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Formula 1 Management and the Australian Grand Prix Corporation censor spectator videos

| 21 Comments

Update 27 April 2009: I won this case – read the full story here.

The flaccid corporate pricks at the Australian Grand Prix Corporation (AGPC) and / or Formula 1 Management (FOM) have forced Youtube to remove the two videos of the 2009 Australian Grand Prix I posted yesterday, along with the videos posted by many other fans. This is an example of the email many people will have received:

Dear Member:

This is to notify you that we have removed or disabled access to the following material as a result of a third-party notification by Formula One Management claiming that this material is infringing:

2009 Australian F1 GP – grid installation lap turn 5: http://www.youtube.com/watch?v=O1qCmBHJ4tY

Please Note: Repeat incidents of copyright infringement will result in the deletion of your account and all videos uploaded to that account. In order to prevent this from happening, please delete any videos to which you do not own the rights, and refrain from uploading additional videos that infringe on the copyrights of others. For more information about YouTube’s copyright policy, please read the Copyright Tips guide.

If you elect to send us a counter notice, please go to our Help Center to access the instructions.

Be aware that there may be adverse legal consequences in your country if you make a false or bad faith allegation of copyright infringement by using this process.

Sincerely,
YouTube, Inc.

It’s not Youtube’s fault. The issue is the result of antiquated perceptions about managing content from the billionaire dictator Bernie Ecclestone who controls F1.

The 2009 terms of entry (45kb PDF) to the Australian Grand Prix state that:

16. Without limiting any action available to AGPC pursuant to the Australian Grands Prix Act 1994 (Vic) or any amendment thereof, it is a condition of entry to the Event that:

(a) a person cannot make or reproduce or use any film or other form of moving picture, still pictures, photographs or any sound recording or any of them of the Event or any part of it (Footage) for profit, gain, public advertisement, display or for any other purpose except for the private enjoyment of the person making the Footage, without the consent of AGPC, FOM and / or FOA; and

(b) if a person makes or reproduces or uses such Footage of the Event or any part of it with or without the consent of AGPC, that person must on request by AGPC assign, in writing, all copyright and all intellectual property in the Footage to either AGPC, FOM and / or FOA or their assignees as directed by AGPC.

I have a number of things to say about this:

  1. It is not clear whether section 16 of the Australian Grands Prix Act 1994 (Vic) overrules the federal Copyright Act 1968 (where state and federal law is contradictory, federal law prevails), which would allow me make and post the videos under fair dealings provisions (non-commercial reporting of news or current events).
  2. I would argue that by allowing me to enter the grounds with a camera, the AGPC implicitly gave me permission to use it to photograph and video the event, and would know that this video may be published online as this is a common and widespread activity.
  3. Until I receive a request from the AGPC to assign to it copyright and intellectual property rights in the content, it provisionally still belongs to me.
  4. Therefore, AGPC or FOM cannot legitimately ask Youtube to remove the content it claims it owns when it has made no effort to verify its ownership of the content.
  5. The proper process would be for FOM to contact Youtube users who publish videos and ask them to include a “© FOM” notice on the video. FOM should develop guidelines and publish them on their website about how amateur content producers can create, share and publish ‘their’ F1 content.

I will be filing a counter notice with Youtube disputing the right of FOM to demand that my videos be removed. The AGPC and FOM have not followed due process and have not allowed natural justice to ensue. They use their wealth and power to bully their loyal and enthusiastic fans.

Amateur photos and videos posted free on the net for free consumption are no threat to the copyright or intellectual property rights of FOM. Viewing free amateur content is not a substitute for paying to view FOM managed content (advertising supported free to air TV, pay TV, DVDs, etc).

These circumstances were discussed two years ago by the F1 Fanatic:

Instead of wasting their time stopping the sports fans from enjoying F1 in a way that does not hurt FOM one iota, they should be working on offering them a high quality, high resolution F1 broadcast over the internet. I’d certainly pay good money for it, because I for one am sick of ITV’s abysmal coverage. (Except for Martin Brundle).

