Google Declares War on ‘DMCA Intimidation’ (Official Statement)

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The following declaration was posted late last week on Google’s Public Policy blog by Google Copyright Legal Director and former Electronic Frontier Foundation (EFF) attorney Fred von Lohmann.

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A Step Toward Protecting Fair Use on YouTube

More than 400 hours of video are uploaded to YouTube every minute. Some of those uploads make use of existing content, like music or TV clips, in new and transformative ways that have social value beyond the original (such as a parody or critique). In the U.S. this activity is often protected by fair use, a crucial exception to copyright law which can help discussion and creativity across different mediums to continue flourishing.

YouTube will now protect some of the best examples of fair use on YouTube by agreeing to defend them in court if necessary.

We are offering legal support to a handful of videos that we believe represent clear fair uses which have been subject to DMCA takedowns. With approval of the video creators, we’ll keep the videos live on YouTube in the U.S., feature them in the YouTube Copyright Center as strong examples of fair use, and cover the cost of any copyright lawsuits brought against them.

We’re doing this because we recognize that creators can be intimidated by the DMCA’s counter notification process, and the potential for litigation that comes with it (for more background on the DMCA and copyright law see check out this Copyright Basics video).  In addition to protecting the individual creator, this program could, over time, create a ‘demo reel’ that will help the YouTube community and copyright owners alike better understand what fair use looks like online and develop best practices as a community.

While we can’t offer legal protection to every video creator—or even every video that has a strong fair use defense—we’ll continue to resist legally unsupported DMCA takedowns as part of our normal processes. We believe even the small number of videos we are able to protect will make a positive impact on the entire YouTube ecosystem, ensuring YouTube remains a place where creativity and expression can be rewarded.

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9 Responses

  1. Anonymous

    Copyright enforcement must finally be hitting their piracy business model in the pocketbook.

    May they perish in flames.

    • Anonymous

      “Copyright enforcement must finally be hitting their piracy business model in the pocketbook”

      Believe me, I’m the last person to defend Google/YouTube and their industrial theft, but in this case they actually have a point:

      1) There’s a lot of false takedown notices going on — often from people who try to cash in on public domain content or take down cleared samples from legitimate, commercial sample libraries and keyboards.
      2) Quite a few content providers are still not aware that parodies and reviews are legitimate.

      Then again, this initiative is completely worthless. Most content providers share your opinion on Google — and nobody cares what pro-piracy organizations like EFF have to say.

      Bottomline: The DMCA needs a serious update!

      • Dan Dean

        cart before horse, if Google/Youtube had paid more attention to what people were uploading in the first instance, they mightn’t actually have to deal with this problem, they created this situation by choosing to exploit copyright infringement.

  2. keptic

    it is still fair use if the video in question has advertising on it that is not shared with the copyright owner?

    what does the law say about that?

    • Anonymous

      Commercial parodies and reviews are allowed.

      Whether that’s actually fair can — and should — be debated, though.

      Short clips in reviews or for educational purposes in general certainly serve a purpose, but is it really fair that the entire comedy industry is allowed to copy whatever it wants and make millions from it without paying a single cent to the owners?

  3. DavidB

    The chutzpah would be unbelievable if it came from anyone but Google.

  4. FarePlay

    In what can only be described as a coordinated attack, according to an article in today’s New York Times, YouTube is going to provide defense funding to fight takedown notices for user generated videos that use copyrighted work.

    An attack strategy supporting the recent testimony of Kit Walsh, Staff Attorney of the Electronic Frontier Foundation voiced at the recent Congressional Listening Tour at Santa Clara University on the outskirts of Silicon Valley. Ms Walsh was without question the most outspoken of all the attendees at a discussion dominated by representatives from the tech side of the conversation.

    I found myself seated in the audience not far from Walsh, who offered commentary on fair use at every opportunity, expressing her view that fare use, like copyright, were stifling creativity. Her most telling comment was that Fare Use needed to apply to not just partial use of copyrighted works, but entire works.

    Imagine how allowing entire copyrighted works under a fair use provision would further cloud and complicate a creators ability to control and monetize their work.

    YouTube is considered by many as the ultimate abuser of the “takedown” loophole in the DMCA making it the worlds largest and best known ‘alleged’ infringing website. So it comes as no surprise that YouTube would once again focus their attention and resources on weakening artists rights to support one of Google’s most successful business divisions.

    Piracy is a problem because our legislators have failed to make fundamental changes to the laws that regulate the use of copyrighted works on the internet. Proposed changes that would strengthen the position of creators are always aggressively opposed by Google, their lobbyists and Google supported organizations, like the Electronic Frontier Foundation. (In the NYT article lawyers from the EFF are quoted repeatedly.)

    Fair use on the other hand is an entirely different problem and one that will be difficult to define by either side. User generated content drives a tremendous amount of traffic to YouTube and much of it depends heavily on copyrighted music, films and photographs, which means YouTube wants little or no restraints, while the creators want as much protection as possible.

    Currently fair use is decided on a case by case basis by the courts. Just how they will or can create a standardized code for fair use is going to be difficult.

    One thing I do know. It is no coincidence that fair use was brought up at a Congressional Hearing in front of Bob Goodlatte, Chairman of the House Judiciary Committee, and other members of the House Judiciary Committee and then followed up by this story in the New York Times ten days later.