Fair use is effectively dead unless you either have loads of cash or have a large portfolio of copyrighted works to trade with.
The way this has played out copyright holders are basically free to decide in what context they want their works to be used.
Firstly, itâs not (quite) the copyright holder deciding whatâs fair use or not. In this case it is YouTube and it is perfectly reasonable for them to âbe on the safe sideâ.
As Miguel said, the easiest thing to do is host the video elsewhere, even on an Amazon S3 cloud if you donât have your own host. The difference is that you actually have to pay for it (and thereâs a track-back to you, or at least your credit card, if the copyright holder wants to take action).
Google is using digital and analog fingerprinting technology for both audio and video contents. Audio is easier, but video is doable as well. Itâs a large work, but Google wants to do it anyways, they are digitizing every single movie, tv show, even every single second of every single TV channel ever broadcast. They gather all DVDs released, even capture from VHS and stuff like that. Eventually, Google could release ALL OF IT onto Youtube and Google TV, provided that Google sorts out the copyright laws or copyright licencing systems.
Youtube would like all copyright holders to want to allow display of all these videos and simply monetize the views with overlay ads. Youtube is working hard to show to copyright holders that they gain more from allowing unlimited use on Youtube of their contents, even to officially release all the movies, tv shows and more onto Youtube and just monetize it.
Colbert and John Stewart wouldnât be so popular today if it wasnât for Youtube making them extremely popular in 2006-2007 and Viacom has been loosing out on possibly hundreds of millions of dollars in overlay advertising these past 3 years by not allowing Youtube to feature all of the episodes and clips from these shows.
What if someone were to create a video sharing website that required users to accept a ToS every time they uploaded a video that contracted the legal burden of copyrights entirely onto the uploader rather than the host.
You know the content in Public Domain has actually decreased in the last few decades? Itâs appalling.
But there are some who put such content matching technologies to Good Use.
The fine people at MusicBrainz have a software (Picard), which creates a fingerprint of a music file and then checks it against an online database to identify the metadata.
It works fairly well even with poor quality MP3 files, but the DB doesnât seem very complete.
Happened to me, too. Except that the clip in question was a parody containing a few short segments from various movies â a clear case of fair use. But there wasnât much I could do since they didnât identify the content I was supposedly infringing upon (as required be the DMCA Safe Harbor provisions), and I didnât want to lawyer upâŚ
Scott Smitelli here, the author or âFun with YouTubeâs Audio Content ID System.â There are a few interesting points worth mentioning about YouTubeâs implementation. Granted, some of these things may have changed (the original research is a year and a half old at this point) but these facts held true at one point.
First, I discovered that by disputing a copyright claim, your video immediately becomes unblocked/unmuted/un-whateverâd until the owner of the material weighs in. In my case, I uploaded a full, unmodified copy of Stairway to Heaven, which was naturally blocked as matching content from WMG, I believe. I disputed the claim over a year ago, and to this day it is still awaiting a response from the rights holder. My guess is that some of these larger media behemoths have a huge backlog of disputes that they never get through.
Secondly, the audio and video detectors seem to work independently. I learned firsthand from a YouTube employee that the audio matching is performed by a system created by Audible Magic, whereas the video matching was built in-house by Google. Itâs difficult to determine which system is actually doing the match for movies and TV shows.
Assuming your content is being matched by the video portion of the detector, it was at one point possible to thwart the system by flipping the video horizontally â such that text is mirror-imaged and people seem to drive their cars on the wrong side of the road. The YouTube employee I spoke with acknowledged that fact, and said that the rights holders had expressed concern about the loophole. Ultimately, the rationale was that it took too much effort for most users to modify videos in that way, and that ânobody wanted to watch a video that had been flipped,â so the weakness stayed. You could also invert all the colors to get past the system. It looked pretty godawful, but a quick Control+Command+Option+8 on a Mac would invert the screen and make the video colors normal, albeit slightly darker than you would expect.
Whether those tricks still work today, Iâm not sure. But that is the way it once was. Itâs tough to do any real substantive research on YouTubeâs guts, because theyâre so opaque about announcing changes to the system (and understandably so).
