YouTube is continuing to allow clear violations of the fair use legal rights of YouTube content partners. As who is just that under Zennie62, I have made videos with specific clips in them that show an action that’s used for news commentary.
This is standard practice in the news industry, and is covered by US law. Even Youtube has a page that specifically identifies what “Fair Use Legal Rights” are:
What is fair use?
In many countries, certain uses of copyright-protected works do not infringe the copyright owner’s rights. For example, in the United States, copyright rights are limited by the doctrine of “fair use,” under which certain uses of copyrighted material for criticism, commentary, news reporting, teaching, scholarship, or research may be considered fair. U.S. judges determine whether a fair use defense is valid according to four factors, which we’ve listed below for educational purposes. In some other countries, there is a similar concept called “fair dealing” that may be applied differently.
Remember, it is your responsibility to understand the relevant law and whether it protects the use you have in mind. If you plan to use copyrighted material you didn’t create, we’d strongly advise you to take legal advice first. YouTube cannot provide legal advice or make legal determinations.
The four factors of fair use:
1. The purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposesCourts typically focus on whether the use is “transformative.” That is, whether it adds new expression or meaning to the original, or whether it merely copies from the original.
2. The nature of the copyrighted workUsing material from primarily factual works is more likely to be fair than using purely fictional works.
3. The amount and substantiality of the portion used in relation to the copyrighted work as a wholeBorrowing small bits of material from an original work is more likely to be considered fair use than borrowing large portions. However, even a small taking may weigh against fair use in some situations if it constitutes the “heart” of the work.
4. The effect of the use upon the potential market for, or value of, the copyrighted workUses that harm the copyright owner’s ability to profit from his or her original work are less likely to be fair uses. Courts have sometimes made an exception under this factor in cases involving parodies.
With that, YouTube says that it’s not a court, but then acts just like one, but one that does not take into account fair use legal rights. So, if you’re a video-blogger, and a YouTube Partner, and you have a lot of videos up, and want to analyze the 95-yard touchdown pass that Johnny Manziel threw against Texas A&M, you get the part you need, slow down the video and put your voice over to it, but then some XODigital comes along and makes a claim against it. Meaning they’re making money off your analysis.
This is my video:
Even if you challenge the claim, YouTube will not honor the challenge.
That’s not right, and yet it’s a growing problem.
YouTube And Fair Use Myths
There are several myths about fair use that it seems YouTube staffers don’t pay attention to. According to Social Times, a YouTube-sponsored video talk on fair use by Anthony Falzone, executive director of the Fair Use Project and associate director Julie Ahrens answer questions about fair use and YouTube. Anthony Falzone says, “If you think about copyright as a series of restrictions, fair use is a set of exceptions. It protects your right to use copyrighted material in certain ways and it’s not a trivial little technicality—it’s a fundamental part of the copyright bargain. We don’t give copyright owners unlimited control over their content—we preserve a whole variety of uses and things that people get to do with copyrighted content without permission. And fair use is really, above all else, a set of factors and considerations that help us figure out which things we carve out of the copyright monopoly, and which things we let people do without permission.”
Social Times’ Megan O’Neill points out that Julie Ahrens debunks some common myths about fair use. Here’s what she said, and from that article:
Myth #1: If you are making money off a video using copyrighted content, this is not fair use.
Reality: Ahrens says that whether or not something is used for commercial purposes is not a factor that goes into deciding whether it is fair use or not. She says that there are many commercial enterprises that actually rely on fair use. So if you are creating commercial work, for profit, you can use copyrighted content as long as it falls under fair use.
Myth #2: As long as you give credit to the original creator then you won’t be liable for copyright infringement.
Reality: You are not required by law to give credit when using another person’s work under fair use and, by the same token, crediting someone will not protect you from copyright infringement. That being said, it is often advised to give credit when using someone else’s content. It just may help you avoid a lawsuit and sometimes all that the original creator wants is credit for his or her work.
Myth #3: If I use less than thirty seconds of copyright material, I’m in the clear!
Reality: There are no precise numbers dictated under the fair use doctrine when it comes to how much of a copyrighted video or song you can use. Simply put, the amount that you use just needs to be reasonably related to your purpose.”
In total, YouTube violates the fair use legal rights of its smaller content creator partners, even as it shows a face as if it does not. Translation: if you’re well-monied, or one of their favored creators, you don’t have this problem with them much of the time with, say video games.
Patrick McKay, a Colorado-licensed attorney and the editor of Fair Use Tube, has many examples where YouTube violates the fair use legal rights of its smaller content creator partners at his blog site. His most recent headline is shocking: YouTube Refuses to Honor DMCA Counter-Notices.
He writes:
For months I have been trying to discover why many users have been receiving responses to DMCA counter-notices stating, “It appears that you do not have the necessary rights to post the content on YouTube. Therefore, we regretfully cannot honor this counter-notification.” I even got in touch with a YouTube product manager who promised to look into the situation for me, though he has not yet provided me with any answers. While I initially suspected some kind of technical glitch, it now appears that something far more nefarious is going on….I have recently discovered evidence that YouTube has contracts with certain copyright holders (including Universal Music Group – UMG) to refuse to honor DMCA counter-notices sent in response to their copyright takedowns—essentially giving them the power to take down any video they wish, even if it does not infringe their copyright in any way.
In other words, YouTube is making deals allowing “big” partners to use YouTube as a tool to violate the law, which means YouTube is violating fair use law under this system.
What is puzzling is why this is allowed to go on. Where is the Electronic Frontier Foundation? The EFF was supposedly charged with defending the little creator in these matters. Do you have to be a Larry Lessig or a big donor to gain their assistance now? I’ve contacted the EFF and received zero feedback.
Stay tuned.