Netflix To Try Crowdsourcing Subtitles; Will It Get Sued For Infringement?

from the rock-and-a-copyright-law dept

Before getting into the details of this new story, let me bring up a pair of recent Techdirt stories as background. First, there's the story of Netflix being told that not having closed captioning on its streaming movies means it violates the Americans with Disabilities Act. As we noted at the time, this raised interesting copyright questions, considering that Netflix may not be legally allowed to put captions on videos. A few days before that, we had written about a student who ran a site that provided crowdsourced downloadable subtitle files for TV and movies, and had been found guilty of copyright infringement.

Knowing both those things, isn't it interesting that Netflix is now experimenting with crowdsourcing captioning/subtitles for films and TV shows? Perhaps it figures that having lost that first legal fight, it should lean in the other direction and see if it gets sued there as well. Either way, it seems like it opens up some pretty serious copyright questions. While some of us think that providing captions/subtitles should be pretty clear fair use, others (obviously) disagree. And, when it's an operation like Netflix -- which is obviously a commercial entity -- you have to wonder if it's going to get sued...

Filed Under: copyright, crowdsourcing, subtitles
Companies: netflix

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  1. icon
    Mike Masnick (profile), 3 Aug 2012 @ 9:39am


    So, I repeat the question, oh holy Mike: How the hell could it be fair use? Or are you just going to label eveything possible "fair use" and when a court case comes down on your side you will post up a dozen "told you so" posts on here and harp about the expanding fair use universe?

    Four factor test:

    * The purpose and character of the use

    It is used to enhance the value of the original, authorized work, not as a substitute. It is part of a commercial endeavor as you noted, but being commercial does not mean fair use does not apply.

    * The nature of the copyrighted work

    One of the considerations for this factor is if dissemination of the work "benefits the public." Given the nature of the ruling on the ADA and the fact that this would help the hearing impaired, we can check off that factor as well.

    * The amount and substantiality of the work

    The text is just a part of the overall movie, and not necessarily a key part.

    * The effect of use on the market

    Zilch. Putting the subtitles on it will not harm the market for the movie itself (quite the contrary, it likely adds to the market). Nor does it hurt the market for the script. No one buys the script because the subtitles aren't available.

    Of course, as with any fair use decision, judges can make wacky decisions, but I think there's a strong case to be made that subtitles hit on all four factors (and you don't even need to win all four factors).

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