make. I just thought that clip where I'm talking about the new CD was redundent and unnecessary and confusing (and low quality--hard to hear). I was glad the other one (of me reading, etc., at the book launch) was up--we even linked to it from my site. I just wish you would ask me before you post clips of me. Anyway, if there's anything I can do to support your reinstatement at YouTube, I'd be happy to do it. Please let me know.

Best,

Richard

--

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Comments (34)

Liars Beware!

Posted by David S. | July 17, 2009 11:46 AM

the giant muscle mohawk freak at the negative approach show last year was priceless.

Posted by Anonymous | July 17, 2009 11:48 AM

I just got the following:
====
Hello Joly,

I aplogize for taking action that got your YouTube account suspended. I had no idea that when we objected to that one clip it would have that result. I would have tried harder to contact you (instead of YouTube) about the clip if I'd realized that. I think you perform a great service with your Punkcast site and the record of concerts etc. you make. I just thought that clip where I'm talking about the new CD was redundent and unnecessary and confusing (and low quality--hard to hear). I was glad the other one (of me reading, etc., at the book launch) was up--we even linked to it from my site. I just wish you would ask me before you post clips of me. Anyway, if there's anything I can do to support your reinstatement at YouTube, I'd be happy to do it. Please let me know.

Best,

Richard
========

Unfortunately I think the damage has been done. We'll just have to wait for YouTube to get around to processing my counter-request - which can take up to two weeks.

Posted by joly | July 17, 2009 11:48 AM

Betrayal takes two -- who did it to who?

Posted by Anonymous | July 17, 2009 12:05 PM

Looks like a thoughtful letter - and reasonable too, like where he says "ask me before you post clips". I hope you asked before you broadcast his personal letter in its entirety to you too. It's certainly substantive, and I wish you luck with reinstatement, etc.

Posted by oWhatAtangledWeb | July 17, 2009 12:11 PM

Richard is such a classy guy. I'm not being ironic either. Just read his reply. 99% of big egos, really 99% people in general, would have escalated this when replying (most would never have replied).

Posted by mikemos | July 17, 2009 12:27 PM

So, Richard Hell is basically saying that he fucked up.

Posted by Anonymous | July 17, 2009 1:01 PM

Richard Hell is a good guy.

Posted by Anonymous | July 17, 2009 1:18 PM

I heard he's a HELL of a nice guy.

Hey-o!

Posted by Anonymous | July 17, 2009 1:21 PM

@12:11 While there might be some validity to your idea that all punkcast style DIY public video should be subject to pre-approval from the subjects it's not practical and, I would suggest, a top-down concept that was one of the shibboleths that punk destroyed back in the day.

The ability of the music business to control the public agenda was destroyed as new technology permitted the production of fanzines, badges, mixtapes, etc. Eventually a hybrid compromise was reached which has still yet to be encoded. Savvy artists have come to understand that what's coming up at them from the users is as valid and useful as what's being dumped down. If artists actually were required to approve the 'up' material that very approval would invalidate it's dodgy essence.

User-generated web video, file sharing, blogs like this one, are all vital components of the development of today's popular culture - the development of such which is the original purpose of the foundation of copyright statutes.


Objecting to a clip is one thing, filing a spurious copyright takedown notice is another - particularly in the circumstance where there is no copyrightable 'work' involved.

Posted by joly | July 17, 2009 1:24 PM

you have to question youtube and their policies that they will summarily just delete a huge catalog of vids like that without contacting Joly and getting his side of the story first before they took this action. its like you are guilty before you even have a chance to prove yourself innocent.

I went through this myself Crystal Castles at Studio B concert, and something called "Future Primitive Management". I complained to youtube and never even got so much of an e-mail back, over a one minute clip! Personally I think this is why CC gets so much negative comments, they fucked up a lot of peoples youtube accounts (in addition to all the other crap you read about)

anyway, hoping Jolys account is back up soon...

Posted by Anonymous | July 17, 2009 1:25 PM

Joly, you're the best. I got to speak to you once, though I doubt you'd recall it, but I really love when i log in to youtube and see what great band you've posted quality footage of. Best of luck.

Posted by Anonymous | July 17, 2009 1:29 PM

@11:48 Agreed on 'the giant muscle mohawk freak' - but I can't take credit - that was all Un:Art:Ig's work.

