Dad who live-streamed his son’s birth on Facebook loses in court | Hacker News Reader

Dad who live-streamed his son’s birth on Facebook loses in court

arstechnica.com

104 pointsmorehuman76 comments

Good to see a win for fair use. Don't broadcast publicly if you dont want it to be public.

Tell that to the NFL.

Everyone has broadcasting rights. This man should as well.

Honest question: Do you think Facebook's ToS grants him exclusive rights to anything Published or Broadcast to the General Public by way of their platform?

There is this to the contrary:

" When you publish content or information using the Public setting, it means that you are allowing everyone, including people off of Facebook, to access and use that information, and to associate it with you (i.e., your name and profile picture)"

Thanks for posting that - I was genuinely curious and I'm fairly certain what you quote is legally supportable against the personal broadcast rights notion in this case. The "newsworthy" threshold in Fair Use almost isn't needed, but certainly seems to help.

I don't have any expectation of Copyright Ownership on whatever I broadcast on Periscope...different rights might be entailed (e.g. endorsement, use of likeness) but that public visible thing is hard to reconcile in this instance...and I think that's totally okay.

Yes. he's the creator and it's up to him as a matter of legality to decide where and how his creations are distributed. Much like what the NFL does. (regardless of how easy it is to pirate something)

Everyone holds the copyright to their work immediately during and after its creation. There's no filing like you'd have to do with a Trademark.

Putting in on a medium that's FCC regulated means he may have some recourse.

To be clear, you don't have to register copyrights in order to have a copyright in a creation, but you do have to register copyrights in order to sue for damages.

Strictly speaking no, you can still sue for economic damages and win, but registering lets you get statutory damages which are punitive in nature, up to 3x the economic damages. Economic damages are limited to what you'd have been owed if they licensed it at prevailing rates.

Sorry, yes. I had it backwards.

He has the same rights everyone else does, copyright on his creative works, including this video. That's not the issue at hand.

The issue at hand is: Is if Fair Use to use 22 seconds of a 45 minute video to report on newsworthy topic?

The answer is yes. Showing select excerpts of copyrighted work for the purposes of news and commentary is a classical Fair Use example.

The reverse of your statement is also true:

Everyone has right to assert a Fair Use exemption. This news agency should as well.

This is like the famous assertion that the rich as well as the poor are free to sleep under bridges. To ignore the relative financial strength of the two actors is inequitable.

Regardless of who the actors are, this is classical Fair Use. The reason you don't see the opposite very often (major media company's materials being used in a Fair Use manner) is that company's lawyers are smart enough to see it's Fair Use, and that their case would be thrown out of court almost immediately.

I believe most sports and/or news channels show NFL highlights using the same "fair use" argument as was used to show a portion of his Facebook video. They can't re-broadcast the entire game, nor would it be appropriate for a news broadcast to simply re-broadcast the entirety of a Facebook Live stream.

It will be interesting to see whether the lawyers in the recent cases where people live-streamed their crimes can keep the video out of evidence in their criminal trials.

On what grounds?

I have no idea. That's why it would be interesting. Lawyers are pretty creative sometimes.

I was curious about the idea and did some Googling. Apparently some people have tried to use copyright to exclude evidence against them at trials. Citing a document at a trial doesn't usually reduce it's commercial value so Fair Use is typically the rule. The one exception in the page I found was when a lawyer commissioned the copyrighted work for one trial and then tried to introduce it in another trial without the permission of the copyright holder.

http://www.trademarkandcopyrightlawblog.com/2014/08/when-can...

>Don't broadcast publicly if you dont want it to be public.

Ah, to live in the 90's again. I remember when the motto was "Don't share anything on the internet that you don't want to be public."

Isn't that still true?

(And Streisand effect is '00s, not '90s)

Streisand is giving something more attention by trying to hide it/cover it up. Different thing altogether.

I'm talking about how people were raised in the 90's and early 00's. In the late 00's and turn of the decade in the 10's we saw a drastic turn against protecting individual privacy, with the rise and fall of various social media sites. We went from telling people to never share their full names to asking them to enter them on their profiles [0].

There is a cost/benefit of this. Many people on HN share their names/LinkedIn accounts/position in the company they work for. This allows them to network or have authority when they speak on a subject. OTOH, they throw away their privacy.

[0] http://i.imgur.com/h7kZcxF.png

Yeah, and especially "don't ever, ever put your real name, phone number, or location into ANY online system".