Ditto Channel 10 for cutting off the driver interviews from their live broadcast. You suck! The BBC coverage with Brundle was no better or worse than the ITV coverage from previous years, but I look forward to downloading a HD torrent of the race to watch without the crap Australian advertisements ruining the race. I still have not seen Raikkonen’s crash because it occurred during an ad break, so when I got home from attending the race to watch my digital TV recording of the crash, I could not see it. Channel 10 fail.

FOM could publish the best amateur content on its website and build an online F1 community. But they are stuck in the us and them corporate control model of media. They desperately need to learn about 21st century online social media. The only thing FOM has to gain by its archaic and draconian attitudes and behaviours in relation to the distribution of amateur content is the disdain and contempt of millions of people.

On a final ironic note, I wonder how long it will take the AGPC and FOM to find the videos I posted on Youtube of the 2008 Australian and Singaporean F1 Grands Prix, which have been live for 12 months and 6 months respectively without being censored?

21 comments

  1. Looks like Ecclestone wants to charge for pics, vids, sounds. If it weren´t for the air, sound wouldn´t be possible… so, Ecclestone wants to make us pay for the air we breath while we are at the racetracks? The spacesuit industry is gonna rocket.

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  2. How did you know this was the topic of my Arts Law lecture this week, Brian? Very useful indeed as a case study!

    I read over the Terms of Conditions and the Australian Grands Prix Act 1994, and I think (although my knowledge of law is very basic) that you’d probably win against AGPC/FOM in this matter.
    Although some contracts can be verbal, in some circumstances they have to be written, for example transfer of land. And transfer of copyright. And even though the terms of conditions may be part of the ‘contract’ you are entering into with AGPC to enter the Grand Prix, it is probably not sufficient for that to constitute a written contract to assign over your copyright of your intellectual property created whilst in there, especially since you are simply buying a ticket, not signing a legal document.

    Section 21 of the Terms and Conditions states
    ‘Patrons acknowledge and agree that any part or parts of these Conditions of Entry which contravene the law of the relevant jurisdiction and are not enforeceable (or parts or parts thereof), are severable and do not invalidate the remaining conditions.’

    I would take that as an admission of the non-validity of their claim for your copyrights.

    Section 35 of the Grands Prix Act 1994 states
    ‘ (1) During the race period in respect of a year, a person must not, without the consent of the Corporation, make, for profit or gain or for a purpose which includes profit or gain, at or from a place within or outside Albert Park any sound recording or television or other recording of moving pictures of a Formula One event or any part of a Formula One event.’

    So that’s clear, but you haven’t done it for profit or gain, so they have nothing against you!

    I very much hope you take action against these goons because of the implications on intellectual property if no one says or does anything. They do not have the right to automatically own our intellectual property and they shouldn’t confuse the public into thinking that they do.

    Good luck!

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  3. Good luck. Corporate media vs user generated content is something I am also covering in my Degree. I will be following this with great interest.

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    • Thanks – if it helps here’s the entire text of my counter notification email to Youtube:

      YouTube, LLC
      Attn: YouTube DMCA Counter-Notification
      901 Cherry Ave.
      Second Floor
      San Bruno, CA 94066
      Fax: 650.872.8513
      Email: copyright@youtube.com

      I write to lodge a counter notice against a false, malicious and vexatious complaint from Formula One Management that the material I posted infringes their copyright. Under Australian copyright law, their claims (and any associated claims from the Australian Grand Prix Corporation) are without foundation.

      Youtube user name: indolentdandy

      The videos are:

      2009 Australian F1 GP – lap 1 turn 5 – http://www.youtube.com/watch?v=7BIeloRoc7A

      2009 Australian F1 GP – grid installation lap turn 5 – http://www.youtube.com/watch?v=O1qCmBHJ4tY

      They were recorded on Sunday 29 March 2009 at the Australian F1 GP in Melbourne Australia.

