YouTube Puts Some Monetary Weight Behind Fighting For Fair Use: Others Should Too

Back in 2013, we were impressed when the folks at Automattic (the company behind WordPress), actually filed some lawsuits against people who were abusing DMCA takedown notices just to takedown content they didn’t like. Earlier this year, the company also took a strong stand against DMCA abuse by including a “Hall of Shame” in which it called out and shamed particularly egregious takedowns. At the time, we mentioned that other companies should pay attention. Fighting for your users’ rights is important, but too many companies don’t do it (and many just take things down on demand).

Now YouTube has stepped up a bit as well. There have been plenty of complaints about how YouTube — and ContentID in particular — deal with fair use. It’s quite difficult for an algorithm to determine fair use, and that’s part of the reason why we get nervous when copyright system defenders insist that you can automate takedown processes without collateral damage. However, Google has announced that it will promise to pay the legal fees (up to $1 million) of certain YouTubers where takedowns have been issued in cases where YouTube agrees that fair use applies:

We are offering legal support to a handful of videos that we believe represent clear fair uses which have been subject to DMCA takedowns. With approval of the video creators, we’ll keep the videos live on YouTube in the U.S., feature them in the YouTube Copyright Center as strong examples of fair use, and cover the cost of any copyright lawsuits brought against them.

We’re doing this because we recognize that creators can be intimidated by the DMCA’s counter notification process, and the potential for litigation that comes with it (for more background on the DMCA and copyright law see check out this Copyright Basics video). In addition to protecting the individual creator, this program could, over time, create a “demo reel” that will help the YouTube community and copyright owners alike better understand what fair use looks like online and develop best practices as a community.

It is absolutely true that even when video creators believe that their use is non-infringing because it’s fair use, many still won’t issue a counternotice, because the next step, if the copyright holder disagrees, is to go to court. And even if you have a slam dunk case, that can be both time consuming and incredibly expensive. And, of course, if you lose, it can be life-destroying expensive, thanks to the idiocy of statutory damages provisions in copyright law.

The NY Times actually has more details than Google’s own post and includes some examples.

Constantine Guiliotis, who goes by Dean and whose channel dedicated to debunking sightings of unidentified flying objects has just over 1,000 subscribers, is one of the video makers YouTube will defend. Mr. Guiliotis has received three takedown notices from copyright holders of videos that he has found online and posted to his YouTube channel, U.F.O. Theater.

In his videos, Mr. Guiliotis includes the videos he found but also provides analysis and commentary, which YouTube argues is within the guidelines of fair use rules. The site reposted the videos after its review and told Mr. Guiliotis it would defend him against any future legal action. Like the other creators YouTube has selected, Mr. Guiliotis has not been sued for his videos.

“It was very gratifying to know a company cares about fair use and to single out someone like me,” Mr. Guiliotis said.

Sherwin Siy, over at Public Knowledge, notes that Google probably won’t have to spend much money, as any copyright holder who realizes that Google is backstopping the videos will probably (wisely) realize that going to court is less likely to have the desired effect (which is usually just intimidating people into taking down content). However, it’s still an important move in creating extra protection for fair use and in helping to establish a clear bar of what’s considered to be fair use:

But while this means that Google isn’t likely to spend much, if any money, in litigating these cases, the program still does two very important things. First, it does in fact protect those uploaders. By giving these videos a stamp of approval, Google’s legal team will make the sort of person who sends a bogus or careless takedown notice think even harder about filing a bogus lawsuit. That sort of reassurance can be enough encouragement for someone to put back a video. Oftentimes, someone receiving a takedown notice can shy away from exercising her rights to have it put back because doing so exposes her to a lawsuit. With this sort of protection, much of that fear disappears.

But perhaps the more useful aspect of the program is that it sets a clear example of what fair use is. As videos are added to the program, other users will have a useful set of models that show what Google’s lawyers, at least, are confident is fair use. That information can help an everyday YouTube user in ways that more text-based and specific guides (for educators, etc.) might not.

And this collection of videos sets an example for far more than just other video creators. The set of fair uses on display can act as a living example of the predictability of fair use. Too often, the doctrine is considered hazy or indefinite or impossible to determine. And while there are lots of cases that can exist in a gray area, there’s even more cases that actually are pretty black or white. Most people have seen clearly infringing videos; this program will show a wider audience clearly non-infringing videos. That’s particularly important in the face of other countries who have yet to adopt fair use as a limit on their copyright laws, and have been told that it’s too unpredictable for them to rely upon.

Jeff Roberts, over at Fortune goes even further in calling this “a game changer.”

This is why YouTube’s announcement is a game-changer: Copyright-based censorship strategies are no longer risk free. Now, before launching an unjustified DMCA takedown, the claimant will have to weigh the risk of going up against Google and its deep pockets in a lawsuit. (The legal environment could get even more interesting in light of a recent ruling in the Prince “dancing baby” that could make it easier for fair use victors to claim legal fees from those who removed their videos).

I don’t know if I’d go that far. Again, Google is only protecting a “handful” of videos, but at the very least it may scare off some of the more egregious abuses, and that’s always a good thing. Now, we just need even more platforms to recognize that fighting for your users’ fair use rights is important.

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