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Years of Howard Stern’s interviews with Trump now gone after DMCA takedown

Dalek

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Mar 5, 2014
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Years of Howard Stern’s interviews with Trump now gone after DMCA takedown



A Washington, DC startup that recently posted an audio archive of years’ worth of Howard Stern’s interviews with Donald Trump, all before he was elected president, has been hit with a Digital Millennium Copyright Act takedown notice and a cease-and-desist letter.
On Wednesday afternoon, roughly 48 hours after it was put up, the audio trove has been removed from YouTube and SoundCloud. For now, the transcripts remain on Factba.se, a website created by the startup FactSquared.

Factba.se published a total of around 15 hours' worth of audio—exclusively of the minutes when Trump was on The Howard Stern Show—gathered from nearly 25 years of shows, starting in 1993 and ending in 2015.

"We were in the process of putting [the audio files] on our own server, but then FedEx showed up and that was the official stop," Bill Frischling, the CEO of FactSquared, told Ars. "So we had a good conversation with our attorneys today, and we’re going to be reaching out to [SiriusXM’s attorneys] pretty darned soon. We’ve already exchanged brief notes, everybody is hoping to get it resolved amicably. Our goal is to preserve the record. At least right now, this is the only public version of a massive, quarter-century trove of interviews."

Under the DMCA, intellectual property holders (such as SiriusXM, which airs The Howard Stern Show) can send a takedown notice asserting a violation of copyright. Most large companies, including Google (the owner of YouTube) will comply with such requests.


Because FactSquared only published the portions of the Stern Show that involved Trump—and not wholesale copies of shows—the startup could make a solid fair use claim under US copyright law. Fair use is the portion of the law that allows portions of copyrighted works to be re-published without the copyright holder’s permission, subject to particular conditions, including news commentary, satire, and others.
"Based on the facts you’ve presented, Factba.se would appear to have a strong fair use argument," Jonathan Band, who helped author the DMCA back in 1998, told Ars by e-mail. Band is a law professor at Georgetown University.

"What [Factba.se] would need to do is submit a counter-notice to YouTube/SoundCloud under the DMCA, asking for the content to be restored. YouTube/SoundCloud likely would then repost the content if SiriusXM didn’t file suit against Factsba.se for infringing copyright by posting the content in the first place."

Attorney Kit Walsh of the Electronic Frontier Foundation agreed.

"Factba.se would have a very strong fair use case based on the newsworthiness of the recordings and the analysis that they did," she told Ars. "The recordings are the data that underlies their findings, and reproducing the recordings is essential to the credibility of their analysis and the ability of others to reproduce and build upon that analysis."

However, law professor Eric Goldman of Santa Clara University told Ars that the situation might not be as clear cut. He called this particular set of facts a "hard case for fair use."

"What would make it easier [is] if there was more commentary or context around the material," Goldman said, explaining that simply posting the transcript and some basic keyword searches and analysis may not fall under the commentary portion of fair use.

If Factba.se had done what other news sites have already done—written entire articles about revelations from this trove—it could be an easier claim.

"I think they could qualify for a fair defense," Goldman added. "I think it’s still possible, but it’s harder than another set of circumstances."

I think these need to be out there. As a long time Stern listener who has heard nearly all these interviews - I was aghast when I heard that this man was running for president. He's made no secret of being a total creep throughout the years.

I wish Howard would re-air these segments now but he seems afraid of Trump now. It's weird.
 

alr1ght

bish gets all the credit :)
Sep 25, 2005
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Sounds more like a corporate decision rather than Howard dictating it. It's not like they're gone forever, just not centralized on a single easy to access website.
 

androvsky

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Sep 19, 2007
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I mean it seems as if this group was just rehosting his episodes on their site without permission. I can see why it would be considered a hard case for fair use.

