Copyright

by Mike Masnick


Filed Under:
censorship, copyright, dmca, fair use, takedowns

Companies:
google, youtube



YouTube Puts Some Monetary Weight Behind Fighting For Fair Use: Others Should Too

from the make-your-users-trust-you dept

Back in 2013, we were impressed when the folks at Automattic (the company behind WordPress), actually filed some lawsuits against people who were abusing DMCA takedown notices just to takedown content they didn't like. Earlier this year, the company also took a strong stand against DMCA abuse by including a "Hall of Shame" in which it called out and shamed particularly egregious takedowns. At the time, we mentioned that other companies should pay attention. Fighting for your users' rights is important, but too many companies don't do it (and many just take things down on demand).

Now YouTube has stepped up a bit as well. There have been plenty of complaints about how YouTube -- and ContentID in particular -- deal with fair use. It's quite difficult for an algorithm to determine fair use, and that's part of the reason why we get nervous when copyright system defenders insist that you can automate takedown processes without collateral damage. However, Google has announced that it will promise to pay the legal fees (up to $1 million) of certain YouTubers where takedowns have been issued in cases where YouTube agrees that fair use applies:
We are offering legal support to a handful of videos that we believe represent clear fair uses which have been subject to DMCA takedowns. With approval of the video creators, we’ll keep the videos live on YouTube in the U.S., feature them in the YouTube Copyright Center as strong examples of fair use, and cover the cost of any copyright lawsuits brought against them.

We’re doing this because we recognize that creators can be intimidated by the DMCA’s counter notification process, and the potential for litigation that comes with it (for more background on the DMCA and copyright law see check out this Copyright Basics video). In addition to protecting the individual creator, this program could, over time, create a “demo reel” that will help the YouTube community and copyright owners alike better understand what fair use looks like online and develop best practices as a community.
It is absolutely true that even when video creators believe that their use is non-infringing because it's fair use, many still won't issue a counternotice, because the next step, if the copyright holder disagrees, is to go to court. And even if you have a slam dunk case, that can be both time consuming and incredibly expensive. And, of course, if you lose, it can be life-destroying expensive, thanks to the idiocy of statutory damages provisions in copyright law.

The NY Times actually has more details than Google's own post and includes some examples.

Constantine Guiliotis, who goes by Dean and whose channel dedicated to debunking sightings of unidentified flying objects has just over 1,000 subscribers, is one of the video makers YouTube will defend. Mr. Guiliotis has received three takedown notices from copyright holders of videos that he has found online and posted to his YouTube channel, U.F.O. Theater.

In his videos, Mr. Guiliotis includes the videos he found but also provides analysis and commentary, which YouTube argues is within the guidelines of fair use rules. The site reposted the videos after its review and told Mr. Guiliotis it would defend him against any future legal action. Like the other creators YouTube has selected, Mr. Guiliotis has not been sued for his videos.

“It was very gratifying to know a company cares about fair use and to single out someone like me,” Mr. Guiliotis said.

Sherwin Siy, over at Public Knowledge, notes that Google probably won't have to spend much money, as any copyright holder who realizes that Google is backstopping the videos will probably (wisely) realize that going to court is less likely to have the desired effect (which is usually just intimidating people into taking down content). However, it's still an important move in creating extra protection for fair use and in helping to establish a clear bar of what's considered to be fair use:

But while this means that Google isn’t likely to spend much, if any money, in litigating these cases, the program still does two very important things. First, it does in fact protect those uploaders. By giving these videos a stamp of approval, Google’s legal team will make the sort of person who sends a bogus or careless takedown notice think even harder about filing a bogus lawsuit. That sort of reassurance can be enough encouragement for someone to put back a video. Oftentimes, someone receiving a takedown notice can shy away from exercising her rights to have it put back because doing so exposes her to a lawsuit. With this sort of protection, much of that fear disappears.

But perhaps the more useful aspect of the program is that it sets a clear example of what fair use is. As videos are added to the program, other users will have a useful set of models that show what Google’s lawyers, at least, are confident is fair use. That information can help an everyday YouTube user in ways that more text-based and specific guides (for educators, etc.) might not.

