The Rest Of The Story: Fair Use School Created To Respond To YouTube's Questionable Copyright School

from the fair-use-tube dept

Back in April, we were pretty surprised to see YouTube launch a “copyright school”, with a video and quiz that seemed woefully limited, and at times, misleading — especially on fair use. Google has traditionally been pretty good on copyright issues, so it was unexpected that it would put out one of those kinds of propaganda videos, especially one that implied fair use was something you shouldn’t bother with at all, and that all videos should be entirely new and original. Public Knowledge responded by offering up $1,000 for whoever could create a better video.

The winner has been announced, and it’s Patrick McKay for his “Fair Use School,” that takes the same basic style and makes a video about fair use, and which explains YouTube’s DMCA counternotice setup:

Of course, it’s fair to say that McKay (admittedly) simplifies things a bit in saying what is “probably” fair use, which is a big part of the problem. Since fair use isn’t a hard set of rules, but rather basically whatever judges decide fair use is, it’s sometimes difficult to assume what is and what is not fair use.

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Comments on “The Rest Of The Story: Fair Use School Created To Respond To YouTube's Questionable Copyright School”

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out_of_the_blue says:

"Google has traditionally been pretty good on copyright issues"

Even if HAS, that’s no predictor for the future.

Specifically to Youtube: of course they turn a blind eye to copyright when that’s in their direct interest. — I’m not saying Youtube is huge violator of copyright, merely that Google makes money off any copyright violations, IF there are any: they’ve a motive. — And so you’re only promoting your limited Pollyanna views of Google and copyright.

But Google with its book-scanning project still has the potential to lock up all those books: how many times have you complained that works are taken out of the public domain? You simply ASSUME, at best, that Google isn’t just playing nice for now, and won’t be revealed as a monster when it’s consolidated and there are effectively no other choices.

Anonymous Coward says:

Wow, I get jumped on for saying that commercial use really have no relation to fair use, a real beatdown (turns out the correct answer is “commercial use is rarely fair use, except in reviews”. This person makes a video that says some stuff is “probably fair use”, and pretty much gets a pass. Nutty!

Probably fair use is a reason to have a lawyer on speed dial. Probably don’t cut it. It’s horrible legal advice from someone who isn’t a lawyer. When you get to probably, the answer is “don’t do it… you will probably get sued or get your video taken down”. If you aren’t 100% certain, you know you are at risk.

It’s a shame that a video like this would be held up as a good tool, it’s mostly a way to lead the sheep to slaughter.

Ninja (profile) says:

"Google has traditionally been pretty good on copyright issues"

That’s precisely why MAFIAA shouldn’t push too hard. Google is keeping the middle gorund, the status quo as long as the other involved parties don’t push too hard. I can see how they’ll show their claws and fangs if things go too far. Or at least I hope so.

Unfortunately, Larry and the others aren’t eternal and may be replaced at some point. While they are at key positions on Google I’d say the company will be alright.

Ninja (profile) says:


Oh they are? You know that any idiot can have ad sense in their blogs nowadays and that this is being used by MAFIAA to classify what would be fair use as commercial use? If fair use was so clear we wouldn’t be discussing here and all judges would have the exact same interpretation of the law, which takes some minutes of reading into the issue to see i’s not the case. Add jurisdictional problems to the mess and we have a huge problem. If it’s clear for you then I’d love to know in which planet you are living now.

Anonymous Coward says:


Having adsense on your blog indicates that you have a commercial business. Ask the IRS, if you don’t declare that revenue they can get up your ass in a serious way. It’s real income from a real commercial venture.

Fair use is remarkably clear about 99% of the time. What gets discussed here is the last 1% that sits right on the border. Typical of what goes on, the 99% is never discussed, and the 1% is held up as reasons to toss the other 99% of the cases out.

99% of the time, it’s clear as it comes. The last 1% is always what will end up in court or on a blog. Just try to remember that on planet earth, 1% isn’t a majority.

A.R.M. (profile) says:


Not to be rude, but I find it odd the $1000 is the limiting factor here as though the only reason people got into it was to get as much of the $1000 as they could.

In other words: this was never about the issue from this contest’s point of view.

That’s how I’m seeing it. It’s a bad attitude, I know, but it’s also the reality and it’s why I believe it trivializes the issue.

Again, I mean no offense to anyone. This is merely my personal opinion. Feel free to disagree.

dwg says:


Someone PROBABLY beat you down for that “commercial use is rarely fair use” because it’s fucking stupid. There are four factors in the fair use inquiry, and the commercial use one is, obviously, only one fourth. So basing your analysis on it is worthy of a beatdown. Any lawyer worth anything can work with the other three factors to show fair use, where it exists.

Matt says:

video not accurate

That video is not accurate and very misleading. Just the fact that he used the word “probably” about 8 times, shows that even he knows what he’s saying is not true.

Best example, doing a Remix or a Mash-Up does not in ANY WAY constitute Fair Use. If you use ANY portion of the original copyrighted music without written permission of all of the copy right holders, then what you are doing is illegal. That’s the law. If you don’t like it, work to change it.

But as someone who has made his living as a Remixer, Producer and DJ for over 20 years, Just because I can get my hands on a Madonna, Rihanna, Beyonce A capella (and I can and do all the time) and do a “remix” of it, doesn’t me I have the legal right to make it or release it on YouTube. The law is written in the following manner: As a producer/DJ I could do a remix and use it out at my gigs. They won’t come after me for that even though technically you are not legally allowed to even do that. But as soon as I release it to the public, it automatically is competing with the original. If just one person doesn’t my a 99 cent download because they downloaded my unauthorized mix or mash-up, then my version is competing. So his video is false and misleading.

It’s really unfortunate that the Internet has created an entire generation of child-like thinking and mentality that just because I want it, I should be able to have it. You can’t walk into a car dealership and take the vehicle without paying for it, nor can you walk into a grocery store and take food, or books, or dvd’s or CD’s without paying for them. It’s stealing. So why do people think it’s OK to steal music and movies off the intenet, or use pieces of other peoples work without asking?

Most artists would gladly give their permission for people to use bits of their material into something new. In fact, I just sent a email off to a major 80’s UK New Wave icon the other day asking to sample a 10 second verse of one of his hits and he said “sure, just put it in writing and I’ll sign off on it.” People get pissed off when you just do it without asking. Now sure Madonna is probably not gonna say yes. But it’s her right to say no. She labored long and hard to create her work. And by releasing it doesn’t release her of control of it. I see very little difference between music and children. They are both labors of your love, work, sweat and tears and just people don’t have the right to steal them, hurt them or destroy them just because they can get away with it.

Derpentine says:

Fair Use

Just like the chuckleheads that submit fraudulent take down notices, I would suggest everyone just submit a counter-notice automatically, even if you don’t think it’s fair use.

Why should you be held to a different standard then the one set by the original notice. Just abuse the weasel phrase “Knowlingly” like they do. Or blame an underpaid functionary; eg My dog improperly submited that notice.

I’ve yet to see any real punishment on the the fraudulent dcma notices submitted daily.

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