Fair Use, Copyright, #WTFU and Youtube (OddCast Ep 1 Transcript)

This is the transcript for the first of episode of ‘The Ultimate Oddcast’. It goes over many facets of U.S. copyright law, fair use, the D.M.C.A., Youtube, let’s plays, #WTFU , and more.

(Disclaimer: I am not a lawyer. The following views are my opinions based on my understanding of copyright law in the United States, and should not in any way be construed as legal advice. If you need legal advice, consult with an attorney.)

With the recent copyright controversies on Youtube, I wanted to explore and discuss these subjects in depth.

Fair Use is an exemption in the copyright code in the United States which exists for the purpose of allowing “criticism, comment, news reporting, teaching, scholarship, or research”. It is dependent on a number of factors:

a. the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

Nonprofit educational works are generally favored over commercial uses, although if your work firmly falls into a specific category of fair use, such as parody, you may be able to profit off of it regardless. An example of this is Weird Al Yankovic who has been releasing parody albums for years. This is because the work he makes is transformative, and that makes a big difference. If you transform a copyrighted work into something new and different, especially if through doing so you express commentary, critique, or the other types of commonly accepted fair use, this makes it more likely it will be considered fair use in a court of law. It’s important to remember though that fair use has to be determined in a court of law, and cannot be determined outside of it.

b. the nature of the copyrighted work;

Whether the work has been published or not is given weight here, as the copyright holder is considered to have the right to “first publication”. Courts tend to give greater protection to creative works such as art, music, poetry, and other similar types of artistic expression.

c. the amount and substantiality of the portion used in relation to the copyrighted work as a whole;

Although the law does not set exact limits, it’s generally accepted that the more of a work you use, the less likely it’s fair use. It is viewed in relation to the totality of the work, as well as how much is needed to serve the purpose of utilizing said work. Courts have, in the past, ruled that even a small amount of work can be excessive, depending on how it’s used and the nature of the original work.

d. the effect of the use upon the potential market for or value of the copyrighted work

This has a couple parts to this. The first is that the court will consider whether the person claiming fair use could realistically be able to purchase or license the copyrighted work. If they could have done so, this will weigh against their fair use claim. The main part of this is whether your work can and/or will affect the potential market of the original copyright holder. Basically, does your work present a close enough alternative to take away from their ability to profit from their copyrighted work or in some other way damage their ability to profit off said work? If so, it is unlikely to be considered fair use, as it creates a direct competition.

Fair use does not require permission from the copyright holder, as this could potentially result in censorship, but again fair use can only be determined in a court of law.

According to the Ninth Circuit Court of Appeals judge who ruled on Lenz V. Universal Music Corp. , fair use must be considered by copyright holders in good faith before issuing takedowns. Lenz V. Universal Music Corp. involved a roughly thirty second video of a baby dancing to a song by ‘Prince’. Universal Music Corp. had the video removed, and the case was taken to court by the E.F.F., who handle copyright cases like this. This ruling presented a fundamental issue for companies because copyright takedowns had at that point been automated completely due to the sheer volume of uploaded content as well as the financial costs associated with hiring people to manually look for infringing works. Because of this, it is clear that the current system needs an independent third party to review claims, as it gives all power to the companies issuing takedowns who have no motivation to not make these claims. An independent third party could arbitrate in cases where the counterclaim states that the individual making the claim is not actually the copyright holder. This specific issue could be remedied rather easily simply by having a person look at the details of the claims and contact the company for more information if necessary. I’m not really sure why there isn’t a system which checks Content I.D. to see if the registered copyright owner is the party making the claim or if they are represented by the party making the claim.

