Fair(ly) Use(less): Why YouTube’s Fair Use Policies Are Harming Creativity

Is YouTube fair use a fairytale?

Seven years ago, I decided to try to make music reviews on YouTube, using a silly gimmick where I’d play piano in silhouette. And it went great! …for the first couple weeks. A month into this project, my fourth video got deleted; apparently Warner Music Group didn’t like me using footage of Jason Derulo. I tried disputing it; I was ignored. That video remains unviewable on YouTube, but I pushed on regardless. Seven years later, I’m still doing it:

 

 

I had no idea at the time that making these silly comedy reviews would become my full-time job. But if I had, I would have also guessed that the YouTube situation would have resolved itself. Not so. I wish clips of Jason Derulo weren’t still giving me as many issues as they did in 2009 (I wish I weren’t dealing with Derulo at all, honestly, but that’s a personal preference), but unfortunately use of copyrighted clips is still a deeply contentious issue, which you may be aware of if you’ve seen this:

 

 

This is popular YouTube comedian and movie critic Doug ‘The Nostalgia Critic’ Walker. He’s a colleague of mine who I’ve been lucky enough to collaborate with on occasion, and he came up with the rallying cry “Where’s the Fair Use” after the YouTube bots deleted yet another one of his videos. (If you see the hashtag “#WTFU” floating around, that’s what it means.) Walker, and various other big-name YouTube producers, are trying to push YouTube into giving more consideration to fair use; so far, nothing has changed.

I, along with Walk and many others, used to get around the bots by avoiding YouTube completely, but last year the hosting site we were using, blip.tv, closed its virtual doors. There are other alternatives to YouTube, but most of them are both unstable and unprofitable, and none of them receive anything near YouTube’s traffic.  In the current landscape, if you want to make new media content where it can actually be seen or monetized, then YouTube is your first, last and only option.

A note about “fair use”: This is a nebulous legal concept that allows creators to use a limited amount of copyrighted content if it is used in a transformative capacity — for example, if you’re a reviewer using clips of copyrighted music to make commentary videos.

The current YouTube system gives absolutely zero consideration to “fair use”; an automated algorithm just deletes your video if it detects any content and that’s the end of that.

Or if you’re lucky, sometimes YouTube will decide that you can keep displaying your content on their site, you just can’t earn any money from it. This is my situation. I have 52,000 subscribers, viewership of between 100,000 and 200,000 views per video, and for every hit I get, I make a grand total of $0.00. All the ad revenue from my videos goes to YouTube and the copyright holders; I’m entirely funded by my loyal viewers on Patreon. For those who don’t have that option and rely on YouTube ads for income, that means they’re constantly living under the threat of having their livelihoods torn out from under them.

It’s also worth noting that this system is rife with abuse, not just from big media companies but also just from trolls exploiting the system. Just in the last month, Walker had a “Phantom of the Opera” parody taken down despite it containing 100 percent original content. It was reinstated after roughly a week, but even this level of disruption is enough to cause problems for creators who promise their viewers a regular schedule.

Me, personally, I deal with the constant threat of deletion the same way I did in 2009; I use a site with less traffic as a backup. In ’09 it was DailyMotion, today it’s Vimeo; I get a tiny fraction of the views there but at least my viewers can watch them somewhere.

It’s also impossible to predict what’s going to get me in trouble and what isn’t. Most of my videos I can upload just fine, even if I don’t make money off of it. But one of my recent videos, a look back at ‘80s one-hit wonder Toni Basil of “Mickey” fame, got insta-blocked; for some reason, whoever owns the rights to the “Mickey” video just does not want it to be viewable anywhere. It’s not even on Toni Basil’s official channel that she runs (although the song without the video is readily available otherwise).

 

 

Recently, Vimeo tagged my videos for copyright infringement; fortunately, I was able to dispute it and had it overturned with an hour. This is in marked contrast to YouTube, which is infamously unresponsive to its users. It’s important to note that Vimeo responded to me because I’m their customer (an active Vimeo account costs money). YouTube lets me use their service for free; in fact, for this reason they’re arguably the least culpable for the situation.  YouTube is still basically a start-up; it has yet to make a profit.  It’s not a mystery why YouTube sides with them over its users; Warner Music has lawyers and I have a cheap video camera I got as a Christmas present.  If it doesn’t want to be crushed under the big media companies’ giant corporate thumb, it has to acquiesce to their demands.

If anything, this battle has very little to do with the law and everything to do with leverage: The big media companies use their might to push YouTube into doing what it wants and now some video producers are trying to use whatever clout they have to push it back the other direction.

