LA Court Abusing Copyright Law To Take Down (Unauthorized) Recording Of Britney Spears Hearing

from the that's-not-how-copyright-works dept

First up, let me be clear: if a courthouse makes it clear that no recording is allowed of a hearing you should not record it. I do think that those policies -- which are quite common in many courthouses -- are bad policy. I think recordings of hearings should be more widely available. But defying court rules is a very, very bad idea. As you may have heard, last week Britney Spears gave an impassioned plea to a court to end a conservatorship that allows her father to more or less control her life. The speech was, apparently, ineffective as the judge denied the request (though the fallout from this mess continues to spiral).

Soon after reports of the speech came out, a recording of the hearing showed up on YouTube -- in violation of the court's rules. If you go to the link now, it says the recording was taken down due to "a copyright claim by Superior Court of California, County of Los Angeles" (takedown first spotted by the Twitter account @beka_valentine).

Also, the court has announced that it's shutting down its remote audio program because someone recorded the hearing:

“Effective June 28, the Court will no longer offer the Remote Audio Attendance Program (RAAP) to listen remotely to courtroom proceedings,” read the announcement, which also detailed the rolling back of other COVID-19 protocols. “The Court implemented this temporary program during the pandemic recognizing there may be abuses of the Court’s orders prohibiting recording, filming, and distribution of proceedings. Widespread breaches by the public in a recent court proceeding highlighted the need to return to in person, open courtroom proceedings, which is a welcome development.”

As that Hollywood Reporter article notes, California courts have rules against recording, and you can face a variety of legal consequences for disobeying:

Under California state and local court rules, no recordings of court hearings are allowed (including by members of the press) without advance permission from the judge in the form of a written order. According to the 2019 California Rules of Court, “Any violation of this rule or an order made under this rule is an unlawful interference with the proceedings of the court and may be the basis for an order terminating media coverage, a citation for contempt of court, or an order imposing monetary or other sanctions as provided by law.”

When asked what is the court’s general policy is on taking action if a proceeding is recorded without permission, L.A. County Superior Court Communications Director Ann E. Donlan said only: “Parties who publish unauthorized recordings of court proceedings in violation of a court order are subject to sanctions and other potential liability pursuant to California Code of Civil Procedure section 1209 and other applicable law.”

But... notice what is not included in the list of potential liabilities? Copyright. That's because there is no legitimate copyright claim by the courts in these recordings. First, as a government entity, it's difficult to think that they can make a legitimate copyright claim. While, technically, the US Copyright Act's prohibition on the government claiming copyright on works it creates only applies to the federal government, other courts have interpreted the prohibition to apply more broadly to other governments as well.

On top of that, it's hard to argue that either there is a legitimate copyright here or that if there were one, that the court itself could claim it. The speech was by Britney Spears, not the court. On top of that -- even with the prohibition on recording -- in the copyright context, there would be a strong fair use defense.

And so I understand why the court doesn't want the recording up there. And I agree that whoever recorded it likely broke the law and could face significant legal liability (if they were tracked down). But, that does not mean that the court can then step in and falsely claim copyright to take the video down. That's copyfraud and abuse of copyright. Just because it gets to the ends that may feel more legit doesn't mean you just get to magically invoke a copyright in a work that you have no legitimate copyright over.

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Filed Under: britney spears, copyfraud, copyright, courts, recordings, takedown
Companies: youtube


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  • identicon
    Anonymous Coward, 2 Jul 2021 @ 6:47am

    to be fair, the denial issued by the judge was issued in regards to an earlier hearing, not the one that's at the center of this issue

    the judge still has to decide on the more recent hearing and related motions

    also yes the copyright thing is bullshit

    reply to this | link to this | view in chronology ]

  • identicon
    MathFox, 2 Jul 2021 @ 7:02am

    YouTube mistake?

    Could it be that YouTube does not have a "taken down due to violation of court rules" banner, so it fell back to the "taken down due to a copyright claim" banner? Or the DMCA form did not allow for another choice than "copyright infringement".

    reply to this | link to this | view in chronology ]

    • icon
      urza9814 (profile), 2 Jul 2021 @ 8:08am

      Re: YouTube mistake?

      I don't think "They didn't have the form I wanted" is a valid defense against perjury....surely there are ways to serve a court order to YouTube even if they don't have an automated system set up to handle it.

      reply to this | link to this | view in chronology ]

    • icon
      That One Guy (profile), 2 Jul 2021 @ 10:19am

      Re: YouTube mistake?

      'Yes I broke the law Your Honor but doing it the legal way would have been too much work' wouldn't fly in court and it definitely shouldn't fly when done by a court.

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 2 Jul 2021 @ 10:53am

        Re: Re: YouTube mistake?

        Yeah, but a court prosecuting a court seems about as likely as a cop arresting a cop. Perhaps, if it ever happened, they could use the same excuse: there's no case law that says this exact specific thing is illegal.

        reply to this | link to this | view in chronology ]

  • identicon
    Pixelation, 2 Jul 2021 @ 7:41am

    It will be interesting to see if the court decides to try and track down the person that uploaded the recording to YouTube. Perhaps they decided to use the copyright angle to see if someone would be dumb enough to come forward and dispute it.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 2 Jul 2021 @ 2:27pm

      Re:

      I don't know... I think it might be amusing to go to court and watch the plaintiff try to claim "actual damages", given that the recording wasn't registered with the copyright office.

      reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 5 Jul 2021 @ 9:22pm

      Re:

      If the person who posted it did it from abroad, the Court would have no jurisdiction outside the United States.

      reply to this | link to this | view in chronology ]

  • icon
    EGF Tech Man (profile), 2 Jul 2021 @ 8:10am

    Was the gallery open to the public?

    Any court session where the gallery is open to the public should have recordings publicly available and those recordings should be public domain and freely available (none of this supporting a private company you have to BUY records from)...Smaller jurisdictions without much funding can still make them available by uploading them to places like archive.org ...

    reply to this | link to this | view in chronology ]

  • icon
    Bill Silverstein (profile), 2 Jul 2021 @ 9:48am

    Is it really illegal?

    Most of the circuits have ruled that generally videotaping or recording the police in the performance of their duties is a first amendment right. How is that different from court proceedings open to the public?

    I can see the issue in limited circumstances where there are threats made and photographs of witnesses used for those threats.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 2 Jul 2021 @ 1:08pm

      Re: Non-Public Courts ??

      American Courts are fundamentally "public" proceedings and the judicial bureaucracy has no constitutional authority to hide them from the public.
      The Courts, most especially, should be directly accountable to the citizens.

      Court restrictions on public access contradict basic democratic principles.

      All court proceedings should be videotaped by the specific court itself and made immediately public.
      Citizens should be free to unobtrusively record any and all court proceedings.

      Of course, government judges and official court officers (lawyers) HATE having their court activities scrutinized publicly -- hence the steady trens toward court access restrictions -- and even outright secret courts and laws.

      reply to this | link to this | view in chronology ]

  • icon
    That One Guy (profile), 2 Jul 2021 @ 10:04am

    Oh look, perjury and attempted copyright theft, committed by a court no less.

    I guess when the system is so easy to abuse and people/groups have gotten away for doing so for so long even the legal system has decided to get in on the game.

    reply to this | link to this | view in chronology ]

  • icon
    ECA (profile), 2 Jul 2021 @ 10:09am

    Question

    was this a personal recording by someone in the court?
    By a family member?
    Or from the court?

    If it was in the courts Storage of data, then it can be theft.
    Personal recording by a person In the court, is personal data unless the judge suggested the restriction Before the recording.
    Family? thats revenge.

    reply to this | link to this | view in chronology ]

    • icon
      Bill Silverstein (profile), 2 Jul 2021 @ 12:10pm

      Re: Question

      In the Los Angeles Superior Court, it is not a suggestion by the judge. It is posted on signs all over the courthouse.

      reply to this | link to this | view in chronology ]

      • icon
        ECA (profile), 2 Jul 2021 @ 5:51pm

        Re: Re: Question

        not what it said above.
        The first case He warned them it was private and no copies.
        Thats the foundation.
        The Judge hadnt done that in the current case.
        But even so, my comment stands, WHO TOOK/MADE the recording.

        reply to this | link to this | view in chronology ]

      • identicon
        teka, 5 Jul 2021 @ 11:30am

        Re: Re: Question

        Does forbidding the recording change the fact that a recording is owned by the person creating it?