Audible Magic has some patents that are viewable at http://audiblemagic.com/company/patents.asp â which give just enough insight into how the system works overall while simultaneously omitting most of the critical information you would need to really dig into it. For a more complete sense on how a competing system works, check out this paper explaining how Shazam works: http://www.ee.columbia.edu/~dpwe/papers/Wang03-shazam.pdf
Iâd love to share everything Iâve learned with anybody who was interested. Iâm parallax AT csh DOT rit DOT edu. Iâm no expert by any means, but I do have a passion for this kind of thing. I try not to have any overt opinions on the state of copyright in this country, and I have nothing against fingerprinting software in general. Itâs a tool which is neither good nor evil. Itâs all in how you choose to use it.
I was unable to upload my wedding video to You Tube. It contained Beethovenâs 9th symphony. Ironically, we choose this piece from a list of material provided by the hotel (Las Vegas) that was not copyright protected. I submitted a dispute with You Tube, but it was rejected. Since I was unable to use You Tube to share this video with family and friends, I have since become embittered with You Tube and do not have much faith other similar services. It seems the root of the problem is deeper than these sites are willing to address.
I think this is really inspiring.
Itâs finally a way for people who worked hard to create content to benefit from and protect their hard work.
American Copyright was created by the framers of the American Constitution to protect the works of American authors and artists.
You have to remember that not huge companies that Copyright helps, itâs the creators and authors.
Just five words:
THEY WANT THEIR TWO DOLLARS!!
@Asperous - thatâs bologna. If youâre a big act, the labels, studios, or shareholders are taking more of the pie than you are. If youâre a small act, you NEED to worry more about obscurity than piracy - giving away your product will make you more money by growing your fan base.
And your history is wrong as well. American Copyright was allowed, after much debate, by the framers of the Constitution as a way to increase the public domain.
There is a way to beat YouTubeâs content system⌠though it really depends on the policies set into place by the copyright holder. If they block based only on the audio match, youâre screwed, but most movie/tv media doesnât.
Flip the video and typically you are good to go.
Simple flip script and people can enjoy it normally⌠yes, itâs that simple to bypass.
Itâs still very impressive and I wouldnât be surprised if they fixed that flip trick soon enough.
@Kevin Richard: The heck? No one holds the copyright on that. Itâs expired, dated, gone, free for all use by whoever wants it.
YouTube messed up or some douchey company laid a false claim.
I get it, I get it, artists need to protect their work, etc.
I live in eastern europe and I needed to personally speak to two artists that I like in order to get some of their music. For stupid legal reasons, Amazon MP3 and iTunes canât work here yet. Iâd freaking love to have Hulu or at least to be able to watch the new video from some popular artist on YouTube but no, they restrict it only to the US or wherever.
So for popular artists and TV shows, I can either order expensive shows in dvd format online (with large shipping costs), or use bittorrent. For minor content makers that are not popular on trackers I have to personally ask them to send me copies.
@MayhemMatthew - Even though the score of the 9th symphony is long out of copyright, recordings of individual performances are still subject to copyright. So unless the hotel hired their own orchestra and chorus to perform the piece (and then released the performance into the public domain), it is still likely subject to someoneâs copyright, which is probably what happened here.
Itâs not as if Youtube is your only option. Just host the video elsewhere, possibly on your own site. Use html5 <video> tags to embed it. If you ever get a copyrights claim you will be able to properly defend yourself the way you should.
Some time ago I wrote a blog post about this matter.
Itâs interesting that the Italian Authority for artistic intellectual property (SIAE) reached a deal for sharing part of the revenues coming from copyrighted contents with artists, making it more affordable for them to give free uploadability on YouTube.
I think this idea is great.
Here is my blog post: http://www.iubenda.com/blog/2010/07/29/youtube-copyright-and-italian-authority-siae/
Andrea Giannangelo
Dont use youtube. Who does anyway?
Next your gonna tell me how great netflix isâŚright??
This isnât a comment thatâs contributing any new knowledge or insight, haha. Just wanted to say that this was a really interesting blog post.
This is a pretty cool stuff. Google at their best. The negative part of this is that one can block a video even if he is NOT the content owner.
Filing against the copyright claim actually enables the video content again.
If the video strengthens your competitor, you block it !
Itâs unethical and indeed a sucking strategy 
The problem I have with YouTube here is that their behaviour reinforces the notion that copyright is always held by large media companies, and infringed by individuals. To be fair to them, this is far and away the biggest use case on their service. Butâas your experience showsâthe dice are loaded to favour this balance. As an individual, Google makes it hard for you to appeal their decisions; and they also make it hard for individuals to stake their own copyright claims.
YouTube may be a popular tool, but the further Google goes down this path, the less populist it becomes. As an individual, you have to remember that you are not their customer, and that your rights are subordinate to the entities that are.