It was the way to preserve the benefits of anonymity and free speech without opening the door to (much) serious abuse. Then people realized they could make money promoting their "personal brand" online, and companies realized they could get people to tell them everything about themselves and sell that data, so common-sense behavior that permitted a very free environment to thrive with few negative externalities was destroyed by the profit motive and... here we are.

Some of us still hold to those basic protective measures. I see it as the difference between using ATM's, and walking all the way home while flashing your cash at everyone who walks by.

I practice psuedonomity instead of anonymity. "Nadya Nayme" is just a play on "Not a name". It allows me to have an identity while speaking my mind and hiding my real self from the general population. I don't think anonymity against a state power is realistic, so I don't consider it a part of my threat model. Twitter users organizing to harass my employer into firing me is much higher on my list of concerns. Especially because I've had people threaten "they would if they could."

Some people still value privacy. But most only value privacy when it is convenient - and are willing to throw it away for more convenience.

I'm exactly the same way, and as you say, I don't expect that my antics would give a state actor even a momentary pause. I'm more concerned about doxxing, or other low-level junk than jackboots kicking down my door. It is a little inconvenient, but it's worth it.

I do the same thing. No one ever seems to pick up the play, so in a way I've developed a second full name that works reasonable well.

A profit motive is a pretty basic part of human nature and my memory of the 1990s was that a lot of people were demanding a reliable way to shop online without all the tedious business of printing out order forms on paper or trudging to the nearest store.

Lest you think I'm making excuses, I've never run any kind of online business unless you count occasionally profitable eBay transactions in a niche used-goods market.

was?

> Apparently, the father-to-be realised his film was streaming publicly on social media about 30 minutes into recording, but decided to leave it that way.

It would be one thing if he never realized he was broadcasting publicly. Once you realize something is public and decide to leave it up, I think you lose any moral authority to claim others shouldn't have any fair use claim to your public work.

I disagree. Here's a moral (not legal) argument: he was streaming something for free to share with friends and family, and decided that he was OK to share it with interested parties that were interested to witness a live birth.

ABC is a corporate entity that exploited the footage for purely commercial purposes, as a way to attract attention to their news broadcast so they could sell advertising in the middle. This is a fundamentally different purpose from sharing it freely, and seeks to privatize what was previously given away unselfishly.

I'm not going to spend time looking up individual cases now, but I can think of several examples of big media companies suing over equivalently short excerpts of their broadcast product were used by someone else, eg that time Fox demanded the producers of a documentary fork over some $$$ because one of the interviews took place in a room where a TV was displaying an episode of The simpsons in the background of the shot.

So the moral argument rests on the vast disparity in wealth between the two entities. An individual human of modest wealth shared something freely in a spirit of generosity, and a aggregate entity of vast wealth exploited it for its commercial value but selfishly kept all the benefit to itself, callously ignoring the financial burden to the parents that typically entails upon childbirth. A firm run on more moral principles would have split the proceeds of the commercial activity with the creators.

Large media companies are not very ethical; news at 11. How is that relevant to whether he should have a claim on it?

Well, equity used to be a concern of courts and was important enough to be mentioned in article III.

I think there are two issues here which we should separate. Yes, in an adversarial court system such as the one we have in the US, a severe resource imbalance between litigants tends to influence the outcome more than it should. Justice should be based on the facts of the case, not on the litigants' ability to work the system.

But as far as fair use specifically is concerned, I think fair use rights need to be protected and even expanded. I agree that Fox should not have been able to prevail in the example you mentioned. I don't agree that ABC's short clip of the video on question should not qualify as fair use.

But I suppose you could make the argument that imposing a narrow view of fair use on some large corporations could persuade them to lobby for broader protections. As things stand, I expect any lobbying going on about fair use is entirely on the side of restricting it.

It's become common practice for news organisations to just lift video and pictures from people's social media without permission, attribution or payment.

Perhaps an effective technique against this is to make sure there's copyrighted music playing in your livestream. (Or does that get auto-killed by content watermarking?)

And I have the feeling that if you would use public content from said news organizations without permission, things would turn out rather differently.

I dunno - youtube is filled with clips from newscasts...

Is the content featuring those clips actually being monetized by the uploaders?

Yes, there are numerous examples of "news channels" on Youtube which report on things that more mainstream sources have said or reported on already. Some examples would be Philip DeFranco, Scarce, etc.

This issue was a plot point in an episode of 30 Rock.

