Fair Use for YouTube & MySpace Users

NewYorkCountryLawyer writes "A few years back, documentary filmmakers didn't know what copyrighted clips they could safely include in their films as a 'fair use'. Now there's a well-accepted set of 'best practices' that establishes rational, predictable rules. The same folks who brought rationality to the world of documentary filmmaking are about to work their magic in the user-generated online content space, including user-created videos on YouTube and user-created music on My Space. They said: 'Nonprofessional, online video now accounts for a sizeable portion of all broadband traffic, with much of the work weaving in copyrighted material ... A new culture is emerging — remix culture, an unpredictable mix of the witty, the vulgar, the politically and culturally critical, and the just plain improbable ... What's fair in online-video use of copyrighted material? The healthy growth of this new mode of expression is at risk of becoming a casualty of the efforts of copyright owners to limit wholesale redistribution of their content on sites like YouTube, and of videomakers' own uncertainties about the law.'"

Re:Law?

[metaslashdot]

Wikipedia has a pretty good answer. [wikipedia.org]
If it meets the tests then it's fair use. If not, sue.

Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include--
1. the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
2. the nature of the copyrighted work;
3. the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
4. the effect of the use upon the potential market for or value of the copyrighted work.
The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors

About time

[JustJim0183]

I was thinking of putting together some technical podcasts and wanted to Jazz it up a bit with 5 - 10 sec introductory clip.

Being a law abiding individual, I looked into getting a license. What a nightmare! there are restrictions on how often the clip could be played, how many ppl could listen to the clip, etc. In addition to that, there were reporting requirements (I would have to report to the Licensee how many ppl listened to a given clip in a month).

And then there was the expense. For me to acquire an individual license was going to cost thousands of dollars. Some fancy googling and I found a site where I could, in effect, 'share' a licsense for $20 per month but that would only entitle me to 5,000 listener hours (which, of course, I would have to report).

Forget it. Too expensive and too much effort.

Just one real world example of how the lack of a rational fair use policy killed a project

Re:Law?

[zarkill]

This is an interesting question to me, because I work with the pharmaceutical industry and they actually had a very similar problem.

Back in the day, the FDA wrote regulations that were somewhat vague, much like Fair Use guidelines. They said things like "Your drug-making machines must be clean and safe". Sounds good, right? But they never defined exactly how clean was clean, or what "safe" really meant. So factories could go about their business, thinking they were doing everything right, and then be shut down because the FDA decided a conveyer belt was moving too quickly or a few too many dust specks had gathered on a surface.

So they formed industry groups that sat down with the regulators and actually hammered out the details: what factors were the FDA inspectors taking into consideration, what tolerances should they be allowed, what margins of error were there... that sort of thing. That way they had something concrete they could rely on, and not just cross their fingers any time an inspector came to audit the facility.

Maybe this "Fair Use Best Practices" guide is a step in the same direction for people who want to use some portion of a copyrighted work but don't want to pray to the copyright gods that they're not falling afoul of some unexpected judgment.

Re:Whose Responsibility?

[langelgjm]

Google/YouTube hides under the fact that US copyright law puts the responsibility of reporting violation on the copyright holders. The problem is that a copyright holder should not be reasonably expected to scrape all of YouTube and all other similar sites every day/hour to look for violations just to have somebody else repost the video after it is taken down. I believe in fair use, but YouTube just spits in the face of copyright holders by throwing up their hands as if it is completely beyond their control. YouTube doesn't want to invest the time and money to perform their due diligence, but expects copyright holders to do it for them.

I think the responsibility absolutely should lie with the copyright holder. How is it any fairer to expect the host of the material to determine the copyright status of everything that is posted to their site? And how far would you go? Would you have forum moderators scan all posts to determine if the text is copyrighted? That would create an enormous workload, so much so that no one would be able to run such a site.

Also, IIRC, use of material may violate copyright but still be legal. I.E., just because something is copyrighted doesn't mean that it cannot be posted, etc. There is no easy way to determine the legality of posting most works, so how can you expect the host to do this? Leave it up to the copyright holder - then if they care enough to enforce it, they can try.

Re:Law?

[NewYorkCountryLawyer]

Isn't there a legal definition of what is and what is not fair use? Or is it so vague that we have to make up rules and hope the **AA's approve?

No. It has historically been a vague concept, sort of "you know it when you see it". The problem is that the video maker might not be able to get a definite answer until he's spent a couple of hundreds of thousands of dollars in legal fees defending a litigation. And the answer might not be the one he was hoping for.

Which is why it is so important that more predictability and certainty be achieved.