Why Fair Use Suffers on YouTube

On the surface, YouTube seems like a natural haven for fair use. The entire system is designed from the ground up to allow the posting of short, low resolution video clips and then embed those clips into blogs and other Web sites for commentary and criticism.

When you look up the four factors of fair use, your average YouTube clip seems to have a pretty good case, despite what the Viacom’s of the world may think.

Granted, many of the videos uploaded to YouTube would fail almost any fair use test, including postings of full episodes of shows and movies uploaded in segments. However, a minute-long clip of The Daily Show or the Colbert Report definitely has a stronger case, especially if it is used in an appropriate way.

But despite these obvious fair use issues, everyday, dozens, if not hundreds, of such clips get taken down by copyright holders.

Part of the problem is rightsholders not showing much concern for fair use. Another part of it is YouTube not actively defending or protecting fair use rights of its users. However, a big chunk of the problem also resides with the way YouTube is structured and how it creates a technology ripe for fair use, but a site that is not.

The Picture of Fair Use

You’re watching your favorite TV show and there’s a one-minute segment that is especially good. You record it, throw it up on YouTube and then write a lengthy blog post about it. Not only are you hyping up the great episode, but offering lots of commentary on the show and that particular portion of it. You’re not making any money from your site and, truth be told, the clip is only a small part of the post, down at the footer even, but it all goes together very well and creates a nice review of the episode and the segment.

Yet, despite all of this attention to making your use of the video as fair as possible, two days later the video stops working, the owner of the content filed a DMCA notice and got the content removed. You could file a counter-notice, but after 10-14 business days, the post will be long forgotten.

It would seem that fair use, even supportive fair use, was crushed under the boot of over-aggressive legal action.

The Problem

However, the problem with your use is that, most likely, the powers that be never actually saw your site. Instead, they visited the YouTube page for the video and made the decision to request takedown.

The problem is that the YouTube page itself does not allow many opportunities for transformative use. Though the embed feature lets you put it in a blog post, surround it with a great deal of text, place it against other videos and add other works around it, YouTube itself does not.

Unless you edit the video itself and place your commentary/criticism or modifications there, the only thing you can do with the YouTube page is add a description, which can be a few paragraphs in length, and post a comment to the clip. This makes it very difficult to ensure that your YouTube use is truly transformative.

In short, every time you submit a clip to YouTube, two uses are actually created. Even if your only intent is to embed it into your blog and create a truly fair use of the work, a non-transformative use is created on YouTube itself and rightsholders feel comfortable that they have the right to request takedown and stop such uses of their work.

Unfortunately, the non-transformative use happens to be the one upon which the “fair” one is hosted. That means, when the rightsholders request takedown of the YouTube clip, all other uses of it go down as well.

It is a vicious cycle that results in a lot of very exciting uses of content being stopped, even when said use is, almost certainly, completely legal.

Fixing the Problem

Unfortunately, the problem evades easy answers. YouTube is built to be a video host and there is not much of a way for the site to enable significantly transformative use without offering editing tools to users or significantly changing the site.

Even if there were significant opportunities offered, unless users took advantage of them, it is unlikely that it would matter. Most users seem to use YouTube as either a place to collect and discover videos or a video host. Though there are a lot of great ways to respond to clips, responses YouTube should make more prominent, most users do not take advantage of those tools.

That being said though, there are still things that both users can do to make the situation better and improve the likelihood that fair use will flourish on the site.

