Sunday, September 4, 2011

Why understanding fair use is essential when it comes to taking videos down for Copyright

I got a DMCA on this myself

I considered going through his video point by point and spending several hours doing a video response. Sadly it is my opinion that he is not interested in facts or even the law. He has threatened to go to court against anyone who files a counterclaim against one of his videos. However, when push came to shove, he admitted that he can not afford a lawyer and on his recent video is an annotation asking for a lawyer to step forward and help him out.

Now let's go through his video point by point.

At the beginning of the video he admits that he filed a DMCA on a video because he objected to how his content was used. It has been pointed out many times by myself and others that his feelings are not an issue of copyright. Using the DMCA to censor criticism is not only wrong in the eyes of YouTube,

but also in the eyes of the court. In Lenz v Universal Music which you can read HERE the court found.

Accordingly, in order for a copyright owner to proceed under the DMCA with 'a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law,' the owner must evaluate whether the material makes fair use of the copyright.

Undoubtedly, some evaluations of fair use will be more complicated than others. But in the majority of cases, a consideration of fair use prior to issuing a takedown notice will not be so complicated as to jeopardize a copyright owner's ability to respond rapidly to potential infringements. The DMCA already requires copyright owners to make an initial review of the potentially infringing material prior to sending a takedown notice; indeed, it would be impossible to meet any of the requirements of Section 512(c) without doing so. A consideration of the applicability of the fair use doctrine simply is part of that initial review.

What I also find interesting is how Hungrybear9562 supports fair use when it suits his needs. Here you can see him making fair use of Lisa's video to prove a point that he is trying to make.

Hungrybear9562 did you get Lisa's permission to use her video? Now I know what you are going to say. First you are going to say that you had to show the video to prove your side of the story. Well that is the exact same reason Dontstandsoclosetome used your clips in his video. At the time of his video, the clips from your videos were not available as you had taken them private or unlisted. In order to prove that you said the things he claimed you did, he had to show those exact words.

Well if you remember that is the exact point I made towards you by referring you to TheMaskedAnalyst's video.

Another defense you could make regarding this video of yours is that the video you were showing was saved on your hard drive, therefore you own it. Well the videos using your clips came from their hard drives too. If simply being in possession of a video is the only claim you need for ownership then I own any of your videos I have on my computer.

The truth is you posted that video because you wanted to document proof of your side of the story. Simple as that. The video does not belong to you, however you are making a perfectly legal fair use analysis of the video in question to defend yourself. I support your right.

However, I could not help but wonder if Lisa would see differently about your use of her video. In case she does want it the copyright complaint webform is HERE

Anyway continuing on with the video from Hungrybear9562 about the DMCA. At about one minute into the video he uses a classic technique called misdirection to convince his viewers that the DMCAs in question were filed on videos that are simply reposting his videos in their entirety . Hungrybear9562 knows that this is not the issue at hand, however he is counting on his viewers to not call him out on this.

The DMCA was created to ensure that copyright owners could remove unauthorized reproduction of their work. However Fair Use does not require authorization by it's very nature. It is not just opinion but part of COPYRIGHT LAW

So the issue at hand is not people simple reposting his entire videos to their channel taking views away from him, rather it is the fair use of his clips for the purpose of commentary, criticism, and or parody. The fact that he may find some of the videos offensive is not an issue of copyright. For him to try and mislead his audience is shameful at best.

At 2:55 into his video he announces that YouTube acted on his copyright claim, as if to say that YouTube agrees with him because they acted on his DMCA. What he fails to understand however is that by LAW YouTube must act upon receipt of a copyright notice. This is to ensure that YouTube protects itself under what is known as the Safe Harbor Clause of the DMCA. YouTube will even accept DMCAs from 13 year old kids filing copyright claims on Justin Bieber and Lady Gaga as reported HERE

YouTube will even accept DMCAs from Al Queda 9/11 as reported by me

I have even gotten DMCAs from HappyCabbie. That is correct, people pretending to be me have filed copyright claims against my videos. YouTube by law must act on these.