The Digital Millennium Copyright Act of 1998 was created to adapt the law to the fast changing landscape that we call the internet. It provides a route for copyright holders who find infringing content to go straight to the host of that web content or the Internet Service Provider with a notice that says: “This is on your site and it infringes my copyright. Take it down.” and the Internet Service Provider or web-host are required to immediately take that content down. When Youtube was sued by Viacom in 2007, it faced the possibility that it could be held liable for the infringement which had gone on. Viacom sought damages totaling one billion dollars, a sum which would have absolutely destroyed Youtube. Because of this, and in order to keep its “Safe Harbor” protection, Google created the automated Content I.D. system which uses proprietary algorithms to scan uploaded video and audio for matches from a system of copyrighted works. It’s important to understand that at the point that Youtube Red launched, Youtube had been steadily losing Google money for a long time. The volume of videos uploaded daily result in an ever increasing cost to host that content through servers which have to be purchased, housed, and maintained. The costs are astronomical, and as any Youtuber will tell you, Adsense revenue is paltry for all but the biggest channels, and nonexistent for small channels. Youtube was able to avoid liability when sued by Viacom because it petitioned for “Safe Harbor” status, a provision in the D.M.C.A. which allows for exemption from liability as long as the service provider follows certain stipulations. One of these stipulations is the immediate response to D.M.C.A. takedowns, which is partly why we’re in the mess we’re in now. If Youtube were to ignore a D.M.C.A. takedown request, it could lose its safe harbor status, and risk liability, and would eventually be destroyed as a result.

In an effort to avoid being sued to the point that it would go offline, as well as a desire to maintain positive relationships with the corporations which advertise on Youtube in addition to issuing copyright claims and D.M.C.A. takedowns through it, Youtube has created a system which gives immediate and far reaching power to anyone willing to utilize these systems, even if said individuals don’t actually hold said copyright. This has been used to censor criticism and critique, to harass, and ultimately in an attempt to control individuals’ right to freedom of expression. While Youtube is a private company, and no one has the right to post videos onto its service, we all have a fundamental right to not have our speech censored through copyright law by the parties we are critiquing, whether via legitimate takedown attempts where Fair Use is questionable, or by illegal and false takedown attempts utilizing the D.M.C.A. and copyright law in general. The current system allows a third party with no right to make the claim, or a copyright holder who is acting in a vindictive manner, to get a video taken down, or even to do a third party monetization claim, with no repercussions whatsoever if those claims were spurious.

Content creators are put in a position where they must choose between fighting claims which they believe fall firmly into fair use, a fight they may lose resulting in a copyright strike that removes their ability to monetize videos, or giving in to censorship. While many Youtubers do not make much money on Adsense, there are plenty of content creators who rely on that money in at least some capacity to help them pay their bills. I’m aware that Youtubers making money is a controversial thing, but the fact is these people make art that you enjoy, and you should want them to be able to feed themselves and have a roof over their head, even if only for the selfish reason that you want to see more videos from them. With legitimate copyright claims that are clearly outside fair use, such as full reuploads of videos, I understand why people would side with copyright holders taking away that monetization. But when we’re talking about review and critique of copyrighted material, and you give another potential tool to copyright holders to beat reviewers into submission when they dislike what’s said about their work, it makes a bad situation much worse. If you review my work, utilizing parts of said work to make your point under what you believe to be fair use, not only can I have that work taken down, I can tie you up in a process that takes at least thirty days and potentially may remove your monetization. Or you can remove the video. And most Youtubers who do review and critique get these claims all the time, some potentially legitimate and others not so much. Getting three strikes results in a channel being completely deleted off of Youtube, which means that copyright holders have the ability to remove all of a person’s work if they want to be vindictive. While filing false claims is against the law, and even though the Lenz V. Universal Music Corp. ruling stated fair use must be considered by copyright holders before issuing a takedown, there is absolutely no active repercussions currently for parties involved in either of the previous two activities. This has created a landscape which is rife with abuse.

