YouTube’s “Fair Use Massacre”

By Casey Lynn
Contributing Writer, [GAS]

Thanks to a breakdown in a previous licensing agreement between YouTube and Warner Music, last month there was something of a witch hunt for any videos containing any songs from Warner’s library.

However, whereas most of the time when YouTube deletes videos due to a DMCA takedown notice, these videos are usually wholesale copies of content–for example, TV or movie clips, or music videos. Now, the videos that are disappearing are getting closer and closer to fair use territory. Early in the month, a number of fanvids were taken down, and now you’re not even allowed to sing a song. A large part of the reason may be automatic filtering systems designed to blindly recognize the music, leading to the same fate no matter what kind of video it is.

Many of you may be familiar with Corey Vidal, who did the Star Wars a cappella tribute:

The problem with all of this, of course, is that the law is unclear. Fair use is a subjective, four-factor test determined by courts on a case-by-case basis. Each factor has to be considered and weighed, and the weight of these different factors has actually varied in court decisions over the years. The Copyright Act (including the fair use doctrine) was written in 1976, when copyright really only involved professionals. The end user as part of the equation didn’t come up at all until the VCR was invented and the law had to deal with the idea of consumers making copies–and still, no one pictured the kind of wide dissemination that the Internet has made possible. Even the DMCA was written more than ten years ago, and these takedown measures that Warner is relying on were designed to deal with file-sharing, not with teenage girls singing “Winter Wonderland” in their bedrooms.

Of course, as much as I’d like to paint Warner as the big bully in all of this, it’s not as if they don’t have a legal leg to stand on. Even in the case of cover songs, someone owns that copyright. Not in the sound recording (i.e. Bing Crosby’s version of “Winter Wonderland”), but in the underlying composition. To cover a song, you have to deal with compulsory licenses or performing rights. And it’s still not clear as to whether something like a YouTube video counts as a public performance. Again, were these designed to deal with a noncommercial Internet video? No, but in copyright the law generally doesn’t distinguish between commercial and noncommercial use. Even in fair use, that’s only part of one of the four factors. (And for those of you who aren’t in the U.S., don’t even get me started on international copyright issues.)

The bottom line is that this is a really sticky mess. However, I suspect that Warner is hurting more from the bad PR than any damage that could have been done by these YouTube videos. Plus, they may want to remember a certain dancing baby. Last year, when Universal Music had that video taken down due to their copyright in the Prince song that’s playing in the background, the mother who posted the video took them to court (under a little-used cause of action for when a copyright holder sends a takedown notice in bad faith). The court said that a copyright holder must make a good faith effort to determine whether a video could be considered fair use before sending a takedown notice.

First the VCR, then Napster… now YouTube/remix. This is just the latest copyright crisis, and until there’s some actual law on the subject, everyone’s just going to keep flailing in the dark.

[Picture source: Flickr]

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6 Responses to YouTube’s “Fair Use Massacre”

  1. Ahhh…that explains why Warner blocked one of my videos last month! It had been up and live for about 6 months, and it was a cover version of a somewhat obscure song (Prodigal, by Porcupine Tree). I wondered initially if the artist or label had specifically sought my version out, or if it was a more global effort. The funny thing is, almost every one of my YouTube videos contain someone else’s song, with myself playing on top of it. In my opinion, that’s fair use. I state clearly in the videos who created the original song, and that i’m just playing along to it. Is warner going to stop me from playing drums with their music in my headphones now?

  2. Ahhh…that explains why Warner blocked one of my videos last month! It had been up and live for about 6 months, and it was a cover version of a somewhat obscure song (Prodigal, by Porcupine Tree). I wondered initially if the artist or label had specifically sought my version out, or if it was a more global effort. The funny thing is, almost every one of my YouTube videos contain someone else's song, with myself playing on top of it. In my opinion, that's fair use. I state clearly in the videos who created the original song, and that i'm just playing along to it. Is warner going to stop me from playing drums with their music in my headphones now?

  3. The short answer is, yes, they could. Attribution actually doesn’t matter in copyright law or fair use – except for maybe normatively. It is part of some Creative Commons licenses though.

    However, you’ll probably be okay. Warner and Universal Music seem to be the worst for arbitrarily taking stuff down; other labels don’t seem to be doing so much.

  4. The short answer is, yes, they could. Attribution actually doesn't matter in copyright law or fair use – except for maybe normatively. It is part of some Creative Commons licenses though.

    However, you'll probably be okay. Warner and Universal Music seem to be the worst for arbitrarily taking stuff down; other labels don't seem to be doing so much.

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