  • Embed Commentary Into the Video: Don’t rely on text and images around it to make your case or provide the transformative use. Take the effort to edit the video and upload your creation rather than the raw footage. It will make your case much stronger.
  • Use Shorter Clips: The trend on YouTube is to use clips several minutes in length. The more you take of a show or movie, the less likely the use is fair, no matter how you transform it. Stick to short clips and take only what you need to prove your point.
  • Have More Original Content: Though this goes hand in hand with the first bullet, the basis of YouTube is to “broadcast yourself” so put your own work into the video and make sure that the copyrighted portion makes up as little of the work as possible.
  • Give Proper Attribution: Be sure to give attribution fair the clip both in the video and in the notes. It may seem silly, especially when the owner of the work is obvious, but attribution often helps bolster fair use arguments by showing good faith.
  • Post a Disclaimer: Wikipedia offers a great example of a fair use rationale. Using such a disclaimer on your YouTube page with any copyrighted content that you are attempting to use in a fair manner may bolster your case.

It is important to keep in mind that YouTube is being patrolled not by corporate lawyers, but by “hashers” specifically trained to spot and request takedown of work they suspect is infringing. In order to ensure that your use is fair and does not get taken down, you have to do what you can to separate your use from the hundreds or thousands of other, truly infringing, clips.

If users are able to push their YouTube pages themselves, and not just their blog postings, into the realm of fair use, companies such as Viacom will no longer be able to ignore those rights. If they do, there will be severe legal consequences, as Diebold found out in 2004.

Conclusions

In the end, if you want to make transformative use of another’s video, the best bet is to simply host it yourself. You are much less likely to be the subject of a DMCA notice that way than if you reply on YouTube or another third-party video site to host it for you.

Though sites such as YouTube are convenient and inexpensive, they are not as fertile grounds for fair use as logic would indicate.

Hopefully, some time soon, a balance will be struck that will both protect rightsholders from non-transformative uses of their work while still protecting fair use rights. Fortunately, there already seems to be some agreement headed that way as even Viacom and Google were able shake hands on that notion.

Though the war is still very much raising, it seems that there is already an air of cooperation forming. Hopefully, we can hit a point soon where that energy takes over and we can all put down our weapons, at least for a bit.

34 Responses to Why Fair Use Suffers on YouTube

  1. Mr. J says:

    I have videos hosted on Youtube, and I was going to take them down out of fear that I will have a DCMA filed on me, but after reading this article I think I'm pretty safe, although, I could take extra precausions for future videos. Thanks for this article, it was vert helpful.

  2. Mr. J says:

    I have videos hosted on Youtube, and I was going to take them down out of fear that I will have a DCMA filed on me, but after reading this article I think I’m pretty safe, although, I could take extra precausions for future videos. Thanks for this article, it was vert helpful.

  3. The only problem I can see with hosting it yourself is if you get a DMCA your whole site could get taken down, not just the video. While that can be great for dealing with sploggers, it can be a pain in other situations.

  4. JB says:

    Mr. J: The odds of you getting a takedown for a video that is not infringing in some way is slim to none. They are being vigilant and are pursuing cases that might have fair use arguments, but I wouldn't worry abuot the DMCA issues unless you're actively using other people's content.I would, however, worry about the rights you sign over to YouTube when registering, be sure to listen to the latest Copyright 2.0 Show for that.Jeremy: True, but the odds of getting DMCAed when you only host the video on your site and your only use is clearly fair is slim to none. Still, the concern is valid.Perhaps a middle ground then, a third-party file hosting service like S3?

  5. There are more videos on YouTube that are made without any fair use in mind than those that are made completely innocently and fairly. So it is expected of the "hashers" to request take down of everything that is infringing. I guess checking whether the infringing is fair or unfair would take added effort, time and money which no one has to spare. Your tips to avoid the same were good. Need to see in practice how well they work.

  6. JB says:

    Recording Studio: I have to agree with everything you said but one minor point about the expense. As expensive as it might be to consider fair use and research claims, the losses from a wrongful takedown suit could be much greater, in the hundreds of thousands per piece.Viacom and others need to balance the risk, cost and reward carefully here.

  7. I don’t know Jonathan, I think your Fair Use guidelines are somewhat misleading. The size of the clip and acknowledging the source don’t really secure your usage as Fair Use.