One possible way to remedy this situation is to have an independent third party review disputes, but of course this creates the question as to who would pay for this potentially costly service. One of the most important things to understand about Fair Use as it currently stands is that it can only be decided on each individual basis in a court of law. A third party could look at content and say “I think this falls under fair use” but it would only be an opinion, and wouldn’t have legal standing, and thus the copyright holder could still take it to court. The most important change would be to require every person filing a copyright takedown notice or D.M.C.A. takedown notice to provide all of their legal information in order to do so. In this way, takedowns which are fraudulent in nature would likely drop precipitously, as the individual making the claim would not be able to stay anonymous. Considering the fact that filing a counter-notification or counter-claim requires the content creator who is accused of infringing to provide their information, it’s illogical that the party who initiated the claim is not required to do the same. This is particularly important as it seems that certain companies and/or individuals have realized that they can make a quick buck by claiming monetization on videos through spurious copyright claims. The legal implications and otherwise of this are not to be taken lightly, as individuals could potentially use this method to force a person to either remove their videos or provide their personal information which could then be used to dox, harass, stalk, or even perpetrate violence against them.

Youtube is, was, and will forever be built on and dependent upon the creators who upload content. Traditional media has gone from looking down on Youtube to advertising on it on a daily basis. Advertisers eventually came around and realized that there were a ton of people watching Youtube they could market to. Those viewers did not and do not come to Youtube for the Jimmy Kimmels or the Buzz Feeds: viewers flock to Youtube for the content being created by regular individuals. If Youtube continues with its current strategy of heavily favoring the content and desires of big corporations, there will be a domino effect of content creators leaving, followed by the audience leaving. The majority of people don’t come to Youtube to watch content made by large corporations: they may do so anyways, whether inadvertently or because they enjoy the content, but that’s not why most viewers show up. I keep scratching my head at decisions Youtube makes which mimic the old traditional models of media, although I do absolutely understand their desire to play ball since they struggle financially. Youtube is a business, ultimately, and though it may generate a social and cultural benefit, it still must make money at some point in order to continue existing. Google is a very large and successful company, and you don’t become large and successful by taking an ever growing loss forever. Monetizing their business through Youtube Red was a good idea, even though I feel personally that they botched the launch of it a little bit by putting too many eggs into too few baskets (and isn’t that ironic considering it’s usually the reverse with Youtubers being burned by putting all their eggs in Youtube’s basket?). While Youtube cannot change the law, they can alter the systems they use to respond to copyright claims and D.M.C.A. takedown requests, and I think that after all of this negative p.r. that they will do just that.

There are a few options theoretically moving forward for those affected and everyone else in order to remedy the situation. We could attempt to get legislation passed which will update the D.M.C.A. in a way which is more reflective of the times and more respectful of fair use works. This would be a great fix, but getting any legislation passed is a difficult and drawn out process, not to mention the fact that any attempts to change copyright law would surely be met by a serious lobbying campaign from big corporations. Because of this, it’s unlikely that this avenue would be an effective one at this juncture, and even if it eventually was, it would take time. Another option, and one which I think will make the biggest difference in the short term, is having precedent set in court. When a case is decided, previous legal precedent set by similar cases carries weight. This means that someone would have to fight these claims of copyright infringment in court, which would cost money and would still fall to a judge to decide. Based on the Lenz V. Universal Music Corp. ruling, this may be the best route to take. A ruling which awarded damages would be especially helpful in precedent, as corporations are really only concerned about their bottom line. Corporations are neither inherently good nor inherently evil: what they are is reliant on profits. Morality simply does not factor in outside of public relations and how it affects profits. That doesn’t mean the people who work in those corporations are immoral or don’t consider the morality of their actions, or don’t sometimes quit for moral reasons, only that the corporation ITSELF does not have any type of morality and is solely driven by profit. It is also likely that an investigation by the Attorney General in the state of said groups or individuals knowingly making spurious copyright claims for works they don’t actually own in order to defraud the content creator of their monetization would be effective at dissuading others from taking the same steps.

