Talking tech since 2003

YouTube was founded in 2005 by Chad Hurley, Steve Chen, and Jawed Karim. It was acquired by Google in 2006. Today, YouTube is the leader in online broadcasting and sharing of original videos. The YouTube platform allows users of the site to quickly and easily upload videos from their own computers to share with any other YouTube user anywhere in the world. The original goal of YouTube was to provide people with a forum to broadcast themselves and their own personal videos. However, people have since taken to broadcasting everything – including things that were broadcast on television or in other media. Because of this, YouTube has become a copyright infringement playground and a headache for the music, movie, and television industries who want to protect their content from infringement. There is no question that there are cases of blatant copyright infringement on YouTube. More recently, however, many “homemade” videos have been deleted and/or muted as infringing when, in fact, it may be that the claimed infringement is actually “fair use” of the material in question.

Owners of copyrighted material retain the right to authorize who may reproduce their work. Copyrights protect the way an author or creator has expressed himself. Section 107 of the Copyright law lists circumstances where the general public would be permitted to freely use portions of copyrighted material. Reproduction of a copyrighted work would be considered a “fair use” and not infringing for purposes of parody, criticism, comment, news reporting, teaching scholarship and research. Four factors to be looked at in determining whether a use is fair are (1) whether the use is for a nonprofit or commercial purpose, (2) what the nature of the copyrighted work is, (3) what was the amount and substantiality of the portion of the copyrighted work that was used and (4) whether you are using the material in a way that impairs the market for the original work. Generally speaking, if you used a small part of someone’s material and created something new, didn’t use if for commercial gain and didn’t do anything that would cause the copyright owner to lose profits, it would probably be a fair use.

Since January 2009, the YouTube community has been engulfed in a bitter dispute with Warner Music Group. Prior to 2009, YouTube users were entitled to use Warner Music’s songs without fear of videos being taken down or muted. In return for letting YouTube users use the Warner catalog of music, YouTube had agreed to share a portion of its revenue with Warner for any videos that were considered a “match” to their content. However, the agreement has expired and Warner is no longer allowing their catalog to be used on YouTube. As a result, large amounts of videos are being deleted and/or muted.

It is a double pronged problem. First, any agreements made between YouTube and music, movie, and television companies do not last forever. While in effect, there are no issues about infringement for people who are using copyrighted materials. But, if agreements are not renewed this problem will continually arise. Second, not every use of copyrighted material is an infringement. Therefore, some of the videos that are being deleted and/or muted may not be infringing. The current method for copyright owners to protect themselves against copyright infringement on YouTube is by using YouTube’s Content ID tool. This tool is still in its experimental stage. It looks for matches with certain “fingerprints” provided by the copyright owners. But, the tool is now unable to differentiate between blatant infringement and fair use. It can only find the use of material without investigating the nature of the use. For example, in the MoveOn and Brave New Films vs Viacom case, a video named “Stop the Falsiness,” was created by and Brave New Films as a tongue-in-cheek commentary on Stephen Colbert’s portrayal of the right-wing media. It parodied’s own reputation for earnest political activism. Viacom produces Stephen Colbert’s show, The Colbert Report. Viacom demanded that the video be taken off YouTube due to copyright infringement. The video included clips from the TV show “The Colbert Report” and also included other original interviews about the host of the show Stephen Colbert. Viacom later admitted error in taking action against the video since it was a parody and parodies are permitted under fair use. Viacom has since set up a website and an email hotline to allow people to have their takedown notice reviewed by an actual person within one business day and permit a reinstatement if the takedown notice was issued in error. The case has since been dismissed, however, if the tools to flag infringement were better or were actually looked over by a human being, the video would never have been deleted and the case would never have been brought.

While YouTube users are allowed to dispute a removal of one of their videos (if it was removed by the Content ID system) or send a formal DMCA (Digital Millennium Copyright Act) counter-notice (if it was an official DMCA takedown) many of them don’t because they do not have the legal expertise or assistance to challenge it. So what are users of YouTube to do? Not everyone posting videos on YouTube is a lawyer or has knowledge of whether or not their video contains potentially infringing content. While ignorance is not a defense something has to be done to help define what is constituted as infringement. As it stands now, use of the Content ID Tool will flag everything that contains snippets of music, TV shows or other copyrighted material whether it is an infringement or not. For example, most videos in question are created by “regular” people performing (or attempting to perform) their favorite songs. No one but the copyright owner can decide whether or not they feel their work was infringed upon, more needs to be done to help protect their rights while allowing fair use of materials in a community such as YouTube.

We believe that YouTube should work with the major entertainment industries (music, movie, television) to set some guidelines as to what would be acceptable use and what would be considered infringement.  By setting guidelines which users can follow they will know what to expect when they upload a video.  We also believe most users want to abide by the rules and truly do not want to infringe on other people’s works.  A set of easy to read and understand guidelines would be helpful in preventing such infringements from taking place.  While we understand that it will not eliminate the problem of blatant infringement it will definitely help with “accidental” infringement cases.

Additionally, while we agree that fair use is important, we also believe that copyright owners should be able to claim the rights to their works if they feel they were used unfairly and/or without permission.

What do you think about all of this?  Sound off in the comments!

Sources referenced in this article:
“Fair Use.” U.S. Copyright Office. 29 Feb. 2009
“MoveOn, Brave New Films v. Viacom | Electronic Frontier Foundation.” Electronic Frontier Foundation | Defending Freedom in the Digital World. 27 Feb. 2009
“YouTube users caught in Warner Music spat | Digital Media – CNET News.” Technology News – CNET News. 27 Feb. 2009

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