Fair Use for YouTube & MySpace Users 100
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? (Score:5, Insightful)
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Your fair use "rights" extend only as far as you are able to afford to successfully defend, and your immunity from prosecution only as far as a litigant's unsureness of victory and willingness to prosecute. DMCA takedown notices give them instant gratification at practically no cost and puts the burden back on you to reassert your rights.
IANAL
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If it meets the tests then it's fair use. If not, sue.
Re:Law? (Score:5, Insightful)
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.
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Wikipedia has a pretty good answer.
If it meets the tests then it's fair use. If not, sue.
That's not just the Wikipedia answer, that's what the US Code says in 17 USC 107 [cornell.edu]. It's a standard that gives the judiciary wide latitude to decide what is or is not fair, but gives frustratingly few bright line rules as to what is allowable and what is not. A person's good faith determination won't do it -- even the opinion of a lawyer won't. The best a copyright lawyer can do is give you his or her best guess as to what a court might decide. If you'd like that changed, I suggest you speak with Congress
Congress can't solve this. (Score:2)
In most cases, you can apply a little judicial precedent and common sense to figure out if something is fair use or not. And in the cases where you can't, you have a decision:
- Get a license
- Infringe and be prepared to defend your fair use rights should the copyright holder object
- Don't use the material.
It would be nice if there were nice, easy to follow rules - b
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Another thing to consider is that there generally aren't music clips sampled (best practices are around 30 seconds
Re:Law? (Score:4, Informative)
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:Law? (Score:4, Insightful)
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I think the Best Practices guide is a good thing, and there's also no reason why it would need to be set in stone. continuing with my pharmaceutical industry analogy, the guidelines from the FDA and industry groups are always
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We also have the problem that many movie studios (and record labels) don't believe in fair use, and many of the people who do uploads of video collages don't believe in copyrights. The regulators would need a heavier hand to ensure that there was such a thing as fair use, and since these regulators helped create this problem with life+ copyright laws, we would risk getting a compromise in the wrong direction.
Try to see it my way
Do I have to keep on talking till I can't go on?
If we see it your way
We've the risk of knowing that our love will soon be gone
We can work it out...
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music clips sampled (best practices are around 30 seconds for fair use)
I'd be surprised if it was as long as that. I'd expect it to be more like less than 10 seconds, going by the shortest of commercials as a meter.
Meanwhile, actual commercials should fall under fair use to reproduce in their entirety at all times, and any other materials intended for promotional use. Further distribution is free advertising which only benefits the owner; stepping in its way will create a backlash against the advertised product.
This is my opinion (TIMO). IANAL.
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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.
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Obligitory youtube link (Score:5, Funny)
dk-
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Music Videos on Youtube (Score:2)
Oddly enough, even AFTER Google bought Youtube, I found severl 'pulled down' Youtube v
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Completely original content, no lawyers, no corporations, not a single scrap of paper. I'm sure all he did was send an email. And they moved on it.
They're
Pissing into the wind.... (Score:2, Interesting)
There need
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I go up to YouTube and I see posts of full clips of copyrighted material. I don't see anything about permission and a little credit, if any, for the source. You're not going to win a "fair use" argument against YouTube when that shit is going on.
When the copyrighted material used is instantly recognizable on its face (or by ear), or even by the listed title of the video, what constitutes sufficient "credit... for the source"? Reproductions of the complete closing credits? What about incorrect attribution of the second unit of a production that had no part in the clip used?
It isn't like the Russians using footage from Titanic to claim the North Pole in a way that tries to conceal the source. It's more like taking clips of The Daily Show featurin
What?!? (Score:1)
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You're assuming that the footage is in complete form. Even incomplete footage, say a montage of clips from 24 set to an extended version its theme, can be recognizable and be self-attributable to its source on its face.
You're also assuming I have posted such content. You're skating close to committing libel, sir.
You also haven't answered the question: What constitutes sufficient credit of the source?
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A citation should only require enough information to uniquely identify the the source material to facilitate its retrieval for comparison. For most TV content, title (with disambiguation as necessary), season and episode number (1x04) or production code number (#7G04) for a TV series, and the work's copyright notation
OVER 30 SECONDS!!!! (Score:1, Funny)
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its in there, i just looked it up.