      The 2009 terms of entry (45kb PDF http://grandprix.com.au/site/_content/document/00000578-source.pdf) to the Australian Grand Prix state that:

      16. Without limiting any action available to AGPC pursuant to the Australian Grands Prix Act 1994 (Vic) or any amendment thereof, it is a condition of entry to the Event that:

      (a) a person cannot make or reproduce or use any film or other form of moving picture, still pictures, photographs or any sound recording or any of them of the Event or any part of it (Footage) for profit, gain, public advertisement, display or for any other purpose except for the private enjoyment of the person making the Footage, without the consent of AGPC, FOM and / or FOA; and

      (b) if a person makes or reproduces or uses such Footage of the Event or any part of it with or without the consent of AGPC, that person must on request by AGPC assign, in writing, all copyright and all intellectual property in the Footage to either AGPC, FOM and / or FOA or their assignees as directed by AGPC.

      It is not clear whether section 16 of the conditions of entry can overrule the federal Copyright Act 1968. Normally in Australia, where state and federal law is contradictory, federal law prevails. Under the federal Copyright Act 1968, I would be able to make and post the videos under fair dealings provisions (non-commercial reporting of news or current events).

      Therefore it is likely that section 16 of the entry conditions is void in this instance. Section 21 of the entry conditions implicitly acklowledges this when it states that:

      “Patrons acknowledge and agree that any part or parts of these Conditions of Entry which contravene the law of the relevant jurisdiction and are not enforceable (or part or parts thereof), are severable and do not invalidate the remaining conditions.”

      I would argue that by allowing me to enter the grounds with a camera, the AGPC implicitly gave me permission to use it to photograph and video the event, and would know that this video may be published online as this is a common and widespread activity.

      Section 35 of the Grands Prix Act 1994 (http://www.austlii.edu.au/au/legis/vic/consol_act/agpa1994247/s35.html) states that:

      “(1) During the race period in respect of a year, a person must not, without the consent of the Corporation, make, for profit or gain or for a purpose which includes profit or gain, at or from a place within or outside Albert Park any sound recording or television or other recording of moving pictures of a Formula One event or any part of a Formula One event.”

      My purpose in making and publishing the video was to report on the event as a citizen journalist. I am a high profile Australian blogger and citizen journalist who operates on a strictly non-commercial basis and I publish using a Creative Commons Attribution-Noncommercial-Share Alike 2.5 Australia License. I have been featured in the 2008 Technorati State of the Blogosphere report (http://www.technorati.com/blogging/state-of-the-blogosphere/brands-enter-the-blogosphere/).

      I believe my publication of these videos is allowed under fair dealing provisions in the Australian Copyright Act 1968 (for interpretation see http://www.copyright.org.au/pdf/acc/infosheets_pdf/G079.pdf).

      Until I receive a request from the AGPC or FOM to assign to it copyright and intellectual property rights in the content, it provisionally belongs to me.

      FOM has made no effort to claim ownership of the content I have produced. It therefore has no legitimate claim to ask Youtube to remove the content.

      The AGPC and FOM have not followed due process and have not allowed natural justice to ensue. They use their wealth and power to bully their loyal and enthusiastic fans.

      The proper process would be for FOM to contact Youtube users who publish F1 videos and ask them to include a “© FOM” notice on the video.

      I will accept service of process from the person who provided YouTube with the original copyright complaint or an authorised agent of such person.

      I have a good faith belief that the material was removed or disabled as a result of a mistake or misidentification of the material to be removed or disabled.

      In fact, it is not a mistake – it is a deliberate misinterpretation of Australian copyright law and obvious corporate bullying from a powerful international organisation against an individual. The behaviour is unlawful and unethical.

      I look forward to receiving your response.

      Dr Brian Ward

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  4. Agreed about Channel 10′s coverage. They missed Raikkonen’s crash and the only replay of it, and the restart of the race after the safety car. The broadcast ended with the Australian presenters talking, instead of going to the press conference.

    In fact, Channel 10 put in a special effort for the Australian GP. Foreign races do not have their practice or qualifying shown, and judging by the time that the Malaysian race is being broadcast, are once again going to be delayed several hours.

    Even on the new Channel One, the race is being delayed for the AFL. All the while, SC10 is advertising channel One during the race,which isn’t available outside the capital cities.

