Fair Use Gets a Legal Defense Fund and a Highlight Reel

Written by Erik Stallman

As reported on Google’s policy blog and in the New York Times, YouTube today announced that it will provide legal indemnification for a handful of uploaded videos that are “best examples” of fair use, but nonetheless have been the subject of takedown notice under the Digital Millennium Copyright Act.  The videos selected will be showcased on YouTube’s page devoted to fair use.  Although only four videos have been selected thus far, this is a big deal.  It demonstrates the importance of fair use in different contexts and the genuine concern of DMCA takedown misuse. YouTube’s actions also hint that Internet intermediaries might actually be competing on the ability to facilitate and protect user generated content creation.

The four videos placed in the showcase illustrate different contexts in which fair use is essential to meaningful free expression.  One video critiques a video game trailer, one debunks a UFO sighting, another expresses profound disturbance with comments made by a public official in a public forum, and the final exhibit is commentary on a news story.  These examples are clear cases of fair use: instances of criticism, commentary, and news reporting.  Unfortunately, not all countries recognize a robust and flexible fair use exception and the compilation of fair-use-protected videos is available only in the United States.  Nonetheless, the initiative should remind other jurisdictions of the importance of clear copyright limitations and exceptions to free expression and meaningful public participation.

There is a long track record of DMCA misuse in the ever-extending political season.

At least some of these examples are also clear cases of DMCA misuse, where a tool to prevent copyright infringement is instead used to simply suppress unwanted speech.  Given the political calendar, the timing of YouTube’s announcement is highly appropriate.  As CDT detailed in a 2010 report, political campaigns have both instigated and been on the receiving end of DMCA misuse.  Like it or not (and I’ll go with “not”), the 2016 campaign season is in full swing and the takedowns and lawsuits are already rolling in.  CDT is not defending Mike Huckabee’s use of “Eye of the Tiger.”  Nor are we defending “Eye of the Tiger.”  But there is a long track record of DMCA misuse in the ever-extending political season.

There is an equally long track record of misguided DMCA takedown notices and other attempts of speech suppression resulting in the Streisand Effect, where a legal threat intended to remove expression from the public eye instead amplifies it.  In some cases, such as a public official threatening a newspaper for using his name without authorization, the legal threat itself becomes the story (ahem, Kirby Delauter).  YouTube’s fair use highlight reel may have a similar effect: drawing attention to protected free expression and potentially curbing some frivolous assertions of infringement.

The YouTube program also reminds us of something important about fair use: there are slam-dunks.

The YouTube program also reminds us of something important about fair use: there are slam-dunks.  Despite claims (usually by opponents of fair use) that the test for fair use is too multi-factored and fact-specific to be relied upon or evaluated in advance of issuing a takedown notice, there is growing certainty around fair use.  This is particularly significant in the wake of the Ninth Circuit’s Lenz decision requiring rightsholders to consider fair use before issuing a takedown notice.  It is very unlikely that the rightsholders who issued the takedown notices for YouTube’s four exemplars of fair use considered the exception before issuing notices.

A final encouraging note in the New York Times article concerns the statement that YouTube’s program “is aimed at strengthening loyalty with video creators” as YouTube competes with Facebook, Twitter, and traditional media companies seeking to encourage user generated content.  The Internet has its best moments when the line between content creator and content consumer erodes.  Fair use enables that erosion, creating opportunities for comment, criticism, and other transformative uses of works.  If Internet intermediaries are competing to make more of those opportunities possible, Internet users win.

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