    Quoted from the Copyright Act…
    —–
    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.
    —–

    William Patry is senior copyright council for Google. This is what he has to say about Fair Use. I’ve edited it (you can read the whole post at http://williampatry.blogspot.com/2007/05/barton-beebes-fair-use-study.html) He’s a very good writer and it’s a good blog.
    ————–
    Patry says….
    I have been studying fair use seriously for over 25 years. I have read every English and U.S. fair use/fair dealing decision I could find, many of them many times over; I have read a voluminous amount of commentary on the subject; read and re-read the legislative history of Section 107 and spoke to those involved in that process; testified before Congress on the subject, and as a Congressional staffer, I was heavily involved in the 1992 amendments on fair use and wrote the House Judiciary Committee report on the subject; as a Policy Planning Advisor to the Register of Copyrights I went to Brussels to discuss with European Union officials how fair use works and how it might work with software reverse engineering; as a law professor I spent years teaching the subject; …. [snip]

    Yet, despite all this concentrated attention, I doubt I understand fair use much better than when I was a law student… …there are reasons anyone might feel uneasy about coming to grips with the subject: it is ad hoc, fact-oriented, allegedly completely equitable in nature, and dependent on a shadowy weighing of vague factors, to say nothing of the luck of the draw in the decisionmaker.

    ————-

    I would caution about depending too heavily on “fair use” as an argument for using content which is not your own – at least not without legal council.

  8. I don’t know Jonathan, I think your Fair Use guidelines are somewhat misleading. The size of the clip and acknowledging the source don’t really secure your usage as Fair Use.

    Quoted from the Copyright Act…
    —–
    The distinction between “fair useâ€? 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.
    —–

    William Patry is senior copyright council for Google. This is what he has to say about Fair Use. I’ve edited it (you can read the whole post at http://williampatry.blogspot.com/2007/05/barton…) He’s a very good writer and it’s a good blog.
    ————–
    Patry says….
    I have been studying fair use seriously for over 25 years. I have read every English and U.S. fair use/fair dealing decision I could find, many of them many times over; I have read a voluminous amount of commentary on the subject; read and re-read the legislative history of Section 107 and spoke to those involved in that process; testified before Congress on the subject, and as a Congressional staffer, I was heavily involved in the 1992 amendments on fair use and wrote the House Judiciary Committee report on the subject; as a Policy Planning Advisor to the Register of Copyrights I went to Brussels to discuss with European Union officials how fair use works and how it might work with software reverse engineering; as a law professor I spent years teaching the subject; …. [snip]

    Yet, despite all this concentrated attention, I doubt I understand fair use much better than when I was a law student… …there are reasons anyone might feel uneasy about coming to grips with the subject: it is ad hoc, fact-oriented, allegedly completely equitable in nature, and dependent on a shadowy weighing of vague factors, to say nothing of the luck of the draw in the decisionmaker.

    ————-

    I would caution about depending too heavily on “fair use” as an argument for using content which is not your own – at least not without legal council.

  9. JB says:

    Mr. J: The odds of you getting a takedown for a video that is not infringing in some way is slim to none. They are being vigilant and are pursuing cases that might have fair use arguments, but I wouldn’t worry abuot the DMCA issues unless you’re actively using other people’s content.

    I would, however, worry about the rights you sign over to YouTube when registering, be sure to listen to the latest Copyright 2.0 Show for that.

    Jeremy: True, but the odds of getting DMCAed when you only host the video on your site and your only use is clearly fair is slim to none.

    Still, the concern is valid.

    Perhaps a middle ground then, a third-party file hosting service like S3?

  10. There are more videos on YouTube that are made without any fair use in mind than those that are made completely innocently and fairly. So it is expected of the “hashers” to request take down of everything that is infringing. I guess checking whether the infringing is fair or unfair would take added effort, time and money which no one has to spare. Your tips to avoid the same were good. Need to see in practice how well they work.

