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.'"

Law?

[Odin_Tiger]

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?

Re:Law?

[zarkill]

These guidelines tell you what to consider, but they don't explicitly quantify or define anything, so in the end you really are just guessing and hoping you don't get sued anyway.

For instance, who judges what the "purpose and character" of the use is? I might think my usage of a copyrighted work is educational and with good purpose, but the owner of the work might disagree. There's nothing outlining specifically what is and isn't a good purpose or character; only a couple of suggestions of things that might qualify.

Or how much of the "amount and substantiality" used is acceptable? The law doesn't say "you can use 10% but no more", so it's still a guessing game.

And it's not always possible to judge what the effect on a potential market will be. Some people say sharing music increases the market for that music, while the industry claims huge losses from the same act.

So these are things to take into consideration, but they aren't really answers. The only thing you can do is try to think about these guidelines and hope for the best.

Re:Whose Responsibility?

[bidule]

Google/YouTube hides under the fact that US copyright law puts the responsibility of reporting violation on the copyright holders.

How is that different from the non-eWorld? How does YouTube videos compare to fake Gucci bags or CDs?

If a second-hand CD store sells illegal copies, is it the store owner's fault? Same thing for stolen goods. If he bought them in good faith, you can't really put the blame on him.

An even closer example: should a flea market owner verify that every stall rented contains only genuine goods? Or should it be the copyright owner's job to pay someone to make the rounds.

You cannot ask for stricter controls because it is the Internet.

Re:Whose Responsibility?

[Opportunist]

YouTube just spits in the face of copyright holders

That's allright. Copyright holders spit in the face of their customers.

The problem is that the fronts have been entrenched to the point where meaningful discussion is near impossible by now. Both sides, the content industry and the content users, would rather see the other side sink than give them an inch, thinking that giving an inch leads to getting a mile taken.

And for a fact, both sides are right in that assumption.

Also, the content industry is quite wary of having copyright laws examined in the "light of recent development". It would invariably bring topics to the table like the length of copyright, which has today no longer the same reason to be near infinite that it was 200 years ago (when the better part of 5 years could pass between conception and publishing, especially in countries that had heavy censorship where you could wait 2 and more years for clearance from the censuring body alone).

The primary problem remains, that neither side actually wants "mutually acceptable" copyright terms.

Re:Whose Responsibility?

[Relic of the Future]

You, sir, are either a troll or a fool... or perhaps a shill.

The laws in question aren't some 1820s carry-over into the modern era, but the DMCA, passed, what, 12 years ago? Your assertion that it's "too hard" for copyright holders to police their own work is unsupported, and absurd in consideration of your demand that YouTube police EVERYONE's material. If a copyright holder can't tell what is and isn't placed fairly on YouTube, how do you expect YouTube to tell? That's why the law was written as it is, assigning blame to whoever uploaded the content, not the provider of the content-delivery-platform.

As it stands, ALREADY your poor copyright-cartel members (and merry pranksters) are abusing the law to demand take down of LEGITIMATE fair-uses of content. If anything, the law should be relaxed more, replacing the immediate take-down requirements with a grace period, allowing the offending user to contest (or acquiese) to the take-down request.

The REAL issue here is one of societal benefit; since that is, constitutionally, the reason copyrights exist. And the advantages to society of fast and open communications (be it by posts to Slashdot or video post to YouTube) FAR OUTWEIGHS the "damages" of having a few extra seconds more of some cartel-owned clip than fair use would allow floating on YouTube for a few weeks before the owner notices.

Copyright does not exist to wring the most dollars out of the most "consumers"; it exists to encourage the creation of arts for the benefit of society. YouTube is a net benefit to society.

Re:the problem IS the law

[Opportunist]

You put the finger right on the problem. Copyright law was not meant to reward the middleman between creator and consumer, but the creator. Though this is not true for all countries. The US have shifted creator protection to content owner protection, and this is usually not the creator in today's world.

Earlier, studios held artists in their stranglehold with their more or less monopoly in production means. Who had the money to buy that ass expensive studio equipment? Who could afford pressing records? They could easily press musicians into unfavorable contracts, due to their monopoly on production means.

This has changed. Today, anyone can create music in studio quality, at home. So their monopoly model has changed. From production to promotion. They don't have the monopoly anymore on production tools, but they had (and still have to some degree) the monopoly on promoting even the crappiest junk into the tops of the charts.

That monopoly has to be broken. YouTube is a start, but YT alone won't do it. The charts still only count sales and that is unfavorable for indie artists. Maybe it's time to start a chart page that takes other things into consideration. Don't know what, though.

Re:Law?

[cpt kangarooski]

If you need specificity, then get a specific exception added on to the Act. Fair use is meant to be incredibly vague, in large part to help it respond to changing conditions. Fair use originated in the 19th century; could they have anticipated something like Betamax time-shifting? There's no reason why every use must be fair or infringing, but that doesn't mean that we should ruin fair use by trying to make it specific.

Re:Whose Responsibility?

[Speare]

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.

In the past, the big publisher could/would only prosecute the violator if they were able to find out about the violations; in essence, if the violations were big enough and actually cost the publisher some honest-to-capitalism bottom line, then they would get stomped with hefty fines. ObDisney: A brick and mortar storefront in Queens selling thousands of VHS tapes of Bambi for a buck a pop would get prosecuted quickly, while it would be very rare for a daycare with a painting of Mickey on its walls to get prosecuted.

In today's world, the big publisher has MORE opportunity to find SMALLER infringements, and wants to continue wielding the big prosecution stick for EVERY one of those piddly-ass violations. Yet they still want third-parties to help them police the world for THEIR property. ObDisney: Not only do daycares that made Mickey murals get shut down under massive legal and financial threats, but so do otherwise perfectly normal teens who post personal lipsync-Beauty-and-the-Beast-songs videos onto community pages.

The huge fines were designed from a time when it was expected that only 0.0000001% of the actual piracy would ever get found to be prosecuted, and found only because it was a real and egregious dent in real sales. Now that the web exposes so much of the casual ways that trivial amounts of copyrighted material becomes woven into the experience that is culture, corporations are all drooling at the chance to win huge fines from thousands or millions of little sources, regardless of actual damages inflicted.

Re:Whose Responsibility?

[bidule]

You are perfectly right, but I think you are conflating the container with the content. OTOH, I am conflating mixes with bland copies. But it is extremely difficult to map YouTube into real-world examples where the law and ethics are well explored.

When a store owner buys back a used CD, he will just look at the container - jewel box and disc. He will not play the content to validate it. If a child porn ring uses fake CDs of obscure band as exchange material, the store owner will not realize he has illegal material in his hands. Yeah, a pretty contrived example, I know. But you get my drift.

In a similar manner, YouTube could validate the title and refuse to post material that seems infringing. But we know how well web filtering software works, there would be too many false positives for this to work. As a further refinement, YouTube could demand formal declaration by the poster that this material is not infringing. This would make it an easy day in court for the copyright owner.

But they don't have my sympathy, nor will they gain it. They traded the right to ask for such protection in exchange of making decryption tools illegal. They got what they deserved for trying to kill fair use. Using DMCA to fight DMCA is the nicest form of civil disobedience there is. Have a nice day.

Now, let them renounce DRM, revoke DMCA, and maybe I'll let myself be bought to forget it all and allow them . My price will be reducing copyright duration to something reasonable, though. They get the protection they deserve, we get the public domain we deserve.

As a side note, I wouldn't mind copyright extension beyond reasonable. But that extension should cost an exponentially unreasonable fee.