Fair Use?

[Narz]

Any legal eagles or entertainment industry peeps have insight on this?

Awhile back I uploaded a lil' clip of the Simpsons (less than 60 seconds IIRC) onto YouTube. It was from the autodialer episode (one of the best, IMO). Fox almost immediately took it down. Probably because it had "Simpsons" in the title, otherwise it would likely still be up (I could reup but too lazy, plus don't have the episodes on my HD anymore).

But I see other much longer clips plus plenty of little tidbits from movies & TV shows. Also, on the other side of the Internet I've seen (ahem, I mean friends have seen & told me of) clear reuse of copyrighted material.

So what is fair use? Who gets to decide? Is it pretty much up to the judge or the corporation displaying the copywrited material (YouTube for instance) to decide whats fair?

 

[Timsup2nothin]

<----not an expert by any means.

But I think it is just a matter of the copyright holder complaining, or not. Your clip that had Simpsons in the title probably triggered an automated response from Fox, and YouTube would automatically comply.

 

[Valka D'Ur]

There are also cases where someone among the public might flag it for copyright violation (some people have no lives).

Or, in the case of the two or three regular people who upload episodes of my soap every day, Person A might get jealous because Person B's YT channel has the better-quality video and attracts a slew of comments and discussion, and flags Person B's videos for copyright violation even though Person A is also uploading the same show.

It's getting to the point where, if I want to catch the daily episode before it's either removed for copyright or because Disney has decided I'm not allowed to see it (apparently only Americans are allowed to), I have to keep an eye out for it anywhere from noon-1:30 my time.

You may well ask why I don't just watch it on my own TV... the reason is primarily because I hate commercials. Why spend an hour on a show that in reality is less than 37 minutes long from opening teaser to the next day's preview? Plus, there are sometimes some good discussions that get going in the comment sections.

 

[Narz]

You may well ask why I don't just watch it on my own TV... the reason is primarily because I hate commercials. Why spend an hour on a show that in reality is less than 37 minutes long from opening teaser to the next day's preview?

I used to wonder, with all the ways to avoid watching ads (AdBlock, YoutubeCenter, etc.) why don't advertisers try to put a stop to it. And then I figured that those smart enough to block/avoid ads aren't much of a target audience for the crap they're peddling.

Plus, there are sometimes some good discussions that get going in the comment sections.

"Hi, I'm Narz & I read YouTube comments"
Group : "Hi Narz"

 

[illram]

What is fair use?

 

[Timsup2nothin]

What is fair use?

You do realize that actually answering the question asks really takes all the fun out of a thread, right?

 

[jackelgull]

Critics aren't really protected by fair use as they should be. This is especially true of Let's Plays by gamers, because those are what alot of people use to make their decision on whether they'll like a game. If a company feels threatened by a Let's Play exposing how little effort was put into their game they'll pressure to take it off, and YouTube will, and then there is a lengthy appeals process to YouTube followed by threats of legal action by the company. I suppose you can say that these companies haven't actually tested this law, or that this isn't really an example of critics not being protected by Fair Use, but it seems to be in violation of the spirit of the law.

 

[Zelig]

YouTube doesn't allow fair use, it exists to make money via ads.

Host anything that American Media companies might object to (i.e. anything where fair use would be relevant) on your own hosting platform.

Critics aren't really protected by fair use as they should be. This is especially true of Let's Plays by gamers, because those are what alot of people use to make their decision on whether they'll like a game. If a company feels threatened by a Let's Play exposing how little effort was put into their game they'll pressure to take it off, and YouTube will, and then there is a lengthy appeals process to YouTube followed by threats of legal action by the company. I suppose you can say that these companies haven't actually tested this law, or that this isn't really an example of critics not being protected by Fair Use, but it seems to be in violation of the spirit of the law.

YouTube can and will remove videos for any reason they feel like, copyright laws aren't particularly relevant to what they choose not to allow.

 

[wolfigor]

YouTube can and will remove videos for any reason they feel like, copyright laws aren't particularly relevant to what they choose not to allow.

You are technically right, however YouTube does respond to DCMA takedown requests from alleged rights-owner and quickly remove videos.

I wrote "alleged" because there is no penalty for companies abusing the DCMA tadown system.
Bots just do it automatically and there is not regard for fair use.

The uploader have to deal with a cumbersome and risky process to reject the take-down.
Notice that until the (alleged) right-owner doesn't buckle the video remain down: guilty until proven innocent.
In the meantime any gain from advertisement (the share due to the uploader) is redirected to the (alleged) right owner.
That money never goes back to the uploader even when it's proven that the uploader had the right to display that video.

Host anything that American Media companies might object to (i.e. anything where fair use would be relevant) on your own hosting platform.

This is an horrible suggestion.

1. Any service is liable for copyright infringement unless they adhere to the "safe harbour" provisions of DCMA.
Pretty much all western world has agreements with USA for DCMA.

2. Even without hosting the platform, publishing copyright infringing content makes the publisher liable of being sued

3. Hosting on your own platform is expensive if you have any relevant traffic.

<----not an expert by any means.
But I think it is just a matter of the copyright holder complaining, or not. Your clip that had Simpsons in the title probably triggered an automated response from Fox, and YouTube would automatically comply.

