Is The Best Defence Really A Good Tay-Tay Song?

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In this day and age, virtually everyone has high quality audio-visual recording equipment right at their fingertips. Our ever-ready mobile phone can record and disseminate information worldwide with the click of one or two buttons. So it’s perhaps no wonder so many get a little bit click-happy nowadays when they find themselves in the presence of the Thin Blue Line.

Increasingly these days, I hear outraged complaints of police officers taking sometimes-vigourous exception to being filmed in the process of confronting and questioning suspects. And not infrequently, the electronic record reveals behaviour not entirely in line with recommended police procedure. Those of us lucky enough to keep our work bloopers behind closed doors may have some sympathy for police whose slip-ups find their way onto YouTube, but most would agree that’s still no excuse. Like the rest of us, police must act lawfully, and nervous suspects keen to ensure all is done to the letter of the law are absolutely entitled to record and publish what’s happening.

Well, most of the time, that is.

Over the weekend, Californian Police Officer, Sergeant David Shelby, found himself at the centre of an international news story when an online video emerged, showing his actions at a Black Lives Matter rally in June. When protestors gathered outside the Alameda County courthouse in Oakland California to decry Jason Fletcher, a former police officer charged with murdering black man Steven Taylor, inside a Walmart store in 2020, Sergeant Shelby confronted James Burch of the Anti Police-Terror Project, directing him to remove his group’s banner. With his camera firmly in hand, Burch questioned why the banner needed to go, and in response, the police officer whipped out his own mobile phone and started playing “Blank Space”, a song by international pop star, Taylor Swift.

“You can record all you want,” said Shelby, “…I just know it can’t be posted to YouTube.”

An act of ingenuity some might say. The laws of copyright prevent people from copying or communicating others’ work without their express permission, and Tay-Tay is no exception. In fact, most video-sharing platforms and social networks use automated systems to flag and remove copyright material automatically, preventing any would-be publisher from sharing their clip.

Unfortunately for Sergeant Shelby, his quick thinking didn’t work. The video was posted anyway, and has now been viewed more than 600,000 times. Moreover, it prompted outrage from free speech advocates around the world, who have expressed deep concerns over the idea that playing copyright music could be used by police as an intentional tactic to prevent people filming their actions and sharing the films online.

As it turns out, Sergeant Shelby wasn’t the first police officer to employ the tactic either. Vice News has cited cases of other California-based officers playing Beatles songs while being filmed, and just last year, Nick Simmons and Adam Holland of Harvard University’s Lumen Project, which studies copyright content removal, reported that a number of videos linked to Black Lives Matter protests were removed for violation of copyright.

Still, when Sergeant Shelby’s music clip was referred to the Oakland Sheriff’s Department, his actions were roundly all denounced by the Sheriff, the official response clearly stating: “We have seen the video and referred it to our internal affairs bureau. This is not approved behaviour. It will not happen again.”

As if we needed an excuse not to play Taylor Swift songs (sorry Tay-Tay fans).

Jonathan Nyst

Queensland Criminal Lawyer, Musician

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