YouTube takes step toward protecting creators from copyright claims

20 Nov 2015 | Author: | No comments yet »

Google Will Pay to Defend YouTubers Against Copyright Claims.

YouTube is stepping in to protect fair use by some of its creators, pledging financial and legal resources to help them combat unwarranted copyright claims and takedown notices. YouTube announced today that it’s going to cover the legal costs of copyright lawsuits facing a few videos that they believe are strong examples of fair use.Google will cover up to $1 million in legal costs for YouTube video creators who are sued for violating the Digital Millennium Copyright Act (DMCA) but are —in Google’s opinion—actually using that footage legally.After a series of skirmishes with established media and others the company said it was “offering legal support to a handful of videos that we believe represent clear fair uses which have been subject to DMCA [Digital Millennium Copyright Act] takedowns”.

The DMCA allows for “fair use” exemptions—criticism, research, teaching, news reporting, etc.—that lets creators use footage without permission from the copyright owner. In addition, YouTube will also provide access to title and description translations and connect creators with translators through a new YouTube-hosted marketplace. Von Lohmann admitted that Google was not going to shoulder the court costs of every user on its site – not even every user with a solid case – but he said the company did want to demystify the process by which users could wield the law as effectively as entertainment companies. “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,” he wrote. He said that they can’t defend every video that has a strong fair use defense, but “we’ll continue to resist legally unsupported DMCA takedowns as part of our normal processes.” The whole issue of “fair use” continues to be hotly debated, as copyright holders try to protect their works in the face of online piracy, while YouTube has become a destination for the creation of user-generated content such as videos that remix already copyrighted works.

The company has a playlist of videos about which it has received complaints that it says it will defend in court, including a debunking of a video true believers insist documents a UFO and another of an elected official asking a sixth-grader to date his grandson at a public hearing. Courts have over time defined “fair use” with a set of four factors, including whether the work is “transformative,” whether it is used for commentary or parody. In addition, thanks to technology improvements over the years, the process for getting videos pulled down by way of DMCA takedown requests has been automated. In order to be immune from being sued, companies like Google must have a system in place to receive notifications that their users are infringing, take down the allegedly infringing material, inform the user that their work has been taken down, and a process to terminate the accounts of “repeat infringers.” The way the law is worded has always benefitted the people making complaints over video producers.

Because so many tech companies both rely on user-generated content and are leery of having to deal with a potential flood of costly lawsuits should they not appear friendly to corporate rights-holders, abuse of the DMCA is rampant and often a tool for political reprisal. The fallout has affected everything from political ads to things like a video of a baby bopping along to a Prince song – the latter which actually made it to the U.S. The Electronic Frontier Foundation has a “hall of shame” immortalizing creative uses of the takedown process ranging from a restaurant that wants to corner the market on a particular dessert recipe (by filing a takedown notice on every recipe for derby pies) to the Church of Scientology.

Among them: a remix video that compares the way that women are portrayed in the “Twilight” series to the TV show “Buffy the Vampire Slayer.” They also cited a video from Mitt Romney’s 2012 campaign that initially was taken down because it featured President Barack Obama singing a portion of Al Green’s “Let’s Stay Together.” The four he listed include a clip from progressive news video bloggers the Young Turks, a Secular Talk’s video criticizing Mike Huckabee, “Buffy vs Edward: Twilight Remixed — [original version],” “No Offense,” uploaded by the National Organization for Marriage and “Political Payoffs And Middle Class Layoffs,” an ad created for Mitt Romney’s presidential campaign. With more than 1,000 subscribers, the UFO Theater channel has received three takedown notices from the owners of videos Dean found online and posted, The New York Times reported. Rebecca Mackinnon, of the New America Foundation, noted in a study published this month that “few companies disclose data about private third-party requests to remove or restrict content or to share user information – even when those requests come with a court order or subpoena, or are made in accordance with established legal processes such as a copyright ‘notice-and-takedown’ system”. Mackinnon’s group, Ranking Digital Rights, said tech companies were generally evasive and unconcerned about even the most fundamental rights of users online.

Right now, that number is four (including a video by Naral Pro-Choice Ohio, Jim Sterling, and U.F.O Theater) but they might extend that offer to others in the future. Von Lohmann said that Google hopes the batch of videos YouTube is willing to defend will chill the misuse of DMCAs. “We believe even the small number of videos we are able to protect will make a positive impact on the entire YouTube ecosystem,” he wrote. Fair use—the use of copyrighted material without permission or payment for certain socially valuable purposes like criticism or commentary—is not a copyright infringement and is therefore not subject to a DMCA takedown. There are 400 hours of video uploaded to YouTube per minute, and many would classify as fair use – meaning they use existing, copyrighted content like music or TV clips in new ways that provide value beyond the original.

The company already has a track record of being able to identify suitable videos, having garnered press coverage in a number of cases where it asked rights owners to reconsider their takedowns. A mother simply wanted to share a cute video with her family, but Universal believed it had the right to have the video pulled since the child was dancing to Prince’s music. We knew that we had some room to post that video legally, but most of what we’d heard about people being challenged like this was when, for example, Viacom challenges people who posted clips from like The Daily Show or The Colbert Report and they are instantly taken down.

And since the video was something that we were angry about but it wasn’t exactly within the scope of our mission statement, we figured once the video was challenged, it would be deleted and we would return to the job we were doing focusing on reproductive rights. Or, they don’t have the resources to take on that battle, since the counterclaim process includes consenting to jurisdiction in federal court in the case of a lawsuit.

Mann also said: The next thing after we heard that our video was being challenged was actually a response from YouTube saying that they’d reviewed it, they felt it was fair use of the source material, that we’d done everything right, and following that was the notification from them that they wanted to include our video in their project to demonstrate was fair use of video material looks like. They’re picking clear fair use cases—Naral Pro-Choice Ohio’s video is commenting on the actions of public officials, for example—and once the other party finds out that YouTube has made that determination, they’re unlikely to want to fight them in court. One of YouTube’s stated hopes is that, by putting the videos it’s agreed to defend in its Copyright Center, they could “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.” That understanding is sorely needed, but YouTube could also stand to explain their own processes better.

According to YouTube’s page, a DMCA claim results in a strike but “most copyright claims don’t result in a strike,” which is utterly confusing. What that appears to mean is that copyright holders can use the Content ID system to say they own something used in a video, but only a DMCA notice issues a strike. You have to click through to another page which then says, “You may want to learn more about fair use or the public domain before you choose to dispute for either of those reasons.” But the first page doesn’t make clear that fair use is a reason you can dispute a claim.

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