  11. JB says:

    Recording Studio: I have to agree with everything you said but one minor point about the expense. As expensive as it might be to consider fair use and research claims, the losses from a wrongful takedown suit could be much greater, in the hundreds of thousands per piece.

    Viacom and others need to balance the risk, cost and reward carefully here.

  12. bright says:

    http://theknightshift.blogspot.com/2007/08/viacom-hits-me-with-copyright.html

    thought you’d be interested in this backflip. there are some insightful comments sprinkled in with the lawsuit advocates.

  13. bright says:

    http://theknightshift.blogspot.com/2007/08/viac

    thought you’d be interested in this backflip. there are some insightful comments sprinkled in with the lawsuit advocates.

  14. JB says:

    John: I'm sorry that your comment didn't go through. I have to agree with what you said though. The problem with fair use is that it is handled on a case by case basis. I can tell you what *should* make your use fair and what likely would not, but I have no freaking clue what will or will not pass when you actually get in front of a judge. This was intended to be a more general look at the issue. However, your point is well taken and is something I've brought up in the past.That being said, if we can not rely on fair use at all, even under the most basic of circumstances, then having the provisions makes no sense. I agree with what you're saying, but I shudder at the thought of living in such a world where every reliance on fair use first requires consultation with an attorney. When I do my DMCA Seven series, I should, in theory consult with my lawyer(s) about my use of company logos.I don't because I am confident the use is fair, both in terms of trademark and copyright. Still, the point is taken. Reliance on fair us is always a risky gambit. I agree totally.Bright: Actually, we covered that in the last episode of the Copyright 2.0 show and it was one of the (many) stories that inspired and necessitated this article. Between this, the NFL copyright notice takedowns, the million or so Daily Show takedowns and other Viacom foot-stompings, this just had to be said.

  15. JB says:

    John: I’m sorry that your comment didn’t go through. I have to agree with what you said though. The problem with fair use is that it is handled on a case by case basis. I can tell you what *should* make your use fair and what likely would not, but I have no freaking clue what will or will not pass when you actually get in front of a judge.

    This was intended to be a more general look at the issue. However, your point is well taken and is something I’ve brought up in the past.

    That being said, if we can not rely on fair use at all, even under the most basic of circumstances, then having the provisions makes no sense. I agree with what you’re saying, but I shudder at the thought of living in such a world where every reliance on fair use first requires consultation with an attorney. When I do my DMCA Seven series, I should, in theory consult with my lawyer(s) about my use of company logos.

    I don’t because I am confident the use is fair, both in terms of trademark and copyright.

    Still, the point is taken. Reliance on fair us is always a risky gambit. I agree totally.

    Bright: Actually, we covered that in the last episode of the Copyright 2.0 show and it was one of the (many) stories that inspired and necessitated this article. Between this, the NFL copyright notice takedowns, the million or so Daily Show takedowns and other Viacom foot-stompings, this just had to be said.

  16. [...] Why Fair Use Suffers on YouTube – Plagiarism Today: “If users are able to push their YouTube pages themselves, and not just their blog postings, into the realm of fair use, companies such as Viacom will no longer be able to ignore those rights.” [...]

  17. bright says:

    ah! sorry… that's what i get for skipping the podcasts! it's nothing personal… i need a new laptop. i'm sure you are every bit as insightful and erudite as i would hope.

  18. bright says:

    ah! sorry… that’s what i get for skipping the podcasts! it’s nothing personal… i need a new laptop. i’m sure you are every bit as insightful and erudite as i would hope.

  19. JB says:

    Bright: Yes, that is your punishment. However, I think you made two typos in your comment. I believe that should be inciting and rude. That seems to better describe the podcast most weeks.

  20. Great article. I'll be glad to direct some of youtube buddies to it.

  21. L says:

    A friend of mine had his Fair Use review of a Super Nintendo game taken down by ESPN. Super Nintendo. We're talking 1992 video games, here.

    Meanwhile, the “This is Sportscenter” videos that random people uploaded two years ago still stand.