And this collection of videos sets an example for far more than just other video creators. The set of fair uses on display can act as a living example of the predictability of fair use. Too often, the doctrine is considered hazy or indefinite or impossible to determine. And while there are lots of cases that can exist in a gray area, there’s even more cases that actually are pretty black or white. Most people have seen clearly infringing videos; this program will show a wider audience clearly non-infringing videos. That’s particularly important in the face of other countries who have yet to adopt fair use as a limit on their copyright laws, and have been told that it’s too unpredictable for them to rely upon.

Jeff Roberts, over at Fortune goes even further in calling this "a game changer."
This is why YouTube’s announcement is a game-changer: Copyright-based censorship strategies are no longer risk free. Now, before launching an unjustified DMCA takedown, the claimant will have to weigh the risk of going up against Google and its deep pockets in a lawsuit. (The legal environment could get even more interesting in light of a recent ruling in the Prince “dancing baby” that could make it easier for fair use victors to claim legal fees from those who removed their videos).
I don't know if I'd go that far. Again, Google is only protecting a "handful" of videos, but at the very least it may scare off some of the more egregious abuses, and that's always a good thing. Now, we just need even more platforms to recognize that fighting for your users' fair use rights is important.

Reader Comments

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  • identicon
    avideogameplayer, 20 Nov 2015 @ 10:50am

    Sounds like a good idea, but I'd like to know what criteria YouTube uses to determine who gets back up and who doesn't...

    And will this be expanded to everyone with videos?

    We'll see...

    reply to this | link to this | view in chronology ]

    • icon
      Mason Wheeler (profile), 20 Nov 2015 @ 11:02am

      Re:

      Agreed. This really looks more like a token gesture to generate goodwill than an actual move to stem abuse. (The YouTube equivalent of Fiber To The Press Release, perhaps.)

      If they wanted to actually fix a real problem, they'd throw out ContentID.

      reply to this | link to this | view in chronology ]

  • icon
    DannyB (profile), 20 Nov 2015 @ 11:10am

    Difficult?

    It is IMPOSSIBLE for an algorithm to determine fair use.

    One of the tests is the purpose and nature of the copyright work being included within something else. Criticism? Parody? Etc. I still don't believe Google's algorithms can account for the fair use factors on their own.

    reply to this | link to this | view in chronology ]

  • icon
    DannyB (profile), 20 Nov 2015 @ 11:11am

    The Hall of Shame

    The hall of shame for horrible DMCA takedowns is a good idea. It could help some censors with their 'reputation management' tragedy, er, um . . . strategy.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 20 Nov 2015 @ 11:26am

    Not as good as it soudns

    Youtube will keep the videos up >IN THE US

    reply to this | link to this | view in chronology ]

    • identicon
      kallethen, 20 Nov 2015 @ 11:30am

      Re: Not as good as it soudns

      Considering that DMCA is US law? I think you're reading too much into that statement.

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 20 Nov 2015 @ 12:06pm

        Re: Re: Not as good as it soudns

        See the first AC reply to this... I messed up my post and only posted the first few words. Sorry n.n;;

        reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 20 Nov 2015 @ 11:34am

      Re: Not as good as it sounds

      Stupid formatting error.

      The video's will be kept up IN THE US, while being challenged by an AMERICAN LEGISLATION, even against content NOT ORIGINATING IN THE US.

      Think about that for a second.

      As a Canadian for example, I post content that has largely, again lets say for example, a Canadian, German and Australian audience, and little American penetration.

      An American company DMCA's the... 5 seconds of copywritten lyrics I hummed off key during my video (Yes this is hyperbole not literal). My core audiences get the 'Woops! DMCA sucks' notification, while the rare American who watches me still gets to see my content. Great, but my market has been wrecked even with Youtube's help.

      Even I'm an American making video's with greater offshore market penetration, this has little to no effect on 'protecting' my content or rights, since the greater majority of the global market, the one I am attempting to engage in by using THE INTERNET, gets cut off. My content is now effectively region locked until this all goes to court.

      Not only that, but as a Canadian, does this now mean I have to, on my own dollar, travel to the united states, to stand trial in a US court of law, over US policy, over a video developed in Canada for a largely non-american market? (When things are made for the global market, or even 'just for english speakers', sorry US, you are outnumbered and statistically, it is not the majority about you!) Sure they're giving legal support, but does that count all logistics, or only court costs?

