Google, YouTube and Fair Use

There sure is a lot of the talk about video sharing and copyright infringement lately. Since Google laid down the green, rights holders are sleeping with visions of dollar signs dancing in their heads. Here’s a little something from Steve Bryant’s Google Watch blog on eWeek:

According to the Wall Street Journal, lawyers from several media companies, including News Corp., NBC Universal and Viacom, say that YouTube could be liable up to $150,000 per unauthorized video. Executives hope the possibility of legal action could prompt YouTube to improve terms it offers the media companies.

Google Watch : Media Titans: YouTube Liable up to $150,000 per Video

He goes on, citing Fred Von Lohman of the EFF, to suggest that YouTube us covered by the safe harbor protections of the DMCA, which, according to Bryant, says “that companies that responsibly remove infringing content and do not induce users to upload that content are not liable.”

That’s good news for Google, but what protection is there for the growing number of people who are using commercial content or characters to create new media? Back in May, before the big money was part of the equation, engadget ran a good column on YouTube and the fair use of copyrighted materials:

It’s this compliance with the spirit of copyright law that would make YouTube an awfully tough opponent should content owners ever try to challenge YouTube’s right to post content. Will big media content owners cross the line with their removal requests? Will YouTube be forced to take a stand? Will they be the advocates of Fair Use that we hope they will be when the content isn’t as cut and dry as “Lazy Sunday?” It’s unclear. What is clear is that YouTube might just have the ability to wrestle back some of the content-rights users have been slowly losing. Let’s hope they exercise it when the time comes.

The Clicker: YouTube and fair use, a match made in heaven – Engadget

So what does fair use exactly cover? I thought it might be helpful to go to the source and get the details from the U.S. Copyright Office. Here is their information on fair use:

One of the rights accorded to the owner of copyright is the right to reproduce or to authorize others to reproduce the work in copies or phonorecords. This right is subject to certain limitations found in sections 107 through 118 of the Copyright Act (title 17, U. S. Code). One of the more important limitations is the doctrine of “fair use.” Although fair use was not mentioned in the previous copyright law, the doctrine has developed through a substantial number of court decisions over the years. This doctrine has been codified in section 107 of the copyright law.

Section 107 contains a list of the various purposes for which the reproduction of a particular work may be considered “fair,” such as criticism, comment, news reporting, teaching, scholarship, and research. Section 107 also sets out four factors to be considered in determining whether or not a particular use is fair:

1. the purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes;
2. the nature of the copyrighted work;
3. 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.

The distinction between “fair use” and infringement may be unclear and not easily defined. There is no specific number of words, lines, or notes that may safely be taken without permission. Acknowledging the source of the copyrighted material does not substitute for obtaining permission.

The 1961 Report of the Register of Copyrights on the General Revision of the U.S. Copyright Law cites examples of activities that courts have regarded as fair use: “quotation of excerpts in a review or criticism for purposes of illustration or comment; quotation of short passages in a scholarly or technical work, for illustration or clarification of the author’s observations; use in a parody of some of the content of the work parodied; summary of an address or article, with brief quotations, in a news report; reproduction by a library of a portion of a work to replace part of a damaged copy; reproduction by a teacher or student of a small part of a work to illustrate a lesson; reproduction of a work in legislative or judicial proceedings or reports; incidental and fortuitous reproduction, in a newsreel or broadcast, of a work located in the scene of an event being reported.”

U.S. Copyright Office – Fair Use

U.S. Copyright law is incredibly complicated but fair use leaves room for people to use copyrighted materials. The fact of the mater is that most people who are posting videos containing, or based upon, copyrighted materials are: not doing so for commercial purposes, they are not typically using the entire (or even a substantial portion of) the copyrighted work and they are not having an impact on the market value of the copyrighted materials.

Most of the seem to be used for criticism, news or parody – all of which have been recognized in the past as examples of fair use. Will a 42 second clip of Dennie Green’s post game press conference decrease my likelihood to watch ESPN in the future? Probably not. Would I have seen that clip had it not been on YouTube? Again, probably not. There is value in allowing people to share their ideas and feelings and interpretations – even when copyrighted materials form the foundation of that expression. Clearly, if someone is obviously infringing, their content should be removed – but it sounds like YouTube has been doing that already.

Some companies seem to understand that YouTube and similar services now and in the future represent an opportunity. The “Director Videos” are a good example. If a copyright owner sees that their media is being shared frequently, they ought to post the clip themselves and become a part of the community rather than an advisory.

[tags] Google, fair use, youtube, copyright, Steve Bryant, eWeek, engadget, ESPN [/tags]

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