    I intend to do fair use reviews of anime and movies, but it has been proven time and time again that if you review anime, you will be banned. A fraudulent DMCA claim was filed by Studio Ghibli against a reviewer last month.

    Hell, prominent anime voice actor Johnny Yong Bosch, who had permission from his company to review anime on a show called “Anime TV,” was BANNED by YouTube because they only FEARED someone would file a DMCA claim against him!

    I'm sick of people saying that we shouldn't blame YouTube. YES WE SHOULD. If it's something that may even have an inklet of potential copyright infringement, YouTube usually jumps the gun and deletes it, citing that the video is, “of an inappropriate nature.” They're cowards that have zero respect for Fair Use and the users that got them to where they are today.

    No one is safe from fraudulent, frivolous copyright claims on YouTube. If you're a 10-year-old kid with 5 or more YouTube accounts, you have the power to bring down almost any director or content creator you don't like.

    YouTube favors the flagger over the content creator, 99.9999% of the time (Exceptions: smosh, LisaNova, lonelygirl15).

    YouTube's management is a disgrace.

  22. Real fast, in your exceptions list, you forgot the Angry Video Game Nerd.

    As for blaming YouTube, I have mixed feelings. On one hand, the copyright climate they are in is not their fault. Viacom and others put them in this constant state of fear and until the courts come down on this issue. YouTube has been a target since day one and they know it. As such, they feel the need to go above and beyond to keep themselves on stable legal ground.

    On the other, most video hosts don't have these issues. I don't see problems like this on Revver, for example. The reason is that they have balanced DMCA procedures. They value fair use and protect users from false notices. The DMCA gives hosts that right if they are willing to stand next to them in a lawsuit.

    The problem is that YouTube, and thus Google, has the funding and the lawyers to make such a stand, but also much more to lose. So, rather than fight it out over individual users, they fight the larger battle and often times trample the little guys for what they see is the greater good.

    Whether or not they are right will depend on the verdict. I guess we'll see…

    Thank you for your comment!

  23. Josh Chacin says:

    Though if your site is no for profit. I don't think they can take you down for DMCA. But I honestly don't know.

  24. I hate to be the one to say it, but that is not true. If a site is non-profit, that only affects damages in a courtroom in most cases, not whether it is actually infringing. Since there is infringement, it can be taken down with a DMCA.

  25. Robert says:

    First of all, i'm sorry if i'm not in the right place and/or right time to ask it, but i'm desperately curious. i've tried to search the anser via google but no satisfying answer. then i remember about this blog, i typed in the search box above with "manga" –> no result, then i typed "anime" –> here i am now :) I have one blog that mainly served the purpose of collecting manga&anime link download and then put them in my blog. Don't worry, i didn't claimed it as mine, i mentioned it per each post if the credit belongs to the original scanlator/ripper.Is it illegal for doing so?i mean for posting the download links for manga scanlation and/ anime?I don't know about copyright/DMCA in manga/anime but if it's a hollywood movie ( for an example ) i'm sure it's illegal

  26. Craig Nansen says:

    In education we have the opposite issue – there are great videos uploaded by the copyright holder (often other teachers) that are there for us to use in classroom settings. However, many schools block YouTube so that teachers can't access those videos from their classrooms.

    Do educators, using Fair Use, have the right to download these videos to their computer for use in the classroom?

    From YouTube's site:

    Content on the Website is provided to you AS IS for your information and personal use only and may not be downloaded, copied, reproduced, distributed, transmitted, broadcast, displayed, sold, licensed, or otherwise exploited for any other purposes whatsoever without the prior written consent of the respective owners.

    • You've actually got three separate issues here. The first is the fair use one, the second is the DMCA and the second is YouTube's TOS.

      The fair use issue is difficult to predict but since educators have such great leeway on fair use issues it seems likely you would have clearance here. It would depend n on the specifics of the actual case, but I think you'd likely be starting from a good vantage point, a transformative use for educational benefit, etc.

