Stephen Pate, NJN Network with story from Electronic Frontier Foundation, February 10, 2009, Charlottetown, PEI, Canada
Warner Brothers music has been fighting with YouTube over getting a bigger slice of YouTube’s revenue and putting copyright pressure on YouTube. That’s ironic since Jack Warner stole as much as he could. Remember those Bugs Bunny cartoons with Wagner and Rossini opera music? Warner like that music, not because he was artsy, but because it was free. YouTube is a phenomena of our time: a free place to publish your video with more than 5 Trillion videos uploaded. httpv://www.youtube.com/watch?v=lnsZLhI4zb4
Some people like clips from movies or TV shows which are illegal to copy but they do by the billions. YouTube has been sued under the Digital Millennium Copyright Act DMCA and it generally responds by taking down the offending video. What is allowable under law is “fair use” which means short clips used to free speech commentary or parody. Companies like Warner who have less and less content that people want to buy are reacting with lawsuits when they should be focusing on creating something. It’s the death of a dinosaur. The Electronic Frontier Foundation EFF advocates on behalf of you, the YouTuber.
YouTube’s January Fair Use Massacre
Commentary by Fred von Lohmann
This is what it’s come to. Teenagers singing “Winter Wonderland” being censored off YouTube. Fair use has always been at risk on YouTube, thanks to abusive DMCA takedown notices sent by copyright owners (sometimes carelessly, sometimes not). But in the past several weeks, two things have made things much worse for those who want to sing a song, post an a capella tribute, or set machinima to music.
First, it appears that more and more copyright owners are using YouTube’s automated copyright filtering system (known as the Content ID system), which tests all videos looking for a “match” with “fingerprints” provided by copyright owners.
Second, thanks to a recent spat between YouTube and Warner Music Group, YouTube’s Content ID tool is now being used to censor lots and lots of videos (previously, Warner just silently shared in the advertising revenue for the videos that included a “match” to its music).
EFF, along with many other public interest groups, have repeatedly expressed our concerns to both copyright owners and YouTube about the dangers of automated filtering systems like the Content ID system. These systems are still primitive and unable to distinguish a tranformative remix from copyright infringement. So unless they leave lots of breathing room for remixed content, these filters end up sideswiping lots of fair uses.
And that’s exactly what has happened these past few weeks. And while today it’s Warner Music, as more copyright owners start using the Content ID tool, it’ll only get worse. Soon it may be off limits to remix anything with snippets of our shared mass media culture — music, TV, movies, jingles, commercials. That would be a sad irony — copyright being used to stifle an exciting new wellspring of creativity, rather than encourage it.
It’s clear from the Warner Music experience that YouTube’s Content ID tool fails to separate the infringements from the arguable fair uses. And while YouTube offers users the option to dispute a removal (if it’s an automated Content ID removal) or send a formal DMCA counter-notice (if it’s an official DMCA takedown), many YouTube users, lacking legal help, are afraid to wave a red flag in front of Warner Music’s lawyers. That’s a toxic combination for amateur video creators on YouTube.
So what can we do?
First, YouTube should fix the Content ID system. Now. The system should not remove videos unless there is a match between the video and audio tracks of a submitted fingerprint. When we made this suggestion in October 2007, YouTube assured us that they were working on improving the tool. Well, it’s been more than a year. If YouTube is serious about protecting its users, the time has come to implement this fix. (Some will point out that this implies that record labels and music publishers can never use the Content ID tool to remove videos solely based on what’s in the audio track. That’s right. I think that adding a soundtrack to your home skateboarding movie is a fair use. If copyright owners feel differently, they can send a formal DMCA takedown notice, and with any luck, we’ll see each other in court.)
Second, YouTubers, EFF wants to help. If Warner Music Group took down your video, ask yourself if your video is (1) noncommercial (i.e., no commercial advertisements or YouTube Partner videos) and (2) includes substantial original material contributed by you (i.e., no verbatim copies of Warner music videos). If so, and you’d like to counternotice but are afraid of getting sued, we’d like to hear from you. We can’t promise to take every case, but neither will we stand by and watch semi-automated takedowns trample fair use.
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