        Short of showing the proceedings where the copyright/property has been legally seized, which has it's own problems, just letting a court make the claims they find easiest can't be our system.

        reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 4 Jul 2021 @ 3:37am

      Re: Question

      ECA, you idiot - what part of “Effective June 28, the Court will no longer offer the Remote Audio Attendance Program (RAAP) to listen remotely to courtroom proceedings,” don't you understand?

      reply to this | link to this | view in chronology ]

      • icon
        ECA (profile), 4 Jul 2021 @ 9:42am

        Re: Re: Question

        And the odds that 1 person in 100,000 Listened to it? Live?
        How many people knew of this system? Did you?
        And the judge Didnt restrict it at the beginning.

        And the idea of a free service, that lets you listen to the court cases from remote??
        I wonder if they even needed to signup for it. Otherwise you will never find the persons who listened.

        reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 2 Jul 2021 @ 10:40am

    Isn't it amazing how often copyright is used in a way that has absolutely nothing to do with copyright?

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 2 Jul 2021 @ 6:21pm

    So, the literal courts couldn't bother to issue the correct and obvious order, instead choosing to violate copyright law, since anyone can do that with impunity from one side. Good job.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 3 Jul 2021 @ 1:19am

    You know theres something seriously wrong about copyright when even the courts are abusing it.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 4 Jul 2021 @ 7:27pm

      Re:

      Courts have been complicit in the abuse of copyright law since the beginning.

      There's a reason why copyright enforcers can confidently claim dismissals without prejudice or flee the courtroom once they have their subpoenas.

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 5 Jul 2021 @ 8:46pm

    Someone has probably recorded from YouTube by now, and you do not need a YouTube ripping site to do it.

    There are software programs that record whatever your computer is hearing.

    Using such software to record audio/video from YouTube does not break any laws as long as you do not do it for any kind of financial gain, so don't get me started on the DMCA.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 5 Jul 2021 @ 8:52pm

      Re:

      I used to use that to remove the DRM from purchsased music before it went MP3

      I could hit play on the track and then record on the recording software and a couple minutes later I had a DRM-free track I could use on any device.

      Since I was not doing it for any kind of "financial gain", meaning to make money, I did not violate the DMCA in any way, since the criminal provisions require that you be doing it for some kind of financial gain.

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 5 Jul 2021 @ 9:19pm

    As far as monetary penalties go, if whoever recorded it posted it from abroad, the State Of California has jurisdiction over it.

    The system that allowed court proceedings to be viewed from abroad means that someone, in, say, Hong Kong could record it and post it from Hong Kong, and California would not have jurisdiction.

    California has no jurisdiction over someone not in the United States, when it comes to computers because California law does not apply outside the United States.

    reply to this | link to this | view in chronology ]

  • icon
    IAmNotYourLawyer (profile), 6 Jul 2021 @ 12:00pm

    On top of that, it's hard to argue that either there is a legitimate copyright here or that if there were one, that the court itself could claim it. The speech was by Britney Spears, not the court. On top of that -- even with the prohibition on recording -- in the copyright context, there would be a strong fair use defense.

    This conflates two copyrights at issue. Spears probably owns any copyright to the the text of her speech, I'd guess as a literary work. Any copyright to the sound recording, which is a distinct copyright, could be conceivably be owned by the city/state- certainly not Spears. It's similar to the dual composition-sound recording copyrights in musical recordings.

    So while Spears probably could authorize distribution and copying of transcripts of her speech, a copy of the actual audio distributed by the city is another matter.

    I agree that fair use would probably protect anyone from copyright liability. And it's an interesting question if the court proceeding could be copyrighted at all. Court opinions and state statutes are not copyrightable, see https://en.wikipedia.org/wiki/Georgia_v._Public.Resource.Org,_Inc.

    reply to this | link to this | view in chronology ]

  • icon
    Zane (profile), 7 Jul 2021 @ 2:13am

    I can see there are good reasons for courts not to allow recordings, there's always a balance of being open and privacy, and we need to consider the impact this can have on witnesses willing to testify in court. It sounds like the recording was illegal. It starts a precedent if the courts ignore illegal recordings being circulated, and it's not a very good example for a court to set if it did nothing to prevent this. Is copyright the correct way to handle it (assuming this is accurate), I don't know. But if you object to copyright being used, it's likely this would signal more draconian powers being used in the future. So pragmatically, I would let it pass as an issue. Reporters are free to report in an open court with certain restrictions. Spears is free to send her speech to the media if she so wishes.

    reply to this | link to this | view in chronology ]


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