      The DMCA could be an obstacle depending on if YouTube and rightsholders considered the use of YouTube to be a digital lock that is being "circumvented" by you downloading it. Even if you are intending to make a fair use of the work, it might be an infringement of the DMCA.

      You can read more about this specific area here:

      http://www.chillingeffects.org/anticircumvention/

      Finally, you have YouTube's TOS, which strictly forbids downloading. Even if it is legal under the DMCA and fair use, if you wave those rights under the TOS, it could be a breach of contract and a possible violation of the computer fraud and abuse act.

      Though there are questions as to whether a TOS can apply to those who don't expressly agree to it (IE: Non-registered users) but this is by in large a new area of law that hasn't been widely tested.

      That being said, it doesn't seem as if YouTube is doing much to stop downloading of their videos. Many sites make the process easy and operate in the open.

      Do I think it's technically legal? I don't know. Too many hard questions to get a good answer. Do I think you'd ever get in legal trouble for it? Probably not. YouTube doesn't seem to press the downloading issue and no rightsholder is going to go after you, especially if they gave permission for educational use.

      Of course, you could always try to brow beat your IT staff into allowing limited YouTube usage. But I suppose the odds of that are slim.

      Hope this helps!

  27. Craig Nansen says:

    In education we have the opposite issue – there are great videos uploaded by the copyright holder (often other teachers) that are there for us to use in classroom settings. However, many schools block YouTube so that teachers can’t access those videos from their classrooms.

    Do educators, using Fair Use, have the right to download these videos to their computer for use in the classroom?

    From YouTube’s site:
    Content on the Website is provided to you AS IS for your information and personal use only and may not be downloaded, copied, reproduced, distributed, transmitted, broadcast, displayed, sold, licensed, or otherwise exploited for any other purposes whatsoever without the prior written consent of the respective owners.

    • You've actually got three separate issues here. The first is the fair use one, the second is the DMCA and the second is YouTube's TOS.

      The fair use issue is difficult to predict but since educators have such great leeway on fair use issues it seems likely you would have clearance here. It would depend n on the specifics of the actual case, but I think you'd likely be starting from a good vantage point, a transformative use for educational benefit, etc.

      The DMCA could be an obstacle depending on if YouTube and rightsholders considered the use of YouTube to be a digital lock that is being "circumvented" by you downloading it. Even if you are intending to make a fair use of the work, it might be an infringement of the DMCA.

      You can read more about this specific area here:

      http://www.chillingeffects.org/anticircumvention/

      Finally, you have YouTube's TOS, which strictly forbids downloading. Even if it is legal under the DMCA and fair use, if you wave those rights under the TOS, it could be a breach of contract and a possible violation of the computer fraud and abuse act.

      Though there are questions as to whether a TOS can apply to those who don't expressly agree to it (IE: Non-registered users) but this is by in large a new area of law that hasn't been widely tested.

      That being said, it doesn't seem as if YouTube is doing much to stop downloading of their videos. Many sites make the process easy and operate in the open.

      Do I think it's technically legal? I don't know. Too many hard questions to get a good answer. Do I think you'd ever get in legal trouble for it? Probably not. YouTube doesn't seem to press the downloading issue and no rightsholder is going to go after you, especially if they gave permission for educational use.

      Of course, you could always try to brow beat your IT staff into allowing limited YouTube usage. But I suppose the odds of that are slim.

      Hope this helps!

  28. dadsaa says:

    This is stupid,you won't change anything :) :) :)

  29. Dar says:

    Old but still relevant article.So videos that make use of movie/tv clips for the purposes of criticism/reviews (assuming the criticism/reviews are interspersed with the clips) are Fair use?

  30. Nath says:

    This is a nice informative article but not exactly what I was looking for. I was looking for something about the way people keep taking other peoples personal videos (like for example pet vids) and trying to take credit for them.

Leave a Reply

STAY CONNECTED