YouTube has an automated system (Content ID) to identify copyright infringing content.
Content owners upload their content to a special section of youtube for content ID.
As soon as a video is uploaded this system match the uploaded video and any piece of audio within against the content ID database.
If a match is found, the content owner is notified.
Content owner automatically send DCMA take-down request or any of the other unique YouTube features for them.

Notice that there is no human involvement at all in this process.
So you can forget any attention to fair use.

 

[Zkribbler]

What is fair use?

Subject to some general limitations, the following types of uses are usually deemed fair uses:

Criticism and comment -- for example, quoting or excerpting a work in a review or criticism for purposes of illustration or comment.
News reporting -- for example, summarizing an address or article, with brief quotations, in a news report.
Research and scholarship -- for example, quoting a short passage in a scholarly, scientific, or technical work for illustration or clarification of the author's observations.
Nonprofit educational uses -- for example, photocopying of limited portions of written works by teachers for classroom use.
Parody -- that is, a work that ridicules another, usually well-known, work by imitating it in a comic way.

In most other situations, copying is not legally a fair use. Without an author's permission, such a use violates the author's copyright.

 

[BvBPL]

Educational use aside, for a use to be fair it needs to be transformative and limited.

A clip of the Simpson is not transformative.

Nearly every Let's Play is not limited, and a large number of them are not transformative.

 

[Zelig]

1. Any service is liable for copyright infringement unless they adhere to the "safe harbour" provisions of DCMA.
Pretty much all western world has agreements with USA for DCMA.

2. Even without hosting the platform, publishing copyright infringing content makes the publisher liable of being sued

3. Hosting on your own platform is expensive if you have any relevant traffic.

1. It's not too difficult to find hosts who put some effort into tossing spurious DMCA complaints.
2. I'm not suggesting publish infringing content, content under fair use specifically does not infringe, and I wish more lawsuits were brought against publishers so that the copyright holders would lose the cases and establish precedence.
3. Someone's always paying for the bandwidth.

This is an horrible suggestion.

I would say it's "not very practical" rather than "horrible" - which mostly indicates the sad state of affairs with the copyright chilling effect.

Since YouTube isn't an option anyway (since they'll remove your non-infringing content if big media doesn't like it), your choice is between "not very practical" and "not at all".

 

[Samson]

3. Hosting on your own platform is expensive if you have any relevant traffic.

It is not very expensive at all at sort of "people I have told about it accessing it", and if you get very large numbers of people accessing your content you should be able to easily make more than it costs you.

I am amazed how much rights people are willing to give up to their content (facebook and youtube being obvious examples) just to avoid the relatively minor expense / work required to host content yourself.

 

[Commodore]

Educational use aside, for a use to be fair it needs to be transformative and limited.

A clip of the Simpson is not transformative.

Nearly every Let's Play is not limited, and a large number of them are not transformative.

Not to mention most people who post Let's Play videos try to monetize them. For Fair Use to apply, one cannot be attempting to make financial gain from the copyrighted material unless they have the express permission of the copyright owner.

 

[Zelig]

Not to mention most people who post Let's Play videos try to monetize them. For Fair Use to apply, one cannot be attempting to make financial gain from the copyrighted material unless they have the express permission of the copyright owner.

No, that's not the case.

 

[Arakhor]

If that were true, for instance, games journalism literally would be the publicity arm of the games industry, rather than just looking on admiringly at FIFA.

 

[Commodore]

No, that's not the case.

Seems to be from what I've observed. It seems the vast majority of DCMA requests and copyright infringement complaints are against Youtubers that monetize their videos. Youtubers who do not monetize their videos have a drastically lower rate of those same complaints filed against them.

So it would seem if you want to drastically reduce the chances of your video getting taken down, then there are three options:

1. Don't monetize your videos.
2. Move to another platform.
3. Don't use copyrighted material in your videos.

A prime example of number 3 would be a comparison between Angry Joe's reviews Yahtzee's game reviews. Both of them monetize their videos, yet Angry Joe has had numerous DCMA takedown requests and copyright claims filed against him, while Yahtzee doesn't have any that I am aware of. Both of them also trash on games and make developers look bad in their reviews. What's the difference between the two? Angry Joe shows gameplay footage (copyrighted material) while Yahtzee makes his own animations to visually represent what he is talking about (original content).

 

[Arakhor]

That doesn't mean it's legal to do that, as you seemed to claim in your post.

 

[Commodore]

That doesn't mean it's legal to do that, as you seemed to claim in your post.

Well that was pretty much an abbreviated paraphrasing of Youtube's policy on the matter, and I'm sure Google's lawyers reviewed that policy to ensure everything was legal.

And if it really isn't legal, then Youtubers need to grow a pair and sue. But I think a big reason why we don't see a lot of lawsuits from either side of this issue, is because both sides are deathly afraid of what legal precedent the courts will set.

 

[Arakhor]

Well, as I pointed out in my post, that's simply not right. Since you mentioned Angry Joe and the like though, I'm sure you're aware that he usually gets his videos restored because he has not broken the law on fair use, but whoever's claiming the copyright is probably doing it cynically, either to shut down negative commentary or to grab the revenue off popular videos.