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Yu Gi Oh the Abridged Series [google.com]
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Whose Responsibility? (Score:3, Interesting)
Perhaps a video takedown should also spur relinquishing all profits generated by the infringing video to the copyright holders. Perhaps then the copyright holders would see hunting violating clips on YouTube a worth-while use of time and YouTube would be more careful about what they allow to be posted. Of course, YouTube would probably give the excuse that it would just be too hard to track earnings in such an isolated way.
Re:Whose Responsibility? (Score:5, Insightful)
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.
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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 m
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Re:Whose Responsibility? (Score:5, Insightful)
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.
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An artist without a sponsor, especially musicians, composers and other artists of "reproducing" works (as compared to painters and sculpters) had the problem that th
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Yeah, and Slashdot should pay someone to read every post submitted by its users to verify that it doesn't contain copyrighted material. This post for example contains a blatant copy of part of your copyrighted post. This should be referred to Slashdot's specialist copyright lawyers to determine whether I've overstepped fair use, before making my post readable by the public.
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Simply transfers costs to other copyright holders (Score:2)
But if YouTube is responsible, then the cost of enforcement is simply shifted from one set of copyright holders to another - i.e. to those w
Re:Simply transfers costs to other copyright holde (Score:2)
Re:Whose Responsibility? (Score:4, Insightful)
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.
One Vote per Person-Dollar (Score:2)
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I would be interested to know of anyplace that had free speech and which didn't place this sort of burden on the copyright holder. Certainly, I can't imagine why it would be sensible to place the burden on a third party who neither has knowledge of what material is copyrighted, and what material infringes on those copyrights. A copyright holder is in the best position to know wha
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ISPs don't ordinarily take down materials sua sponte because they're worried about it infringing. Normally, they only do so in response to a takedown notice, and not because they actually care, but because it is part of the procedure that they can follow in order to protect themselves very well from an infringement suit. Further, merely because
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That's their line. Their method is kind of a grey area, their interpretation hasn't been tested. I think Safe Harbor is the only sensible thing about the DMCA.
The problem that I see with your method is that it makes the site into babysitters. User generated media becomes irrelevant if it that much work to vet every piece that goes into it, so your argument would have the conse
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User generated media becomes irrelevant if it that much work to vet every piece that goes into it
Perhaps the problem lies in YouTube not fully embracing the idea of user generated content. Since YouTube currently is the one making all of the money (I have heard of possible changes, but do not know any specifics) through ad-generated profit, the content becomes theirs when it is uploaded. If YouTube went to a model that placed real accountability and profitability into the hands of the users, then they would have a case for shifting the blame to the users. Their current model seems to take advantage
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This may help to clarify: http://en.wikipedia.org/wiki/Contradiction [wikipedia.org]
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As to your current example, In one you are talking about a physical conterfeit and the other about an electronic copy. If it an obvious conterfeit then the record store is under legal obligation to refuse the transaction. If it is a conterfeit of high enough quality to fool all but an expert, they are no longer under that obligation. While they both contain copied material, it is hardly an equal compariso
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Re:Whose Responsibility? (Score:4, Insightful)
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.
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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.
Excellent analysis, Speare. As someone who has been working in copyright law since 1974, I agree that what is going on today has absolutely nothing to do with copyright law as it was intended to be, or copyright law as it has historically been practiced. It is an aberration, one that makes no sense.
Your points will become part of the discussion of the question of whether trying to assess statutory damages of $750 per song file [blogspot.com] -- when the lost profit for the song file is about 50 cents -- is unconstitutio [ssrn.com]
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I'm gratified by your reply, Mr. Beckerman.
I've never had any real legal reason to be interested in copyright, but I could probably guess my interest in the issues of C P T S (Copyright, Patent, Trademark, Secret) or "IP" law and ethics to about 1974 also. I was a little kid, wondering what the stamp of 'PAT PEND.' meant when I saw it inside every little Lego(tm) brick I touched, why Megablox never quite fit with Lego even though they were supposedly "compatible", or why the Lego pamphlets implored regul
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Google/YouTube hides under the fact that US copyright law puts the responsibility of reporting violation on the copyright holders.
YouTube isn't "hiding behind the law". Its very business model was based upon the existence of the law, the Digital Millenium Copyright Act [cornell.edu].
You seem to be under the impression that the "law" exists just to serve the interests of the Big 4 record companies and several major motion picture companies, and that to the extent the law protects anyone else it's unjust.
Your dozen or so comments all have that flavor.
