YouTube Content ID Arguments Ignore Fair Use Law

I just read the blog post of a man named Simon Linder. Mr. Linder was sharing his take on the YouTube Content ID Controversy.

The YouTube Content ID Controversy is such that videos which contain a small part of the content of another video are being hijacked by at times unscrupulous YouTube users who seek a quick buck by making fradulent Content ID Claims. This happens when a video is popular and a version of it is made for news commentary, thus causing the video to fall within Fair Use Copyright Law. That places a restriction on a copyright, recognizing instances where a part of a video may be used in the process of reporting the news.

The problem is, the persons attacked by the unscrupulous YouTube users (who claim ownership of a part of a video, like three seconds of sound) don’t know Fair Use Law, and sometimes YouTube staffers don’t either, unless where the law applies is brought to their attention by the persons attacked. I do this.

For example, I have been in several situations where the unscrupulous YouTube user is the fourth or fifth organization to try and claim part of a video. Take my “Carrie Movie” video here, where I report on Thinkmodo’s incredible work in making a real cafe look like it was the scene of a telekinetic woman losing her temper in New York City, and all to promote the remake of Brian DePalma’s classic:

univision, FOX, Sony Pictures , Quantum Skynet Solutions, and Red Televisiva Megavisión S.A. have all tried to make claims against the same 18 to 22 second part, only to release their claims when I showed that it was within Fair Use Law.

Now here comes Gala TV trying to do the same thing. What is Gala TV? They’re a TV network in Mexico, and with no real, defensible claims to any part of the video you see. I know because I researched this. The claim is in review, and I expect to win, again.

You have to defend yourself against this. Otherwise, the persons attacked (you) lose their (your) chance to make ad revenue from their video, or at the worst, lose their entire YouTube channel.

Simon Linder wrote:

..Furthermore, placement of automated claims does not put the user in bad standing; instead it prevents the user from earning money from advertising that would run on the uploaded video. The difference is the balancing of factors in a fair use defense. One of the factors in the defense is the nature of the content being uploaded. While a commercial product can still be eligible for this defense, it is accorded less protection than if the product is educational. A review of a video game that uses excerpts of the product and does not include YouTube advertising has a better chance of succeeding in a fair use defense than a full playthrough of a video game with incidental commentary with advertising revenue directed at the user uploading the playthrough instead of the owner of the video game copyright.

His take reveals the lack of experience that comes with not actually owning and running a YouTube channel. I wrote this comment below for his blog post, but figured it was better for my blog…

With all due respect, your take is intellectually sloppy. First, your post ignores a complete read of Fair Use Law and the four-factors test to determine if a video is, indeed, protected from a Content ID claim, let alone a DMCA Takedown. I use the four-factors test to govern the creation of my news commentary videos. This practices has resulted in the successful defense of DMCA and Content ID challenges 100 percent of the time – yes, you did read that correctly. The point is that a focus on Fair Use Law will reveal that, in a large number of cases, the rights of the YouTuber have been violated, and the total damage amount is well into the millions.

So what is the “four-factors test”?

It goes like this:

1 The Transformative Factor: The Purpose and Character of Your Use – or does is the video really a brand new take on the subject that, say, reports the news about it? A video entirely uploaded from another YouTube Channel would not meet this test and should be taken down.

2 The Nature of the Copyrighted Work: Is it already published and is it a non-fiction work? If so, it stands a better chance of passing the test. Take a three-second video snippet of a concert or a speech that’s then used in a news video about the person holding the concert or giving the speech.

3 The Amount and Substantiality of the Portion Taken: If you used 30 seconds of a 3 minute video, you’re obviously not using the whole video and should pass this test.

4 The Effect of the Use Upon the Potential Market: If the video you make comes from one that’s already generated millions of views, then there’s no argument that your video negatively impacts the market for the original. It’s already gained its views.

This is the foundation of the determination if a YouTube video is protected by Fair Use Law. Many lawyers and observers don’t really understand this at all.

But as a YouTuber, you should know it cold and use it as the basis from which to make your videos. Knowing this can and will save you from fraudulent YouTube Content ID attacks.

Stay tuned.

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