Copyright law is controversial, but I don’t believe it’s inherently bad when it’s written in a way that protects the copyright holder without giving overreaching power to said individual. If you paint a painting, that is your copyrighted work. In the United States every created work has an inherent copyright once it’s transcribed into a solid state. A copyright holder, in this example being you, having just painted a painting, does not need to register their work as copyrighted, though doing so does provide additional protections. That copyright protection means that I can’t simply scan and reprint the image and then sell it as my own. One of the protections afforded by registering a copyright is the right to claim damages, which may be why we see companies willing to file claims against work which would likely be considered fair use. It’s incredibly important to understand that once a theoretical work is fair use, it is then its own separate copyrighted work. It can therefore be considered copyright infringement of said fair use work to take Adsense revenue made off that content or otherwise prevent the copyright holder from using their work to the extent allowed by copyright law. Copyright law is at it’s best, in my opinion, when it’s protecting the people who make these works from having their hard work taken from them for the profit of others. If you create a piece of art or content or whatever it is, you deserve the right to profit off of it unless it’s used in a new work in a manner consistent with fair use.
It’s necessary for everyone who creates content which utilizes copyrighted content in any fashion to study the fair use provision and do their best to understand it. Unfortunately, fair use is often thrown up as a defense even when it is unlikely to apply. I am referring specifically to the “Reaction Videos” which show the entirety of the video they are reacting to while providing little to no transformative value. Whether a work is transformative is a major part of fair use, meaning that in order for content to qualify, it must transform the original work substantially. Many reaction videos have so little content added to them, with some of these content creators even saying only a few words in the entirety of a ten minute plus video, that they seem to clearly fall well outside fair use. Again, this is totally up to a court to decide, but based on the requirements set forth in the copyright code, I don’t personally believe they would win a claim of fair use. Whether they profit off of these videos or not, it could still be considered copyright infringement if their claims of fair use were denied, potentially opening them up to legal liability. The case seems even more clear when it comes to so called “freebooting” of videos, which is the process of reuploading videos to other sites, typically Facebook, which do not employ strict content control methods. Not only does this affect the copyright holder’s ability to control where their work is copied to, it also potentially can severely affect their market share as videos on Facebook often get substantial numbers of views, even regularly surpassing the number of views that that same video got on Youtube where it’s monetized. This seems to me to be blatant copyright infringement, and anyone who profits off of this practice is, in my personal opinion, likely to eventually find themselves being sued, perhaps in a class action lawsuit from multiple content creators, perhaps with Facebook itself even being included in said class action for allowing said content to be uploaded and for profiting off of said content if a court decided that that is the case.

While it is up to a court to decide, the case for fair use when it comes to video game let’s plays is considered relatively strong for a number of reasons. Perhaps the biggest is the fact that the experience of watching an individual play a video game is a fundamentally different experience from playing said game. Thus, it seems unlikely that let’s plays can take away from the market value of the games they cover. In addition, that individual’s unique experiences and reactions to the game, how they play the game, their decisions, their skill, and much more present a variety of factors which differentiate each play session and add a level of transformative value which may be substantial. If the person playing the game also provides various types of commentary and critique, analyzing the game, whether in a serious fashion or humorously in a manner which may be considered parody, that adds another layer of transformation to the original work. Some content creators go further by adding music, sound effects, graphics, and various other media which reinforces the transformative nature of the new work through fair use. Again, this is all theoretical, but these may be factors when a court eventually decides these matters.

I think it’s likely that Youtube will change dramatically in 2016, whether beginning to collapse in on itself due to content creators being drive away by these issues, or by refocusing their attention on making sure Youtube is a platform for content creators to create their work without fear of being censored by corporations or having to fight off takedown claims which seem to fly in the face of fair use. As it is right now, Youtube is becoming what I and many others feel is an environment which stifles creativity in order to appease large corporations who dislike the existence of fair use provisions in the copyright code and dislike any content they feel takes from their intellectual property. Fortunately for all of us, laws are not dictated by the whims of corporations. It’s up to the courts to decide.


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