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we all agree that fair use is a good thing as long as you dont make money
but sites like youtube etc are commercially exploiting clips by way of advertising
Even a non-profit site hosting videos may have to resort to some advertising to cover operating costs. If having any income from it is considered commercially exploiting, that argument devolves into a demand that any site hosting fair use video must operate at a loss. The bandwidth costs for that makes such services financially unsustainable for anyone that isn't so obscenely wealthy as to be able to pay for it by the interest from his bank account alone.
the problem IS the law (Score:5, Interesting)
and we are supposed to respect this. why? why must we respect this?
copyright law has been inculcated and grown according to corporate interests nowadays and has morhped into something completely different form its original purpose. it's a cancer. and now it threatens to kill the public domain, making increasing incursions on what is considered free and fair use
hey, how about most everything is free and fair use, and fuck you to corporate-backed copyright law? is that crazy? who tells you that's crazy? the corporate-backed lawyers?
copyright law itself is the problem, the notion of intellectual property itself is the problem. it has been warped form its original purpose and has been corrupted. it's cancerous corporate growth fueled by the almighty buck, and now it threatens to kill the very creative centers that their money comes form in the first place
here's an idea dear corporate music and corporate video: you can extend the copyright on mickey mouse forever, and pump cash out of that icon forever. and you will get diminishing returns over the years. or you can let it go, and watch your "property" morph into a million stepchildren, one of which will be the next mickey mouse for you to pump money out of
in other words, if you relaxed on the stifling laws and their continued growth, and backed off a bit, you might be surprised to find the emergence of more properties for you to exploit. those properties come from somewhere: creative ferment. but right now your laws stifle and lay waste to that very same garden of creative ferment that your life blood runs from. and you are too oriented to the almighty covetous greedy buck, too shortsighted to see, that the continued cancerous growth of your laws (they certainly aren't the public's laws) is killing your future growth. you'd rather bleed fossil intellectual property assets then relax and let more modern and vital ones be born. because you bleed the creative commons dry with your laws. if you covetously protect your "property" from the public domain to the bitter end, you actually wind up with diminishing returns
the whole idea of intellectual property in the very first place was to provide for a comfortable and ratinoal boundary between private domain and public domain. but under the tutelage of legions of corporate lawyers and the thirst for more money, it has grown into a cancer, that frankly, needs to be broken before it gets fixed. because there is no incentive for corporate lawyers to respect the public domain
and so the public domain must go "illegal". copyright law and intellectual property has ceased to resemble anything moral or even financially sound anymore. all it does is kill our shared free public cultural riches for a set of diminished fossilized corporate private riches
ip law is corrupt and broken. don't respect it. it deserves to be broken. do your best to break it
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ignore posts like that (Score:2)
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I love a good discussion. I have had a few, just yesterday I had a wonderful discus
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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
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"Over protecting intellectual property is as harmful as under protecting it. Culture isn't possible without a rich public domain. [...] Culture, like science and technology, grows by accretion..."
~Federal 9th Circuit Court of Appeals Judge, Alex Kozinski
http://nkhstudio.com/pages/amen_mp4.html [nkhstudio.com]
http://youtube.com/watch?v=5SaFTm2bcac [youtube.com]
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Although I don't agree with breaking the law to change the law, that just pisses off lawmakers.
About time (Score:3, Informative)
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
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Fighting is a losing battle. Go around, over, under, or sideways or anything else legal that will make them realize that they are losing revenues by being too tight.
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Even if not, you might have paid, say, 20 bucks a month and that would've been 20 bucks they had. For, essentially, nothing. At the very
There are alternatives for you... (Score:2)
magnatune.com [magnatune.com] youlicense.com [youlicense.com] flicktracks [waxfruit.org] ioda promonet [iodalliance.com] pumpaudio.com [pumpaudio.com]
If you wanted clips from Beatles, Rolling Stones, etc type music, forget it. It's just impractical for the little guy. Maybe you could do like someone else suggested here and get a band/musician to cook something up that sounds like the song you want.
Last time I checked I was a dual citizen (Score:2, Interesting)
In fact, I have registered copyrights on file with both the US Library of Congress and the Canadian equivalent - which cost me money to file.
When I or my son make a video, we are Canadians, and we ignore the Soviet-style illegal "laws" of the US.
Fair use is international law - not US only. Not what US courts say.
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