I made the ill-advised choice to shoot from the pit and got totally stomped..

Posted by joly | July 17, 2009 1:29 PM

Like Joly said, getting permissions is not practical, plus the venues will refuse or make you pay money. the thing might have to go back underground. In 40 years people will look and wonder and realize you taped history and show your videos in a museum. thank you joly for doing what you're doing.

Posted by Anonymous | July 17, 2009 1:40 PM

Joly, if you need any support/help in whatever way, please let me know. I'll be first in line. this suspension is a shame.

Posted by UN:art:IG | July 17, 2009 2:00 PM

The taking down of accounts is become more commonplace. It happened to me as well. One guy had 1,000 movie reviews taken down because he cut in bits of the trailer.

It's just a sign that YouTube is becoming less of a user-generated site and more of portal for paying companies to post their videos. It's the only way YouTube will make any money beyond ads.

Posted by MusicSnobbery | July 17, 2009 2:19 PM

any PR is good PR. when people learn that there will be a lot more semi-well know post punk artists out there

Posted by Anonymous | July 17, 2009 2:49 PM

@musicsnobbery

For all the corporate efforts etc it's still true that hosting user-generated video is what YT was founded on and its continuing main role. It functions as the de facto video commons and we have to be thankful that Google stepped in to support it before the big lawsuits came down, and continue to subsidize it at the rate, so it's said, of half-a-bil $ a year. But IT IS the fact that it is the de facto video commons that makes it worth that kind of money to maintain.

The 'safe harbor' provisions of the DMCA were exactly designed to protect such service providers from copyright claims, and YouTube's system - considering the volume of vids posted - is fair.

What's been happening is that, during negotiations with large companies like Viacom and Warners, as a tactic there has been indiscriminate blanket bombing of DMCA takedown notices. There is in the DMCA system little likelihood of penalty for falsely filing a takedown notice, and the fact that anyone on the receiving end can just file a counter put-up claim is seen as fair protection against false claims. The provider has 14 days to re-instate the material. If the claimant wants to proceed they then have to take it to court. If either party has made false claims they could be liable for costs..

The thing to remember that most of this is being done by bots and nobody really cares that much to start involving real human beings and further expense.
In the case of something like your friend's movie review vids, the use of trailers is quite arguably fair use, and, if it was just one or two that got hit, I think he should consider (it may not be too late) filing counter 'put up' notices and try and get the account re-instated. He could just take down the controversial clips and I doubt whether it would go any further.

Posted by Joly MacFie | July 17, 2009 3:52 PM

Joly, as far as I know you are wrong about the use of copyrighted motion picture material, no matter how long or short it is. if one chooses to do so one is bound to get into trouble. even if it is the trailer only, a de facto marketing and promotion item. trailers get used as bonusmaterial on commercial releases, so I wouldn't really start to fuck with that.

Posted by UN:art:IG | July 17, 2009 4:23 PM

Fair Use is fair use whatever the source. It's permitted to quote short segments to illustrate commentary.
http://www.centerforsocialmedia.org/resources/publications/fair_use_in_online_video/

Apart from that I just received the following:

At 04:11 PM 7/17/2009, YouTube Copyright Service wrote:
Hi there,

Richard Hell has retracted its copyright claim with respect to the
following videos:

http://www.youtube.com/watch?v=-_eTEGP47Vk

This content has been restored and your account will not be penalized. For
technical reasons, it may take a day for the video to be available again.

Sincerely,

Celeste,
The YouTube Team

=========

The channel is back and working. I've removed the video Richard Hell objected to.

What I'm now going to work on is getting those other two DMCA's withdrawn.

Posted by joly | July 17, 2009 5:45 PM

fantastic news.

Posted by Anonymous | July 18, 2009 4:54 PM

I discovered this page at Brooklyn Vegan after I'd written YouTube to get Joly's account reinstated (as it almost immediately was, thanks to me rescinding my complaint).

I realized within hours of my original complaint that it had resulted in Joly's YouTube account being suspended, and I immediately wrote him apologizing and offering to help him in any way to get his account reinstated. Which, I have to say, is a lot more courtesy than he showed me, with the way he went public here. He could have written me first (as I wrote him).

