By: Matt McCarthy
A series of troubling videos have surfaced regarding three interactions in Beverley Hills, California between activist mrcheckpoint and the Beverley Hills Police Department. During these interactions, the police played copyrighted music such as ‘Yesterday’ by the Beatles and ‘Santeria’ by Sublime. Mrcheckpoint had three separate experiences filming Beverly Hills officers playing copyrighted music and it is unclear if this is a common tactic employed by Beverly Hills officers or isolated incidents. Copyrighted music playing in a video is a pressing issue for content creators like mrcheckpoint because of 17 USC §512, enacted in 1998 as part of the Digital Millennium Copyright Act (DMCA).
Copyright, a form of intellectual property law, protects original works of authorship including literary, dramatic, musical, and artistic works, such as poetry, novels, movies, songs, computer software, and architecture. If a media platform such as Instagram, YouTube or Facebook hosts content that uses copyrighted material without permission, the media platform can then be liable for extreme monetary penalties.
The DMCA was passed to primarily grant safe harbor for online platforms and limit their liability for any copyright infringement that might occur on their platform by users. Under section 512, content sharing websites must establish notice and takedown procedures to promptly remove content with copyrighted material to protect themselves from being liable to the copyright content owner. Many sites, such as Instagram where mrcheckpoint was live-streaming, have automated filters, which detect copyrighted music being played and take down the stream, preventing users from viewing it. Additionally, footage with copyrighted music in the background cannot be uploaded because online service providers are required to block access to content that features copyright violations.
The police ‘weaponizing’ music can become an extremely powerful tool which could prevent people from viewing and spreading videos of police interactions. Combined with many of the instances of police brutality that spurred the Black Lives Matter movement, this is an extremely worrying trend for those that want to keep police officers accountable during interactions with citizens. This questionable tactic also brings up the question of whether or not police are violating camera operators’ First Amendment rights to free speech. There are no express rights in the Constitution, or beneficial Supreme Court decisions affording citizens the right to film police officers while they are on duty, but several federal courts of appeals have ruled that filming police is indeed a constitutional right protected by the 1st Amendment.
The 1st Amendment protects freedom of speech, the press, assembly, and the right to petition the Government for a redress of grievances. The question of whether or not a police officer is violating the camera operator’s 1st Amendment rights is a complicated one. The police officer is not technically preventing the camera operator from exercising free speech or disseminating the video online, it is the media platforms that host the content that are taking down and preventing the video from being spread.
The issue is the police are knowingly playing music, which is relatively certain will trigger a copyright violation and force any content hosting site to take the video down, thus indirectly censoring the camera operator. Under a strict reading of the 1st Amendment, it seems that the police are not violating 1st Amendment rights, however if a case were brought to court then the Supreme Court could rule that this kind of activity is impermissible and violates citizens’ 1st Amendment rights.
A solution that does not require a Supreme Court ruling could be Fair Use outlined in section 107 of the Copyright Act. Fair Use is a legal doctrine that allows content creators to use copyrighted materials without permission in certain instances. Four factors are used to evaluate Fair Use: purpose and character of the use, including whether the use is of a commercial nature or is for nonprofit educational purposes; nature of the copyrighted work; amount and substantiality of the portion used in relation to the copyrighted work as a whole; and effect of the use upon the potential market for or value of the copyrighted work.
Each Fair Use claim is evaluated on a case-by-case basis, but the police’s use of copyrighted music may qualify as Fair Use. The videos may be viewed as educational, with the copyrighted music not being a prominent part of the video and the song is not played in full, one would likely be able to make a claim for Fair Use and post the video to content hosting platforms. Claiming Fair Use, however, does not solve the problem of having a stream taken down by an automated copyright system, so Fair Use is not a perfect solution.
Overall, this ‘weaponization’ of copyrighted music should alarm citizens looking to hold police accountable for conduct on duty. Though it is understandable for a police officer to not wish to be filmed while they are working, police officers are public servants that must be held accountable for their actions. Officers must be prepared that concerned citizens may try and film interactions with police.
Hopefully, higher ranks in the police force begin advising their officers to stop playing copyrighted music in interactions to prevent an expensive legal battle and further damage the police’s reputation. If officers continue this kind of behavior, then hopefully content sharing platforms will be able to work with content creators like mrcheckpoint to not take down their videos and streams if the video qualifies as Fair Use. Additionally, the use of copyrighted music to indirectly ‘censor’ content from media platforms makes one wonder if it can be used by other public officials to prevent the dissemination of videos they don’t want the public to see.
Student Bio: Matt McCarthy is a second-year law student at Suffolk University Law School and a Staff Member on the Journal of High Technology Law. Prior to Law School, Matt received his Bachelor of Arts Degree in International Relations from Boston University.
Disclaimer: The views expressed in this blog are the views of the author alone and do not represent the views of JHTL or Suffolk University Law School.
