YouTube vs. Fair Use

In YouTube: The Big Copyright Lie, I described my love-hate relationship with YouTube, at least as it existed in way back in the dark ages of 2007.

This is a companion discussion topic for the original blog entry at:

Hm. I might have to go with youtube on this one.

In the context of your blog post, yes, fair use. It’s a small clip out of an editorial.

In the context of youtube – which is the context you were uploading the clip to, after all – it’s just a 90 second clip from their movie. No editorial, it’s the entire thing. Someone browsing youtube who finds it will have no idea that there was a blog connected to it.

For Fair Use protection, you’d have to make a video of someone reading your blog post, with the movie at the appropriate time.

The video matching is just an extension of audio matching, as perfected by Shazam, who sold the patent to BMI (RAII fame).

There was someone who implemented it recently and got a cease and desist; its a good story and a wow tech:

Part of the problem, of course, is that the copyright industry wishes to erode fair use. In a world where fair use was actually properly legislated, DVDs would have been required to have a quoting back door to the copy protection. Instead the presumption is of copyright violation, and fair use must be fought for every single time.

Legalities aside, I believe the copyright holders are repeating the mistakes made by the music industry when dealing with Napster.

By focusing on restricting access to content rather than propagation of it, they might make a few extra bucks here and there but overall they are leaving money on the table.

Had they embraced Napster and turned it into the equivalent of Amazon MP3s, they would have made unimaginable amounts of money in $1 song downloads. Yes, there would still have been unauthorized sharing, but a lot of people, myself included, would rather pay the $1 for a safe and unencumbered download than deal with all the hassles of trying to get a song for free.

One of my videos <> was similarly tagged as well which astonished me as the song is in the background coming over tinny speakers and the audio was converted to lowest quality mono possible to reduce file size.

The technological feat is definitely impressive and beyond my ability to imagine. The direction we are headed is a lose-lose in the long run for everyone.

“Unfortunately, my fair use claim was denied without explanation by the copyright holder.”

What part of copyright law gives copyright holders the right to determine if uses are fair? None I know of. Of course, that’s a large part of the point; if copyright holders controlled fair use, we’d never see critical reviews, parody, satire, etc.

If only YouTube would invest as much R&D funding in eliminating stupid comments.

There are several football clips which image is mirrored, and then uploaded, to fool the algorythm.

The problem here is context. You can’t just use copyrighted material in articles like this – no matter how short – unless you are commenting on the copyrighted material itself. (Or parodying, but that wouldn’t apply here.)

If your blog entry was a review of Better Off Dead, you could invoke Fair Use and use excerpts from the film – provided your original contribution to the article was substantially greater than the amount contributed by the work you excerpted. (For example, your review was 90% original material by you, and only 10% clips from the movie.) But if you’re just using the clip to make a point about something else, that usage is subject to copyright law, and it’s not allowed without an agreement between you and the copyright holder.

Along those same lines, every time you see a cartoon inserted into a Powerpoint presentation, that kind of thing is subject to copyright. Artists often don’t receive compensation for it, but they’re still entitled to copyright for the use of their work. Fair Use is not just something you can claim because you only infringed on copyright a little bit.

I know people feel very passionately about this subject, but this is the way the law works, no matter how many people misunderstand or disregard it.

I believe the problem is the length of your clip. 90 seconds is a long time in terms of both new media such as viral clips and the land of the animated gif as well but surprisingly also in traditional media where TV news segments are only 1 minute 10 seconds long.

I’ve been trying to explain this to content promoters for a while, if the news can sum up a story in 70 seconds, why do you think you need 300?

“The idea that YouTube can (with the assistance of the copyright holders) really validate every minute of uploaded video against every minute of every major copyrighted work is unfathomable to me.”

Close, but not really. YouTube matches uploads against fingerprint files uploaded to (or generated from video files uploaded to) YouTube. Not all copyrighted content, just content uploaded to YouTube by a YouTube content provider.

I have to say, I love the bit where they get you to type in the good faith paragraph.

Well, to play the devils advocate:

How can anybody [youtube|copyright holder, etc] determine between what is Fair Use and what is one in a string of sixty 90-second clips that in total constitute the entirety* of a 1h30min movie disguised as fair use? Your 90-second clip is uploaded without context (ie. it’s uploaded without reference to your blog, which is what really constitutes the Fair Use).

And as other mentioned, it’s only the clips that have been added by copyright holders that are protected (so it’s not matching against infinity, but only those that wish to seek protection).

*These clips exists in YouTube by the bucket, movies, tv-shows, you name it.

Jeff you have your own server, why do you need someone else to host the video for you?

Interesting article and amazing technology.

Forgive me if I don’t understand all the subtleties of the situation, but what is stopping you from hosting the clip yourself and serving it from your blog?

The underlying technology of Content ID is from a company called Audible Magic

So the solution to the legal conflict is that you, the user, are guilty until you can prove or plead your innocence. And the plaintiff gets to play the judge?

Your situation is probably covered by fair use and your free speech rights are being abused by a copyright holder. The only person who should ever be allowed to decide if it is fair use is a judge in a court room, not the person who doesn’t want you to use their content.

I talked about this in 2007 on my site:

The problem with fair use and YouTube is, as at least one commenter above pointed out, that something that is a fair use on your site, after you embed it, may not be on YouTube’s site.

However, I have to agree with others here, the copyright holder shouldn’t get to decide what is and is not a fair use. I agree YouTube had cause to block the video but, after you made a fair use claim I think it should have been on the copyright holder to either file a proper DMCA notice or take the matter into court.

As it sits right now, rightsholders can rely on the content ID system to shut down fair uses of their work and not expose themselves as they would with a DMCA notice. I’m very impressed with the YouTube system and how they favor creator choice, but there does need to be some balance.

Actually YT allows hiding movies from public list, so the content wouldn’t be shared context free. It would be only available to people, who you want to share it with. But does it change anything for Youtube?

Btw, I’m surprised with your being surprised, as Sony Ericsson has been including their TrackID app for few good years now. Surely same process applied to video is far more complex, but let’s not compare Gracenote (acquired by Sony) with Youtube.

An interesting side note: I received a Content ID Match warning about a clip I uploaded from a very obscure 1990 episode of Saturday Night Live that’s never been online in any form – ripped, by me, from a VHS recording. This episode simply didn’t exist online.

This means that media companies are not only sending YouTube reference files for current released work, but also massive archives of legacy video they’ve digitized, but never released online. I want to see those archives!

Wow, I can’t believe they can actually do that, from a technical standpoint. And from a “I can’t believe people are so STUPID” standpoint, the German courts just ruled what against YouTube?!?