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    • Yes, I was disgusted to find that they did not use Ch1 to show the full press conference and more after the race. They did not have the excuse of having to cut to go the the news on Ch10 like they used to. Fail. Ads. Fail. Ch10 loser Australian commentary team. Fail. From the start of 2008 Ch10 was showing the qualifying, but why it and the race are not live on Ch1 is a mystery to me. Time delay. Fail. Full BBC race torrent coming down now from Mininova :-)

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  5. Does it not say on the back of your ticket that filming F1 is not allowed? I does on the back of the ticket for Silverstone.. and has done for the last 10 years. You can’t go into a music gig, or football match and record events, so why should you be allowed to in F1?

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    • Not in Australia. The back of the ticket merely states that “Cameras, audio and video recorders may not be permitted” [entry to the track]. My point is that the AGPC and FOM are relying on a faulty application of Australian state vs federal law to enforce their prohibition of F1 user generated content. An application of the law could override their bullying behaviour, which, I argue, has no legal foundation and is merely the action of a malevolent corporation.

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  6. For sure you win this in court. I suspect using google video would be easier – youtube has gone to the dogs with their over zealous interpretation of copyright.

    Been on myspace or youtube lately – notice most of the music has been ‘deleted by artist’.

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    • Google owns Youtube and Google video is or has been phased out, so that’s not an option. Uploading content created by other parties is a very different issue to uploading content you have created yourself. The removal of the content you mention is legitimate under law; the removal of user generated content I am talking about is, I maintain, not lawful under Australian copyright law.

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  7. Heard that there was actually an amateur video of Trulli going off the track and Hamilton passing him during the safety car which was on Youtube before it was removed by FOM. FOM sucks.

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  8. Two of my videos were taken down from YouTube as well. Though my 08 ones are still there.

    Its ironic that in the past FOM have actually used YouTube fan footage to make rulings on driver infringements and now they take them off hmmm

    BTW Great site, im glad i found it.

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    • Thanks – I’m thinking of trying to find a copyright lawyer who may want to take this on pro bono. It could be a fascinating high profile case.

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  9. Hi Brians,

    First of all congratulations on getting your videos reinstated. Great achievement for all us F1 fans who get our material removed for no good reason.

    Have you got any further on finding a lawyer to represent you? It would attract a lot of interest, especially if your speak to the Press. I’m sure the newspaper that uncovered Max Mosley’s sadomasochistic tendencies would gladly cover your case with excelent publicity!

    Regards and good luck!
    Dan

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    • Because the Youtube issue was resolved far quicker than I expected, I have not made enquiries about other legal action and it now seems unnecessary. Youtube are rather vague in their documentation about how they deal with copyright violation notices and counter notices, and I only learned about the time frame in the process of doing it.

      The F1 blogs covering my victory will get the story widely read by F1 fans who are active online, and they are who I did it for (and myself obviously). Mainsteam press coverage is not very important to me.

      I don’t write and publish for a general tabloid audience, and aim to reach an intelligent, educated inner city audience who shares some of my cultural, aesthetic and political interests.

      I think Max Mosley was treated appallingly by the tabloid press, and relate far more to him and his private pleasures than I do the pathetic moral hypocrites masquerading as publishers and media executives.

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  10. Just a thought – if you film something for yourself, then you own the copyright to it, period. The only way someone else can become the copyright owner is for you to transfer the copyright to them, which generally has to be done in writing.

    So, even if your video is in breach of the terms and conditions, it’s still your copyright and FOM cannot claim it’s a copyright infringement. And, even though the terms say you have to transfer the copyright to FOM on request, you don’t have to comply with that. In which they would have to sue you, but still the copyright would belong to you unless a court ordered it to be transferred.

    In other words, the fact that your video is “unauthorised” is irrelevant to the question of copyright.

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    • This is part of my argument and as I won the matter FOM are presumably now aware that they cannot bully spectators anymore.

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  11. Hi Jake,

    Just a point, you cannot film music events and artistic shows because they have copyright in them. There is no copyright in an F1 race or a football match. They can contractually exclude you from entering the premises if you have a camera, but if they do not manage to do this, any filming you may do is owned by you and is not a copyright infringement. It is often misrepresented by large companies that you cannot film races or sporting events. This is simply not true! If you can find a way, that material of course is yours (until they kick you out).

    Anna

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    • And the F1 does not bar cameras from being taken into the premises, so they can’t do anything other than bully people afterwards.

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