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.'"

Comments

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?

[metaslashdot]

Wikipedia has a pretty good answer.
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The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors

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: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: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: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.

Obligitory youtube link

[dknj]

Disney teaches copyright

dk-

Pissing into the wind....

[iknownuttin]

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. Said copyright holder can just go up there and do a search on any TV show or movie or music video and find thousands of copyrighted material that was uploaded illegally. And a jury will agree with the plaintiff. I know because I do in most of these cases.

There needs to be a thousand examples of "fair use".

Re:OVER 30 SECONDS!!!!

[rootofevil]

no, because then youd be infringing on their patent on 'a process or system for drawing out 4 minutes of story or animated tale into a 30 minute episode'

its in there, i just looked it up.

Whose Responsibility?

[cerelib]

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. It is clear that the laws on the books were written when publishing or broadcasting content was out of the reach of normal people. The law does not reflect any of the challenges faced by the current situation.

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?

[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?

[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: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: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.

the problem IS the law

[circletimessquare]

copyright law was originally intended to reward content creators for their work, to give them incentive to create content. however, copyright law has been hijacked by the economic middlemen, the distributors, such that the reward content creators get doesn't matter anymore (and is significantly reduced)

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

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.

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

Last time I checked I was a dual citizen

[WillAffleckUW]

of both Canada and the US.

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.