It wasn't entire episodes though.
Because FactSquared only published the portions of the Stern Show that involved Trump—and not wholesale copies of shows—the startup could make a solid fair use claim under US copyright law. Fair use is the portion of the law that allows portions of copyrighted works to be re-published without the copyright holder's permission, subject to particular conditions, including news commentary, satire, and others.
"Based on the facts you've presented, Factba.se would appear to have a strong fair use argument," Jonathan Band, who helped author the DMCA back in 1998, told Ars by e-mail. Band is a law professor at Georgetown University.

edit: It was probably a larger percentage of each episode than would normally be allowed, but given he's President now the news commentary angle kicks in also. I'm not saying it's a slam dunk, but it sounds like a reasonable case.
 

norm9

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Nov 21, 2014
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Doubt it has any thing to do with Stern. Should be readily available as historical record. Never forget our history and heritage and whatnot.

I think these need to be out there. As a long time Stern listener who has heard nearly all these interviews - I was aghast when I heard that this man was running for president. He's made no secret of being a total creep throughout the years.

I wish Howard would re-air these segments now but he seems afraid of Trump now. It's weird.

Yeah, Howard was right all along. He knew trump would hate the work, the responsibility, the transparency, the lack of getting to kick it with celebrities instead of boring diplomats and world leaders, etc. Figured he'd have Trump's ear since he's been friends for decades.
 

Volimar

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Jun 11, 2011
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I don't think the bolded really matters. Those chunks of interview are probably a lot longer than what fair use usually covers. Stern probably doesn't have anything to do with it, but he should put the interviews up somewhere himself, unless he's embarrassed now about them.
 

rjc571

Banned
Jun 23, 2012
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They must be desperate to hide the interview where Howard asked Trump what 17 x 6 equals and Trump got it wrong
 

Giolon

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The DMCA isn't really what allows them to do this, but copyright law.

I'd certainly believe that once someone becomes President though, anything relating to them should be de-facto become public domain, even if it was created prior to their Presidency.

That doesn't make any sense. If someone authors a book about someone who becomes the president, including interviews with him or her, you aren't entitled to the entire contents of that book for free just because they became the president later on. Heck, even if the book were written after they became president, the same would hold. Excerpts could still be used as fair use. So, no, that position doesn't hold up.
 

FyreWulff

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That doesn't make any sense. If someone authors a book about someone who becomes the president, including interviews with him or her, you aren't entitled to the entire contents of that book for free just because they became the president later on. Excerpts could be used as fair use.

The need to hold a President accountable overrides the need for someone to make money. "Public interest" already exists as a concept.
 

MattKeil

BIGTIME TV MOGUL #2
Aug 4, 2004
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That doesn't make any sense. If someone authors a book about someone who becomes the president, including interviews with him or her, you aren't entitled to the entire contents of that book for free just because they became the president later on. Heck, even if the book were written after they became president, the same would hold. Excerpts could still be used as fair use. So, no, that position doesn't hold up.

The public interest position almost certainly would hold up. The question is whether the company has the money to fight it in court.
 

Aselith

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Mar 17, 2008
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The need to hold a President accountable overrides the need for someone to make money. "Public interest" already exists as a concept.

Explain how making money for work you create keeps the President from being accountable? Certainly people can discuss the work and information therein without directly posting the full or nearly full source information.
 

HappehLemons

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Jul 26, 2013
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Fuck the DMCA.

I hate ignorant outrage like this, it seems misplaced and stupid because people don't understand how things work. Please explain why we would be better off with out them if they need to fuck off.

Am I incorrect in thinking the DMCA is just a channel to enforce copyright laws. I've utilized DMCA takedowns in my life with success, and they've seemed like a helpful system even for smaller guys like me.
 

Giolon

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The need to hold a President accountable overrides the need for someone to make money. "Public interest" already exists as a concept.

The public interest position almost certainly would hold up. The question is whether the company has the money to fight it in court.

In this example, if you’re an author, the notability of the subject does not override your right to make a living from your work. As long as the work is still in print, you can't reasonably expect a judge to come out and just declare the entire thing public domain because you think it’s relevant to “public interest”. If that were true, every book written on every president would be legally, freely available to the public and we all know that’s not the case.
 