I have complicated feelings about artists' rights to their works and their "image." Too complicated to try to go into here. But I have no hesitation in saying that it speaks badly for Joly's whole sense of decency and his concept of rights to privacy for him to publicly print a personal email I sent him. I had sympathy with him, and I'm glad to be able to see the band appearances he videos, but this publication of private email is a giveaway. A person who can do that is in no position to get righteous about other people's stances regarding intellectual property. It's creepy and wrong (and illegal) for him to publish my private message without asking me. He should have paraphrased it or sought my permission.

My point, obviously, isn't that there's anything I said in the email that I wish to hide, but, rather, that Joly, if he were anything like as righteous as he portrays himself, would have instinctively known he should ask me before publishing my private email. This whole article is done in bad faith, thanks to Joly, (and Brooklyn Vegan should remove it) because a simple email to me could have cleared up what happened, which is nothing like the way Joly portrays it.

I was not some arrogant persecuter of Joly and his "free speech" or "rights to public information" or whatever. Periodically we check what there is up at YouTube that features me or my music or writing. Almost all of it is technically illegal. I only ask for something to be removed if I think it is low quality (as Joly's second clip of me at my book launch was) or redundent (nearly identical to something already up). I figure that there's no fighting the trend towards free, unpaid, dissemination of artists' works these days, but I can at least keep the work up to a certain level sometimes. Frankly, it still is painful to me, the way so much of my work is available for free now. The usual interpretation is that musicians and even writers will have to make their living from live appearances in future. I got out of music largely because I wasn't suited to that life. And I thought I'd at least be able to have a little income from my catalog of works, if a few people liked those works. But anyway, it's not a huge deal. Everybody is always having to adjust to new circumstances, and that's what's happening to artists now in all mediums that can be digitized. (I'd be glad if it could be stopped though. I don't deny.)

But Joly's behavior in this, as I describe above, was still out of line.

Posted by Richard Hell | July 22, 2009 8:14 AM

is this true: that it is illegal to publish a letter (document) that is one's personal correspondence? as long as there is no intent to defame or slander the writer of the letter it seems one should be able to do what one wants with one's own possessions?

perhaps Joly should have extended a common courtesy to RH first,
but illegal?

Posted by oldpunk | July 22, 2009 12:12 PM


Well, the fact is - this story went up well before I received the response from Richard. I felt it incumbent to make the response public, as a lot of people were already saying nasty things. His own words seemed the best way.

If you check my YouTube account, earlier in the week I covered an ICANN public hearing on controversial proposals to create Global lists of protected strings that nobody but trademark holders could use in the forthcoming roll out of new top level domains. This had many free speech advocates crying foul. When the videos suddenly disappeared from YouTube under a mysterious 'terms of use' violation conspiracy theories abounded. The use of DMCA takedown notices as a means of censorship, widely practiced by people such as Scientology, is seen as egregious abuse of the process. This was seen as a textbook case of the same. I needed to put out the fire so I went public. I was I admit also a little pissed.

As I mentioned in my note, in all my time shooting/posting video I have only ever had two DMCA notices - both from faceless corporations. Dealings with bands are always conducted on a personal basis. If Richard had contacted me in the first place BV would never have had occasion to publish. From correspondence I've had from him since (and which I've hitherto kept to myself) it is evident that he has not learned from the experience - he intimates that, while letting me off the hook because I'm on "thin ice", he will continue to serve DMCA takedowns on all and sundry that he disapproves of. Fact is, with this 3 strikes rule and Viacom/Warner DMCA blanket bombing - every YouTube user is on thin ice. I'm sure we've all seen great channels go down the (excuse me) tube. Using DMCA notices indiscriminately is just heavy-handed bullying, particularly when aimed at good faith fan contributions, particularly - as stated in my quote that BV used to open the piece - by someone associated with the punk rock DIY ethos.

It is that that makes this news in the first place.

Posted by joly | July 22, 2009 5:43 PM

Yes it is illegal to publish letters without the permission of the sender. It is the writer of the words who owns rights to them, not the recipient of the letter. Imagine if it were otherwise... every time you sent someone a letter you'd be opening yourself up to the public revealing of what might be extremely personal and private thoughts and feelings. J.D. Salinger, for a famous instance, has had to bring legal action to prevent people from publishing letters he wrote them.