"Meanwhile, Tracy Jordan (Tracy Morgan) pushes Liz Lemon's (Tina Fey) buttons as usual by not showing up to rehearsals and leaving work to do something insane. However, Tracy's demeanor instantly changes when a camera crew starts to follow him around for his wife's new reality show. He starts to act responsible and respectful in front of the cameras, as not to ruin his chances of winning an Oscar. Liz has the idea to use Tracy's fake good behavior to get him to do things he blew off in the past, knowing that he can't refuse while taped. This works until Tracy finds a loophole. When Liz tries to get Tracy to do more things, he refuses and insults Liz to the melody of "Uptown Girl" by Billy Joel. Since the song is copyrighted, any footage containing that song can't be used. Therefore, Tracy's irresponsibility wouldn't be aired on the show."[0]

[0] https://en.wikipedia.org/wiki/Operation_Righteous_Cowboy_Lig...

> Perhaps an effective technique against this is to make sure there's copyrighted music playing in your livestream.

You committing a copyright violation isn't going to stop news organizations from doing something that is textbook fair use, except by getting your content pulled from the distribution platform for the violation before the news organizations sees it.

>This week’s ruling can therefore be taken to mean that if you use social media in a newsworthy way, it could be seized and shared, however personal the content.

Good. This isn't a terribly high bar to clear, and it's directly related to public sharing / public performance type issues. Not even close to violating privacy rights like with a mistaken email forward - this was done by the person, intentional or unintentional, they opened it up.

I'm glad to see Copyright still have merit in the court system when the case being brought - this one - clearly doesn't meet the standards for the purpose and intent of the law. Ex-post-facto-cash-grab still not strong legal strategy.

The last paragraph mentions that apparently child protective services took the baby after a day because the father was alleged to have a history of domestic violence.

I was shocked when I read that. Does that actually happen? Is it common in the US that the authorities take newborn babies from their mother?

Remember that infanticide is a leading cause of death of infants, and accidental injury is another.

https://en.wikipedia.org/wiki/Child_Protective_Services#Chil...

> On September 30, 2010, there were approximately 400,000 children in foster care in the U.S. of which 36% percent were ages 5 and under. During that same period, almost 120,000 birth to five year-olds entered foster care and a little under 100,000 exited foster care.[41]

So they're mad that the stream they shared publicly was seen by the public?...

It was rebroadcast on TV. Try doing the same by posting a broadcast TV show on the net...

If you post 22 seconds from a 45 minute TV show[1], adding commentary on how it was in some way significant, I suspect you could make a reasonably strong case that it constitutes fair use (assuming the use of the footage is even challenged, which seems somewhat unlikely for a 22 second clip).

[1] "ABC used a tiny fraction of the footage—22 seconds from the original 45 minute Video", per https://arstechnica.com/wp-content/uploads/2017/02/Kanongata...

Do a 22 second highlight clip from an NFL game and see how far you get without their consent.

If you do it just to show the video, that's not fair use. That's just copying. If you do it to highlight something newsworthy that you're currently reporting on? That's fair use. That's exactly what the court ruling says, that it's fair use because something newsworthy was happening.

Read the article: CPS took their baby away.

But if they hadn't shared the video publicly, that person likely wouldn't have seen the video and wouldn't have reported them to CPS. If you've got any kind of legal problems, you should probably be a little more protective of your privacy.

If you read the comments below the article, the reason CPS was called was because someone recognised the couple from an earlier case. In 2015, they both were apparently arrested after blowing up a shed in their backyard while attempting to make "honey oil" (hash oil made using a solvent, typically butane or propane). Dome's kids (at the time) were taken away by CPS after the incident. Both Dome and her (now) baby-daddy were arrested, along with some other person.

Sure, but my point is that it's more complicated than "mad because FB streamed the thing they were streaming."

Am I the only one that thinks that taking a baby away from their mother one day after birth because of a domestic violence accusation by a third party against the father (and denied by him) is over the top?

That might be over the top. Does the US publish these court cases? It would be interesting to see what the case actually is.

Don't forget that infanticide is a leading cause of death of children under one Accidental death is another, and some of those are because the parents need help and support.

We have a situation where a third party has made an accusation of domestic violence, nobody has yet been convicted, the father denies it, and CPS takes one day to take the baby away from its mother? I would hope it would take more than an accusation from a potentially disgruntled ex-partner to cause this trauma on a mother and a baby.

No. Babies should be taken out of dangerous situation, but third party accusation should not be enough. Likely to harm the kid on itself.

I agree that that babies should be taken out of dangerous situations, but was there any evidence that the baby was in harm? How could this possibly be determined by CPS one day after the birth? How much damage is done to the baby and mother by removing the baby from its mother.