To be clear, I know the world doesn’t owe me a well-paying career out of making silly internet videos. I know I operate in a grey area, and I know if and when the courts start going through the murky waters of fair use law, they may very well be against me. I’ve heard it argued that WTFU’s definition of fair use is over-expansive and self-serving, and it’s a decent point: Media creators have every right to look out for their own interests and fight piracy, after all, and that includes smaller independent studios just as much as the big guys. Fair use isn’t a right; it’s just a defense. But currently we aren’t even allowed a defense. We just get deleted and that’s that.

That said, there are some steps in the right direction; YouTube announced in November that it was starting a legal fund on behalf of its users. However, it seems likely to be used for only a tiny handful of users, and there has been no other information about the fund since the announcement. I don’t expect it to have much impact on me or my colleagues.

Furthermore, it’s not going to affect anything when copyright holders can issue wave after wave of takedown notices, in bad faith, without consequence. There is currently no punishment for abusing the system like this, and until there is, the situation isn’t going to change. And it’s not going to work in copyright holders’ favor either: Whatever model of consumption they expect the Internet to conform to… it clearly isn’t working.

And it doesn’t fit at all with how people consume content today. The media landscape is now a culture of remixes and mashups. Some of the most popular YouTube channels (such as CinemaSins, Honest Trailers or any numbers of cover artists and video game channels) rely on other people’s original content. “Legitimate” websites like Sports Illustrated and Vox Media embed blatantly copyright-infringing YouTube clips of FIFA or John Oliver right on their websites. These are sites that produce their own copyrighted content, mind you, and they participate in the new YouTube-based culture just as much as me, a nobody with a webcam. (And I’m at least transforming other people’s content into something original-ish.)

I don’t know what the solution to this is. YouTube wants to be a legitimate service, and becoming an unmoderated hub for piracy would destroy that goal, even without the specter of lawsuits. I just know that the current system isn’t working. It’s too prone to abuse; an automated algorithm can’t operate in good faith. I do believe that eventually everything will stabilize into a paradigm acceptable to all, but the current struggle is nowhere near its endgame.

25 Responses

  1. ONE+ONE

    Desperate times call for desperate measures: Stop uploading on freakin YouTube!!!When most of their creators will be gone on other platforms, they will be the ones beggin you to come back because THEY NEED YOU! But right now you act like YOU NEED THEM! Oh, and until then: improvise, find solutions! 😉

    Reply
    • Goblin Scribe

      The average content creator literally does need them. You don’t get views if you go somewhere else.

      Reply
      • Seriously - Grow Up - Man Up - Shut Up

        Boo Hoo. So yer mad you can’t rip off other people to make your own money [facepalm].

        “There are other alternatives to YouTube, but most of them are both unstable and unprofitable, and none of them receive anything near YouTube’s traffic. “

        Reply
    • Noah
      Noah

      I see where you’re coming from with your comment but YouTube has such market dominance that it isn’t plausible and the same issue would exist as soon as there was any kind of monetization and a way to claim that revenue as a copyright holder.
      Todd even pointed out his use of Vimeo in the article and while Vimeo was far more responsive than YouTube, Vimeo will never drive revenue or the amount of views that YouTube can.

      Reply
  2. Versus

    “If anything, this battle has very little to do with the law and everything to do with leverage: The big media companies use their might to push YouTube into doing what it wants”

    Are you kidding? Media “companies” large and small, as well as rights-holders, large and small – including musicians – have their work pirated incessantly on YouTube. How can you say YouTube being “leveraged” if they allow this to continue? If anything, YouTube has a bias towards piracy and illicit intellectual property “sharing”…a.k.a. theft.

    Reply
    • Nancy J.

      exactly…this entitled whiner is trying to get recognition by making fun of original songwriters.

      Reply
    • Katie

      Doesn’t matter anymore, even people with original content are getting even their monitization and videos taken down by random companies nobody has even heard of. take the “wizard” company for example during the “damn Daniel” meme

      Reply
  3. Anonymous

    The only problem with YouTube’s algorithms is that they’re unavailable to indie artists.

    And no; contrary to common belief, you can not use Audiam, Tunecore or CDBaby to monetize illegal UGC content on YouTube.

    Reply
  4. D'Michael

    Here’s a bright idea. If it’s not your content, then ask permission. If I posted a video of myself dancing or whatever and it went viral, and a “YouTuber” was making money off that video, where my content was in, I’d ask them to take down that video or give me some of that money. Every video/song has an asset that has metadata (ownership). You can have multiple assets on a single video. So now, that piece of pie gets even smaller.

    Reply
    • A Dose of Buckley

      This comment shows a massive lack of understanding of fair use. What you’re talking about is infringement. If you post a video of yourself dancing, and it goes viral, and I repost it on my YouTube channel and slap ads on it, that’s illegal. If you post a video of yourself dancing, it goes viral, and I decide to make a video commenting on this new viral sensation, and in that video use a short clip of your dancing to show what I’m talking about, that’s fair use. I legally don’t require your permission to do that, nor should I need to get it, nor should you be allowed to make money off it or sue me for copyright infringement. What if I want to make fun of it? You’re likely not going to give me permission then. No one would give permission for a bad review or negative critique, and freedom of speech and freedom of the press makes sure you don’t need that permission.

      Reply
      • Silly Rabbit

        As the name implies, I suspect this is a silly question. But, it also seems like an obvious one that I haven’t seen answered on the topic of fair use.

        I believe traditional broadcast mediums like radio and TV have a fairly simple rule that allows limited uses of copyrighted material. My understanding is that there is a window of time (e.g. 20 seconds) that a broadcaster can stay within to avoid triggering payment for the copyrighted work. Could be an excerpt from a movie or a portion of a song. That would seem to support the day to day needs of both critics and satirists.

        I also believe broadcasters have the option of utilizing “compulsory” licenses that would prevent a copyright owner from denying the use of their work. That would seem to address the concerns that have been raised about “no one is going to authorize a bad review”.

        So.. my question is if these limitations are still considered appropriate and effective for traditional broadcast mediums like TV and radio, why aren’t they being applied to use cases that rely on the Internet as a broadcast medium? What are the meaningful differences?? Higher volumes CAN’T be the ONLY justification, can it?

        Reply
  5. Nancy J.

    maybe if you write original music you’d be contributing something really original and this won’t happen …..how does your patronizing criticism of original artists help the artists in any way ?

    Reply
  6. Paul Resnikoff
    Paul Resnikoff

    The EFF has always said that the Lenz v. Universal case (featuring the dancing baby to Prince and The Revolution’s “Let’s Go Crazy”) was an ‘obvious case’ of fair use. Why is that? It seems like the baby was dancing to that song, and that song was a critical part of the video itself. It wouldn’t have worked as well with a song nobody knew, and it wasn’t a passing 5 seconds, it was far more substantial.

    Reply
    • Copyright Esq.

      Largely because the use of the song in what was an entirely unrelated video was non-commerical (i.e. Ms. Lenz wasn’t making any money off of it), transformative (i.e. they made a new, different video, that happened to incorporate the song – which wasn’t a mechanical reproduction of the recording, or an unauthorized display of the actual Prince music video for “Let’s Go Crazy”), it only used 29 seconds of an almost-4-minute-long song, and as such, it did not impact the commercial market for the authorized recording (or video).

      Fair Use weighs 4 factors:

      1) the purpose and character of the use (i.e. is it simply a commercial appropriation? Or, is it social commentary/news? Critique? Satire?)

      2) the nature of the copyrighted work (i.e. a shaky, hand-held home video, with bad audio of a sound recording playing in the background, isn’t of the same “nature” of the original copyrighted work, which was a commercial sound recording)

      3) the amount and substantiality of the portion taken (i.e. did you use the whole thing? Enough to satisfy factor #1? or factor #4?), and

      4) the effect of the use upon the potential market (i.e. does this new use diminish the market for the original?).

      You don’t have to win on all factors – or even a majority of them. A very strong fining for a valid use under factor 1 could arguably trump findings of some level of invalid use per factors 2, 3 and 4.

      Lenz pretty clearly won on all 4.

      Reply
      • Anonymous

        “Lenz pretty clearly won on all 4”

        No, that was never determined in court, that’s just your opinion. Please see my comment above if you don’t know the case.

        Reply
        • Copyright Esq.

          I’m pretty comfortable that I know and understand the case.

          Anonymous
          Please see my comment above if you don’t know the case.”

          Uh, which specific comment would that be?

          Anonymous
          No, that was never determined in court, that’s just your opinion.

          Um, do you understand the distinction between someone observing “Lenz pretty clearly won on all 4” and stating something like: “It was determined in court, that Lenz was found to satisfy each of the 4 Fair Use factors?”

          Reply
      • Faza (TCM)

        To the best of my knowledge, this was never tested in court, because the system (DMCA process) worked: Universal filed a notice, the video was taken down, Lenz filed a counter-notice, the video was reinstated, Universal did not contest the matter further.