I agree with Richard that Joly shows zero sensitivity and "decency" regarding others' rights. It's crazy, not to mention criminal and unethical, for him to expect his subjects to personally ferret out where Joly has exploited them and then write him to request that he cease. Celebrities and artists would have to spend their lives searching for the Joly-types who are illegally and immorally taking advantage. Rather it is Joly's responsibility to get permission first. Or at least to accept without whining and self-righteous posing when his victims take the direct route and write to YouTube or wherever when they discover examples of theft by such as Joly.

Posted by Joe | July 23, 2009 6:51 PM

thank you, Joe. i would have thought just the opposite! actually i was thinking it was only illegal if you published a letter that wasn't addressed to you, or that you didn't own, or was obtained in some nefarious fashion. (or as i mentioned , the Intent was to slander or defame).

i understand where Joly is coming from: fuck the Establishment and fuck the Rules. maybe a little bit of anarchy is a good thing.

on the other hand, i see RH's point of view as well. when you create something, i.e., Art, Music, or whatever you should be rightly compensated for you effort.

don't know what the solution is here, but maybe we should all try to be more civil,
decent and respectful of of one another. as Robert Heinlein said "good manners are the lubrication of a civilized society".


Posted by old punk | July 23, 2009 9:09 PM

Just hold on a minute here. "illegally and immorally taking advantage" ?? "theft" ?? "rightly compensated" ??

What we are talking about here is a brief clip of Richard talking about his forthcoming record. He admits himself that he had no problem with the content he just disapproved of the production values.

And I quoted him saying so.

Posted by joly | July 24, 2009 5:09 AM

"I figure that there's no fighting the trend towards free, unpaid, dissemination of artists' works these days, but I can at least keep the work up to a certain level sometimes. Frankly, it still is painful to me, the way so much of my work is available for free now."

by 'rightly compensated' i was referring to the above quote from RH, Joly. i can't, of course, speak for RH but maybe that was in the back of his mind when he contacted YT in the first place.

I had someone hotlink pics I shot of a Lou Reed show last year less than 24hrs after i posted them. the guy posted the pics on his blog w/o asking me or giving me credit.
really annoying and disrespectful.

the issue here is the 'brief clip' you mentioned. i agree the penalty of removing your account for such a minor indiscretion is excessively harsh.

Posted by old punk | July 24, 2009 9:12 AM

How many people who use bit torrent sites for file sharing still buy the product they repeatedly download for free? I still buy vinyl and CD's too. I like the physical ownership of what I love, and I <3 music most. I can't do politics right now but I'm truly curious if people do that any more. I'm 45 and kinda oldschool lol. It's too much for some people to seed . Sad. I love punkcast! It would have been nice to have this medium back in the day...but I digress. 420 ;)!

Posted by Sister_Midnight | September 22, 2010 5:27 PM

I've noticed that more and more Youtube accounts get suspended and some of these accounts are held by quite famous people. Is there some plan to remove the stars from Youtube or have the stars cross a limit?

Posted by Domain Name | March 4, 2011 9:51 AM

On another note, why would we assume that everybody involved in what came to be known as the punk scene af-ter the fact holds the exact same ethos? An ethos we've come to associate with that scene, again, after the fact?
These people didn't join a cult, or swear on a bible or punk constitution that they'd follow the exact same method of operation; they just came down to the club, and did their own thing.
This idea of the "punk rock DIY ethos" is completely your own.
That's fine, but call it what it is; a spade's a spade.

Posted by F. Sphynx | March 14, 2011 1:28 PM

You tube account is only suspended or you tube video is removed only when we not follow their policies. I have also removed many videos when i post copy right videos.

Posted by Liquid Roof | April 16, 2011 7:01 AM

Wow! What an information shared is? Gorgeous Post u have. when will the next post waiting the same type of information. It proved to be very helpful and informative.

Posted by Jennifer | July 29, 2011 11:49 AM

Richard, I was there, you were nobody. All you are now is a survivor. It should be noted that RH had to disable comments to his website due to an attack by 'vandals'. Thats why he's sorry

Posted by mark | February 3, 2012 6:33 AM

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