For a company whose entire business model depends on fair use, Google (parent company of YouTube) doesn’t seem too interested in helping others exercise their fair use rights.
Yesterday YouTube released a video called “Copyright School” and announced a new notice and takedown policy that includes requiring accused infringers to watch the video in order to reactivate their suspended accounts. While some aspects of the new policy (such as softening the prior ‘three strikes and you’re out’ policy) are salutary, the Copyright School video has serious flaws. Most importantly, it seriously short-changes fair use, portraying it as an unreliable legal technicality. Watch it below and then I’ll go through some of its shortcomings.
Of course it’s impossible to capture all of the nuances and intricacies of copyright law in a short video, and YouTube and it’s parent company Google are under a lot of pressure from rightsholders to clamp down on alleged infringing content. Still, a company that cares about users and their rights could have done significantly more to empower rather than terrify those users. Two problems with the video really jump out:
The most misleading part of the video is the segment about fair use. The video portrays fair use as an obstacle and a shaky legal defense. A huge block of fine print spelling out the statutory factors literally slams into the cartoon pirate over and over until it shoves him off the screen while the text is read at high speed, like a legal disclaimer at the end of an infomercial. The viewer is advised to consult a lawyer (cheap!) at the first sign of uncertainty, a feeling that is inspired instantly by the “explanation” of fair use in this video. The takeaway: don’t rely on fair use (unless you’ve got a good lawyer on retainer).
Not surprisingly, then, the video also disparages remixes and mash-ups, which rely on a fair use argument to establish they are non-infringing. Never mind that these transformative works are some of the most widely-viewed and provocative videos on YouTube. Copyright School suggests that it’s “safer” if you just shoot your own video rather than comment on or rearrange other people’s work. It’s a good thing Andy Warhol didn’t attend Copyright School!
It’s a shame that Google and YouTube have chosen to frighten their users away from taking advantage of their rights, rather than empowering them to do more, legally as well as technically. Luckily, YouTube itself is a great source of better copyright information. The video below, from Rocketboom, is a perfect antidote to Copyright School. It explains fair use in terms of transformativeness, which is the standard courts actually use these days, and it empowers users to respond to bogus takedowns, rather than suggesting that they avoid trouble by taking videos of their puppies (not that there’s anything wrong with that!).
It’s not hosted on YouTube, but the Center for Social Media also has a helpful video specifically addressed to fair use and remix culture, which goes along with its code of best practices in fair use for online video. Watch it below: