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.

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