If this is SOP for CPS imagine how much damage a vindictive ex could cause?

Looks like you're both on the same page. "...but third party accusation should not be enough."

Normally I would assume they had followed up and ensured they were not just accusations, but a confirmed history.

But, this is CPS we're talking about. They take a lot of kids out of a lot of homes for a lot of sub-par reasons.

I can’t imagine much investigation could have been done in one day.

You don't know if they already have a file on him.

EDIT: Don't they have to go in front of a judge and persuade the court that nothing else will do?

Assuming the accusation was made in the past then yes they would have a file on him, but he appears to not have been convicted of the offence. I can’t see how it would have been possible to have had the case heard in court given CPS was unaware of the situation until the live streaming and took the baby one day later.

As someone with children I would hope it would take a little more than an accusation from a potentially disgruntled ex-partner to have CPS to swoop in and remove my children from their mother.

First of all this is likely to be a temporary removal to address immediate risk while an investigation and court case is ongoing. In England this could be voluntary, but would need to go in front of a judge if the parents did not agree to it. There's a reasonably high bar to do this, because of the child's convention rights.

Also, I can't speak much about the US system, but in the UK it's possible to not be convicted of a crime and still have your children removed for that crime. (I'll find an English case that illustrates this later).

This is because criminal courts use "beyond all reasonable doubt" and family courts use "balance of probabilities". (Yes, it's weird. There are some extra protections in place because of this. Removing children is a measure of last resort and should only happen when nothing else will do.)

> I can’t see how it would have been possible to have had the case heard in court given CPS was unaware of the situation until the live streaming and took the baby one day later.

In the UK there are emergency applications for temporary removals, and long drawn out cases for other removals. Judges are happy to refuse unless the standards have been met, even if the parents are difficult people.

EDIT: very roughly: here's a case where the father was accused of sexually abusing his children; he was prosecuted for it and acquitted; the family court had a "finding of fact" session and said that he did in fact do it and child protection followed on. http://www.bailii.org/ew/cases/EWFC/OJ/2016/B95.html

There is a huge difference between a court using the balance of probability in a case of sexual abuse and a third party accusation made against the father for domestic abuse and the CPS swooping in and removing the baby from the mother one day after birth.

Well, we seem to be talking past each other at this point.

You seem to think this is a permanent removal based only on a single 3rd party allegation.

I'm telling you that didn't happen. It's not a permanent removal; and they had more information than that.

No I don't think it is permanent, I just think it should never have happened without a serious investigation.

I find it horrifying. Newborns need to bond with their mothers. Keep them both under observation if you must. Separating them is cruel.

In the Facebook terms of use it says:

"you grant us a non-exclusive, transferable, sub-licensable, royalty-free, worldwide license to use any IP content that you post"

...in addition to:

"When you publish content or information using the Public setting, it means that you are allowing everyone, including people off of Facebook, to access and use that information, and to associate it with you (i.e., your name and profile picture)."

This story shouldn't surprise anyone here, but I can understand that the general public doesn't fully understand the implications of using a free platform to host/display their private information.

That's gross and egotistical. For events like birth, privacy is what makes them special. Too much vanity in social media.

Could we change the link to a better article, like https://arstechnica.com/tech-policy/2017/02/dad-who-live-str... ?

The article on thememo.com leaves out key information, such as the fact that ABC broadcast only 22 seconds of the 45 minute video.

The linked article also leaves out the fact that somebody recognized the mother and called CPS on him (for her history of domestic violence), while the Ars one includes it.

It gives a different view to the incident.

Edit: Recognized the mother, not the father.

Actually, they recognized the father, it seems:

> Someone from a past relationship had recognized Kanongataa on Facebook and reported to CPS that he had domestic violence allegations against him. Kanongataa denies those allegations.

The accuracy of the information it does include also seems somewhat suspect. For instance, it includes:

> But most would understand why Kali Kanongataa didn’t want his child’s birth aired for all to see

But according to http://www.mamamia.com.au/live-streamed-birth-by-accident/ (linked from the ArsTechnica article):

> The Californian dad says he had only initially wanted his family in Tonga to be a part of the experience but once he realised [the video was publicly viewable] he decide to keep going.

> Kanongata'a said that "for a second” he hesitated before leaving it for all to see.

Sure. Url changed from http://www.thememo.com/2017/02/17/facebook-live-law-facebook.... Thanks!

It's best to email hn@ycombinator.com with these requests because then we're sure to see it. I only saw this one randomly.

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