YouTube to Defend Customers’ Fair Use in Court

Copyright can be tricky, especially for comms providers who make other people’s content available on the internet. On the one hand, there is a need to protect property rights. On the other hand, those rights are not absolute; rightsholders cannot deny every use of their property. For example, the American legal doctrine of ‘fair use’ allows others to reproduce material for the purpose of providing news or reviews. However, fair use is determined by case law, not by impossibly detailed rules, and this leads to constant tension. Rightsholders try to minimize the use of their property by others; the rest of the world has an interest in maximizing the scope of fair use. Platforms like YouTube can be caught in the middle of this tug of war. At first they were lambasted for profiting from the piracy of copyrighted songs and films. When they implemented takedown procedures as prescribed by the Digital Millennium Copyright Act (DMCA), they were then criticized for being too quick to accept invalid takedown demands. Now YouTube have said they will be proactive when it comes to defending and defining fair use.

YouTube’s new policy was announced by Fred von Lohmann, Google’s Copyright Legal Director. He blogged that:

YouTube will now protect some of the best examples of fair use on YouTube by agreeing to defend them in court if necessary.

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… 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 in Google’s interest to defend fair use. If the scope of fair use is broader, then more videos can legitimately be uploaded to YouTube, and if fewer legitimate takedown notices are issued, then they will spend less time and money on removing videos. Google currently receive 1,500 takedown demands every minute. However, it would be wrong to be cynical about Google’s motives. In order to comply with the law, we all need to know what the law is, and the rise of the internet means our societies face millions of test cases relating to copyright every day, whilst our law courts are not designed to rapidly and cheaply review all the subtleties of every new dispute. Just consider the fair use clause in the US Copyright Act, and what it would mean to reapply these considerations to every contested YouTube video:

…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.

Everyone benefits from positive and public initiatives that help to define the boundary between lawful and unlawful communication of content. This new YouTube policy sets a fascinating precedent for how a comms business can change its role in public debate, from being the passive subject of legal action brought by others, to becoming a fair arbiter of what the law should be.

Eric Priezkalns
Eric Priezkalns
Eric is the Editor of Commsrisk. Look here for more about the history of Commsrisk and the role played by Eric.

Eric is also the Chief Executive of the Risk & Assurance Group (RAG), a global association of professionals working in risk management and business assurance for communications providers.

Previously Eric was Director of Risk Management for Qatar Telecom and he has worked with Cable & Wireless, T‑Mobile, Sky, Worldcom and other telcos. He was lead author of Revenue Assurance: Expert Opinions for Communications Providers, published by CRC Press. He is a qualified chartered accountant, with degrees in information systems, and in mathematics and philosophy.