        Let’s not forget that it was Lenz who sued Universal and the fairness of use was not at dispute. This issue remains untested, as Anonymous points out.

        Frankly, I’m unsure how the Lenz video qualifies as fair use, given that it hardly qualifies as a “use”. The fact that the song in question was well known may have mattered after the fact, but Lenz’s baby could have been dancing to any song and I expect that may have been filmed anyway.

        Fair use factor 1 has been mostly gutted of meaning by recent court rulings, but the full text of 17 USC § 107 provides guidelines as to what manner of purposes qualify as fair and it’s difficult to see how any of these would apply to Lenz. I would posit that if a rational legislator had intended any manner of use to potentially qualify as fair, they would have written the law thusly. As written, it very much suggests that potentially fair uses should be at least akin to those enumerated.

        A narrower reading (which, to my mind at least, would be more consistent with the entirety of the law as written than Sony, say) would mean that Lenz’s fair use defense falls at the first hurdle.

        This is hardly a disaster for Lenz, by the way, because an identical result – the video being found non-infringing – could be arrived at by application of the doctrine of de minimis non curat lex. In short, the matter is so insignificant (even UMG seems to think so, given that they have not filed suit), that it does not create an actionable claim.

        Given that Lenz’s use was both incidental (“Let’s Get Crazy” just happened to be a song her baby likes) and that it is unlikely to affect UMG’s commercial interests, a de minimis finding would both be logical and avoid an expansion of fair use beyond the bounds set out by Congress.

        Reply
    • Anonymous

      “The EFF has always said that the Lenz v. Universal case (featuring the dancing baby to Prince and The Revolution’s “Let’s Go Crazy”) was an ‘obvious case’ of fair use. Why is that?

      Because they’re pro-piracy extremists.

      Lenz v. Universal was an obvious case of infringement — and no court never said otherwise.

      What the courts did decide was that Universal screwed up when they didn’t consider fair use before taking it down.

      That’s what it’s all about. And that in itself is obviously a huge problem:

      How are content owners supposed to consider this thousands of times every day?

      This, in turn, is the reason why the DMCA needs to be fundamentally changed, so that the host (in this case YouTube) — not the content owner — will be directly responsible for illegal uploads.

      Reply
      • Copyright Esq.

        An interesting distortion of the rights vs. obligations and postions of the parties here:

        Anonymous
        How are content owners supposed to consider [potential Fair Use] thousands of times every day?”

        followed by:

        Anonymous
        This, in turn, is the reason why the DMCA needs to be fundamentally changed, so that the host (in this case YouTube) — not the content owner — will be directly responsible for illegal uploads.”

        So, Fair Use is complex, or difficult, or time-consuming enough that the folks who actually OWN the material – the very party that has a direct, vested interst in it – just can’t be asked to consider the issue – BUT, the outlets, the parties that have absolutely no interst in any particular work, can and should be able to, and indeed be responsible for, considering (and deciding) the issue?

        I wish you the best of luck in convincing Congress and the Courts that services are in the better postion to be “Fair Use Police.”

        Reply
        • Anonymous

          I agree, however hard it may be, the DCMA law needs to be updated, as the sudden boom in technology has affected it, and created ways to abuse it. It could only be a matter of time before a company takes this too far. I’m sorry if i haven’t read your paragraph right, but creators can’t put their time into deciding whether or not their product is fair use. Because it usually is. Companies are silencing creativity and bad reviews of their products, by deleting videos which do this. It’s not that they can’t be asked, trust me they are doing a lot to try and keep their videos up, it’s more that they just can’t. YouTube needs to update their laws, just as the DMCA needs to be updated, so it can work alongside the new advantages and disadvantages of technology. Of course, unless something really outrageous occurs, I don’t see this happening in the near future anyway….

          Reply
        • Katie

          I agree, however hard it may be, the DCMA law needs to be updated, as the sudden boom in technology has affected it, and created ways to abuse it. It could only be a matter of time before a company takes this too far. I’m sorry if i haven’t read your paragraph right, but creators can’t put their time into deciding whether or not their product is fair use. Because it usually is. Companies are silencing creativity and bad reviews of their products, by deleting videos which do this. It’s not that they can’t be asked, trust me they are doing a lot to try and keep their videos up, it’s more that they just can’t. YouTube needs to update their laws, just as the DMCA needs to be updated, so it can work alongside the new advantages and disadvantages of technology. Of course, unless something really outrageous occurs, I don’t see this happening in the near future anyway….

          Reply

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