Dalek

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They must be desperate to hide the interview where Howard asked Trump what 17 x 6 equals and Trump got it wrong

What about when he berated AJ Benza in the air and mocked him for “stealing” his girlfriend?
 

Enzom21

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[I think these need to be out there. As a long time Stern listener who has heard nearly all these interviews - I was aghast when I heard that this man was running for president. He's made no secret of being a total creep throughout the years.

I wish Howard would re-air these segments now but he seems afraid of Trump now. It's weird.

He doesn't say shit about Trump which is very odd.
Any hint of anti-semitism(real or imagined) usually fires Stern up, but he is strangely silent when it comes to this piece of shit.

Robin clearly hates him but she seems to be biting her tongue as well.

What about when he berated AJ Benza in the air and mocked him for ”stealing" his girlfriend?

I think there were a few times when he talked about how hot his daughter is as well.
 

eyeball_kid

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Jul 25, 2011
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howard probably doesn't want to piss off trump because he may want to hang with him when he gets out of jail

Fixed that for you.

I don't know if there's case precedent, but it seems like these interviews should be part of the Library of Congress. There is a clear public need here to have these interviews preserved and given public access to.
 

rjc571

Banned
Jun 23, 2012
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What about when he berated AJ Benza in the air and mocked him for “stealing” his girlfriend?

Or the appearance he made after an extremely liquored/coked/heroin'd up Artie roasted him at the Friars Club, where Trump first said that Artie was very funny, then they played a clip from the roast where Artie made fun of his failing casino business and Trump immediately turned on him and called him unfunny and a failure
 

entremet

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Dec 6, 2008
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He doesn't say shit about Trump which is very odd.
Any hint of anti-semitism(real or imagined) usually fires Stern up, but he is strangely silent when it comes to this piece of shit.

Robin clearly hates him but she seems to be biting her tongue as well.



I think there were a few times when he talked about how hot his daughter is as well.
Trump and Stern have been longtime friends and Stern is notorious loyal, especially to those who have shown him loyalty. He obviously doesn’t agree with Trump’s politics, but his silence seems more in part due to his long term friendship.
 

Dark Ninja

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Nov 3, 2006
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Howard always goes after anyone who uploads his show. Youtube channels who upload his stuff get taken down every couple of months or so before another pops up. He doesn't really care about Trump one way or the other they have been mildly shitting on him lately. Howard doesn't care about the world as long as he can stay inside play chess, paint, save some cats to keep Beth from leaving and jerking off to babysitter porn every so often.
 

Rentahamster

Rodent Whores
Jun 26, 2007
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This is fair use, but I think they should add on more commentary or try to do something to bolster the transformative nature of their work.
 

Dalek

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Mar 5, 2014
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Howard always goes after anyone who uploads his show. Youtube channels who upload his stuff get taken down every couple of months or so before another pops up. He doesn't really care about Trump one way or the other they have been mildly shitting on him lately. Howard doesn't care about the world as long as he can stay inside play chess, paint, save some cats to keep Beth from leaving and jerking off to babysitter porn every so often.

Sadly this is all true. I remember when Howard got all fired up about W. Bush and came out against the administration. That fire seems to be gone now.
 

Enzom21

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Jun 6, 2004
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Howard always goes after anyone who uploads his show. Youtube channels who upload his stuff get taken down every couple of months or so before another pops up. He doesn't really care about Trump one way or the other they have been mildly shitting on him lately. Howard doesn't care about the world as long as he can stay inside play chess, paint, save some cats to keep Beth from leaving and jerking off to babysitter porn every so often.

Incest porn now.
 

Emperor_Uriel

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Jun 4, 2011
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Sadly this is all true. I remember when Howard got all fired up about W. Bush and came out against the administration. That fire seems to be gone now.

Howard is the radio version of The Simpsons. He had an amazing run that lasted longer than any of his contemporaries, but has ended up becoming the sort of person he relentlessly mocked during his early years.

Sal and Richard are the only worthwhile element of the show that's still (barely) intact.