So just because YouTube acted on your DMCA does NOT mean that your DMCA was justified. YouTube simply complied with the law.

Now, back to Hungrybear9562's video. At 3:14 he claims that someone told him that if someone used more than 50 percent of the video then you have the right to take it down. Well, there is a reason why you should always fact check what you find on the internet. The reason is that according to the US COPYRIGHT OFFICE

"The distinction between fair use and infringement may be unclear and not easily defined. There is no specific number of words, lines, or notes that may safely be taken without permission."

Furthermore, you can see for yourself that the video uses far less than 50 percent of Hungrybear's video. In fact, Hungrybear9562's content only makes up about a third of the content. So by his own standards, Hungrybear9562 filed a bogus DMCA

Find more videos like this on i-Tube

So where does this magical 50 percent number come from? Well it turns out it comes from The University of Maryland/University College. You can click on the article HERE

Under their section, An Introduction to Fair Use, they state the following:

"Does the amount you use exceed a reasonable expectation? If it approaches 50 percent of the entire work, it is not likely to be considered a fair use of the copyrighted work."

While the University of Maryland is certainly a great resource, the do list the following disclaimer:

"The information presented here is only general information. Legal advice must be provided in the course of an attorney-client relationship specifically with reference to all the facts of the particular situation under consideration. Such is not the case here, and accordingly, the information presented here must not be relied on as a substitute for obtaining legal advice from a licensed attorney."

In general it is to be used as a guideline and certainly should NOT be relied upon as legal fact. Especially when the US COPYRIGHT OFFICE already stated in their article on fair use,

"The distinction between fair use and infringement may be unclear and not easily defined. There is no specific number of words, lines, or notes that may safely be taken without permission."

Now back to Hungrybear9562's video, here is where it gets really strange. He then mentions some "Music Company" sued YouTube for a billion dollars and this is why we can no longer use music in YouTube videos.

Well let's check some facts. First of all it was NOT a music company but rather Viacom. Furthermore, YouTube/Google won and Viacom Lost. You can read the case HERE

Second of all YouTube has partnership deals from over 1000 copyright publishers to allow us users to make use of their music and other copyrighted clips in our videos. You can read more about it HERE IN THE YOUTUBE BLOG

If you prefer a video lecture you can listen to Margaret Stewart, head of User Experience, discuss how the Content ID system works and allows copyright publishers and video makers to upload and enjoy YouTube.

Occasionally the Content ID system misidentifies copyrighted content, or someone may wish to dispute the content ID match for grounds of fair use. Thankfully YouTube has such as system in place to quickly dispute Content ID matches. Read more about the dispute process HERE

Hungrybear9562 then goes on to say that he does not have the money to fight this in court, despite his previous threats of LOLsuits to anyone who dares dispute his copyright claim. He even places an annotation on the screen asking for assistance from a lawyer. Sorry but no copyright lawyer is going to waste their time fighting against fair use without money up front.

He then goes on to claim that he will continue to use the DMCA to remove videos that use his content in a way that he does not approve of. I seem to remember a few people such as WaterWorks4U that had a similar policy. If you would like to contact WaterWorks4U and ask how his DMCA policy is working out for him, you can contact him HERE

At 5:30 minutes into the video he claims to be some kind of messenger of God. Words fail me. Next

At 6:48 into the video he says he doesn't care that what he is doing may be illegal (As DMCA forms are filed under Penalty of Perjury), he intends to change the law. More power to him. However, I would not place my bets on him winning.

At 7:15 into the video he says those who use his content to criticise him lack creativity. Does this mean that when he used Lisa's video to prove his point, he was lacking creativity? She certainly did not give him permission to use that video.

He concludes his video by daring anyone to use his content so he can file a DMCA on him. If anybody does use his content please be sure to let me know so I can help spread your video. He will eventually learn that abusing the DMCA to censor criticism never works and it always fails. He does not have the money to follow through on his threats to sue you if you file a counternotice against his DMCA. He said so himself.

NOTE: I rarely log on Blogger to check comments so if you wish to discuss this blog post please do so on my announcement video HERE