      How about jurisdiction? Will cases come up locally for American content producers, or will THEY have to put up hotel costs, eating out and travel expenses for their court cases?

      reply to this | link to this | view in chronology ]

  • icon
    orbitalinsertion (profile), 20 Nov 2015 @ 11:29am

    All of the above. First thing i thought about when i saw the mention about Google late yesterday. Are we going to stop flushing videos and channels down the drain over automated processes with little or no appeal, and little or no diligence or fairness in handling takedown demands in the first place? Is Google going to step against larger organizations in court? Or, would Teh Goog even consider, perhaps, talking to some of these companies and organizations in general, going forward, about fair use of bits of music, movie/tv clips, or gameplay? Which would, you know, make sense.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 20 Nov 2015 @ 3:34pm

    It's nothing more than a PR stunt.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 20 Nov 2015 @ 5:39pm

    Wherez Da Teef?

    I'm sure the DMCA has provision for penalties and sanctions against entities filing false takedowns. Why aren't those being enforced? Have we allowed the copywrong industry to weaken them to the point of uselessness? Enquiring minds want to know.

    reply to this | link to this | view in chronology ]

    • icon
      That One Guy (profile), 20 Nov 2015 @ 8:28pm

      Re: Wherez Da Teef?

      Theoretically filing a bogus DMCA claim is supposed to be treated as perjury, which carries a potential prison sentence.

      In practice however, the already joke of a law has been weakened to such a degree that unless the one who made the claim flat out admitted, in court, before the judge and several witnesses, that they had considered what they were filing against, determined that it was not theirs and/or was protected as fair use, and knowingly filed the claim anyway, the most they'll face is a slap on the wrist for their 'mistakes'.

      If on the other hand they did all of the above they'd get a slap on the wrist and a pathetically small fine, because can't use the law to punish DMCA abuse, that would be going too far! /s

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 21 Nov 2015 @ 3:42pm

        Re: Re: Wherez Da Teef?

        The penalty of perjury provision is only if you claim to be someone you are not. For example if I claim to own Mickey mouse and I don't that's not penalty of perjury. If I claim to represent Disney when I don't that's penalty of perjury.

        reply to this | link to this | view in chronology ]

        • icon
          That One Guy (profile), 21 Nov 2015 @ 7:21pm

          Re: Re: Re: Wherez Da Teef?

          For example if I claim to own Mickey mouse and I don't that's not penalty of perjury. If I claim to represent Disney when I don't that's penalty of perjury.

          Meaning the 'penalty' clause is completely useless. Anything and everything can be demanded taken down, and when it turns out the one issuing the demands doesn't own the thing in question, they can just say 'I made a mistake'(or even better, 'My bot made a mistake') and it doesn't matter how much damage was caused, they're off the hook.

          But I suppose that's what you get when the law is specifically written to be as one-sided as possible, where the penalties only go one way.

          reply to this | link to this | view in chronology ]

          • identicon
            Anonymous Coward, 21 Nov 2015 @ 8:04pm

            Re: Re: Re: Re: Wherez Da Teef?

            "But I suppose that's what you get when the law is specifically written to be as one-sided as possible, where the penalties only go one way."

            That's what happens when corporations write laws.

            reply to this | link to this | view in chronology ]

  • icon
    John David Galt (profile), 21 Nov 2015 @ 12:15pm

    I'll believe they mean it...

    ... when they reverse their actions taking down the "Photography Is Not A Crime" site!

    reply to this | link to this | view in chronology ]

  • identicon
    Hey You, 21 Nov 2015 @ 7:42pm

    YouTube Shut Down PINAC

    So much for transparency...

    On October 27, YouTube terminated the main channel of Photography is Not a Crime, claiming the channel posts too many videos that are “violent or graphic content that appears to be posted in a shocking, sensational, or disrespectful manner.”

    Because of that, PINAC lost hundreds of videos it had posted on the channel.

    The videos found on the PINAC YouTube channel are typically also aired by national and local television news stations now that police violence has become national news.

    reply to this | link to this | view in chronology ]


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