“Where’s The Fair Use?”: YouTube’s Murky Relationship with Copyright Law

Copyright and Youtube: A Long History

YouTube’s former Director of User Experience, Margaret Gould Stewart, delivered a TED talk in 2010 explaining the idea of progressive rights management and how YouTube was instrumental in this concept. Her talk, aimed at participants in the digital rights ecosystem, highlighted the deep care YouTube has for copyright owners and their choices when confronted with copies, mashups, remixes, etc. According to Stewart, YouTube’s ContentID system addresses the “complicated and messy” nature of uploaded videos and the web of rights associated with one single video:

It’s not uncommon for a single video to have multiple rights owners. There’s musical labels. There’s multiple music publishers. And each of these can vary by country. There’s lots of cases where we have more than one work mashed together. So we have to manage many claims to the same video.

YouTube’s ContentID system addresses the rights of copyright owners by giving them the option to choose how other users employ their copyrighted material. Technically, ContentID consists of a database including both audio and video files, which copyright owners submit to YouTube. The system then compares the files with those uploaded to YouTube. If a match is found, the system automatically submits a ContentID claim to the uploader (as long as they meet specific qualifications).

This system is lauded as being truly remarkable. According to Stewart, the sheer volume of data that ContentID assesses is comparable to “36,000 people staring at 36,000 monitors each and every day, without so much as a coffee break.” The effect of a ContentID claim varies from allowing the uploaded, possibly infringing, video to live on YouTube while permitting advertising revenue to be directed to the copyright owner, to an outright takedown of the possibly infringing video.

For instance, when singer-songwriter, Chris Brown released the official video for his single “Forever,” it had its day(s) on the popular music charts, but eventually experienced an inevitable decrease in sales and relevance. Fast forward to 2009 when a couple uploaded a video of their lively wedding procession featuring members of their wedding party dancing brilliant choreography to “Forever.” It was pretty remarkable. In fact, according to Stewart, the video garnered 40 million views. Sony, the owner of the rights to “Forever,” made the choice to allow the video to remain on YouTube and instead of taking it down, redirected advertising revenue to themselves and included a link to iTunes to purchase the single. As a result, the song, 18 months old at this point, jumped back to number 4 on the iTunes charts. The happy couple? They returned from their honeymoon to the news that their video had gone viral, appeared on various talk shows, and used their popularity to raise money ($26,000) to end domestic violence. NBC also cashed in on the popularity of the video and parodied it for the season finale of “The Office.” And according to Stewart, this goes to show, “[YouTube] is truly an ecosystem of culture. Because it’s not just amateurs borrowing from big studios, but sometimes big studios borrowing back.”

Check out the two videos below:

To Stewart, progressive rights management is about empowering choice to create a culture of opportunity. It’s about copyright owners thinking twice before submitting takedown notices to reap the benefits of potential collaboration, which inevitably paves the way for transformative works to flourish. Recently, however, rights management on YouTube has become allegedly more conservative, souring the experience of many users, so much so that a popular hashtag #WTFU was created to describe the frustration of many YouTube users.

Where’s the Fair Use?

No, #WTFU does not stand for “what the [bleep] YouTube?” (although, that would make sense in this context). It stands for, “Where’s the fair use?” A popular inquiry amongst YouTube uploaders — users somewhat like the aforementioned happy couple who are responsible for YouTube’s popularity, yet simultaneously argue they are the ones increasingly left behind as a result of ContentID technology. These are users whose videos have been flagged or taken down as a result of conservative rights management from copyright owners — users whose videos could otherwise be legal if defended in an actual court of law. Yet online, these users have no proper recourse to defend against takedown notices and much of this has to do with the particularly one-sided ContentID system.

Concerns over ContentID

Under YouTube’s ContentID system, the recourse for users falling under the fair use umbrella is less than ideal. First, the effect of a ContentID claim is left to the discretion of the copyright owner — only the copyright owner reviews disputed claims regardless if the claim is frivolous or abusive. The number of takedown notices a copyright owner can submit are limitless, but the number of disputes a user/uploader can submit are limited to 3 every 30 days. If a dispute is filed, the power still rests in the copyright owner’s control: they can choose to respond to the dispute within 30 days, they can file a court order requesting the video be permanently removed, they can file a copyright strike on YouTube resulting in the automatic take down of the video, or they can choose to cancel the appeal. As a result, the user/uploader has no real power in disputing a ContentID claim prior to taking down the video or halting advertising revenue: which is ultimately the most problematic aspect of the ContentID technology. These claims prevent certain material from being available on YouTube while the content is under investigation. In the case of a majority of YouTube users, a video not being available is an automatic loss in revenue. Essentially, there is no effective way for a user/uploader to defend themselves against a takedown notice by arguing fair use right away.

Fair Use is Free Speech?

Fair Use, in theory, is how copyright law actually does what it is intended to do: “to promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” Fair Use “permits [and requires] courts to avoid rigid application of the copyright statute when, on occasion, it would stifle the very creativity which [copyright] law is designed to foster.” Fair Use is free speech. Whether someone is quoting another in an article (as I’ve done here), inserting clips from CNN into their own video news report (as YouTube users have done), or using a song sample in a musical parody, free speech often depends on incorporating and referencing other people’s creations in order to create a new, transformative work.

But ContentID does not recognize fair use. To ContentID, a copy is a copy, regardless of whether it falls into a very legal category of use. Copyright owners are aware of this flaw and to some uploader/users it seems that copyright owners may be using this technology to their advantage, oftentimes in a manner that borders abuse. For instance, if a copyright owner disagrees with a video criticizing their work, they have the ability to control whether the criticism is available by submitting a ContentID claim. For other users, copyright owners can just completely miss the mark without taking fair use into consideration prior to submitting a ContentID claim.

A Dancing Baby Starts Reform

This controversial process set the stage for the landmark lawsuit, Lenz v. Universal Music Group, also known as “The Dancing Baby” case.

On February 7, 2007, Stephanie Lenz uploaded a 29 second video of her two children dancing to Prince’s “Let’s go Crazy.” She titled the video “Let’s Go Crazy #1.” About four seconds into the video, she asks her thirteen-month old son “what do you think of the music?” after which he bops ups and down while holding a plush toy.

At the time Lenz posted the video, Universal was the publishing administrator responsible for enforcing Prince’s copyrights. To enforce them with respect to YouTube, Universal’s head of business affairs assigned an assistant in the legal department to monitor YouTube on a daily basis. He searched YouTube for Prince’s songs and reviewed the video postings returned by his online search query. When reviewing such videos, he evaluated whether they “embodied a Prince composition” by making “significant use of … the composition, specifically if the song was recognizable, was in a significant portion of the video or was the focus of the video.”According to Universal, “[t]he general guidelines are that [we] review the video to ensure that the composition was the focus and if it was we then notify YouTube that the video should be removed.” Lenz’s team claimed the legal assistant contrasted videos that met these criteria against those “that may have had a second or less of a Prince song, literally a one line, half line of Prince song” or “were shot in incredibly noisy environments, such as bars, where there could be a Prince song playing deep in the background . . . to the point where if there was any Prince composition embodied . . . in those videos that it was distorted beyond reasonable recognition.”

The Court noted that none of the video evaluation guidelines set down by Universal included consideration of whether Lenz’s use of the song might be covered under the fair use doctrine; and fair use is one of the best defenses against a claim of copyright infringement, because the principles behind its inception are designed to foster creativity. It encourages content creation even if the content is derived from the work of another, as long as the work meets the four fair use factors used by courts in these types of cases; and if you’re the collage artist in the previous example your defense would likely be based on fair use.

When Universal’s legal assistant reviewed Lenz’s video, he recognized “Let’s Go Crazy” immediately. He noted that it played loudly in the background throughout the entire video. Based on these details, the video’s title, and because Lenz can be heard asking if her son liked the song, he concluded that Prince’s song “was very much the focus of the video.” As a result, Universal decided the video should be included in a takedown notification sent to YouTube that listed more than two hundred YouTube videos Universal believed to be making unauthorized use of the song. In response, YouTube removed the video and sent Lenz an email on June 5, 2007, notifying her of the removal. Both Lenz and Universal engaged in a legal tête-à-tête resulting in the court’s decision that any copyright infringement notification must be preceded by a fair use consideration. The court did not offer much guidance as to how that consideration might be made, nor to what extent fair use should be considered, but it did provide the standard that alleged infringers should be offered an initial benefit of doubt from copyright owners.

A Second B[y]te of the Apple

The Court’s ruling left some scratching their heads. How should content owners conduct a fair use analysis that seems, for the most part, to be a subjective analysis? In March 2016, the Ninth Circuit Court of Appeals addressed this inquiry when it heard arguments for a rehearing in this case. Lenz argued that the Court’s prior ruling allowed a content owner to effectively censor speech — especially speech by ordinary individuals — by permitting a subjective belief, even where unreasonably held, to act as a shield for frivolous take-down notices. In support of this argument, according to JDSupra:

Google, Tumblr, Twitter and the owner of Wordpress submitted an amicus brief, arguing that unfounded or abusive take-down notices impose a significant cost on service providers as well as on free speech, and that determining liability ‘solely on the subjective knowledge of the notice sender… would lead to the illogical result that the more unreasonable a copyright holder is, the more legal leeway it has to send unfounded notices.’

Additionally, two other entities, Public Knowledge and the Organization for Transformative Works — whose earlier brief had been cited by the Court for its reference to algorithms that can identify infringing content — also submitted an amicus brief, “notably setting forth numerous ways in which take-down notices purportedly have been abused, including the use of ‘overbroad’ matching algorithms.”

The Ninth Circuit was ultimately unpersuaded by the parties’ arguments to rehear its decision affirming the district court’s denial of summary judgment, and instead took the opportunity to issue an amended decision. This amended decision deletes almost two pages from the original decision most importantly the paragraphs that set forth the type of fair use consideration that the Court originally indicated might suffice.

The effect of this decision, at least for copyright owners in the Ninth Circuit, is that these purported owners do not have to conduct a subjective fair use analysis prior to submitting a takedown notice. As a result, the Ninth Circuit now simply has not defined the type of review that must be undertaken, prior to submitting a takedown request. Further, the court seems to leave the issue of whether allegedly infringing content is fair use to a jury in the lower trial courts. Essentially, this has the effect of loading even more costs on to individual users to defend themselves in court against copyright owners that have the ability to not only submit multiple, but also frivolous, take down requests. Of course video hosting sites like YouTube have the discretion to evaluate take down requests and apply a Fair Use analysis to flagged content to protect users against unwarranted requests, but given the volume of content and take down notices these video hosting sites receive, this seems highly unlikely.