Google on Thursday announced a remarkable measure that could shift the balance of power between copyright claimants and those who upload YouTube videos covered by fair use, a legal principle that lets people uses others’ material for purposes like news reporting or satire.
The measure, described on the Google Public Policy blog, will involve YouTube (GOOG) picking up the legal costs of certain video creators who upload clips that appear to be lawful, but who are ordered by copyright claimants purporting to control the rights to take them down.
Google did not say how much money it put in the legal fund or provide specific examples of what sort of videos would qualify for the legal shield. But in the blog post, legal director Fred von Lohman did link to a page he described as “some of the best examples of fair use on YouTube.” That page includes links to a video by the Young Turks, a progressive news site, and also to remix and commentary videos posted by both liberal and conservative political voices. Those include:
- Mitt Romney’s Presidential campaign use of a clip of Barack Obama singing Al Green’s “Let’s Stay Together”
- A group that opposes same-sex marriage posting a rude rant by Perez Hilton
- A satire of Donald Duck confronting conservative commentator Glenn Beck
In the past, it’s been easy for those who dislike such videos to scrub them from the internet by submitting a so-called “DMCA notice”–a legal claim that obliges websites like YouTube to take down videos posted by others. While video creators can ask for the video to be restored, the process can take weeks, and does not shield them from copyright lawsuits.
Courts in such cases would likely find the videos qualified as fair use, and shield the creator from the copyright claim. But unfortunately, the litigation process is frightening and too expensive for most people–even if they know they would win. The practical effect is that, since the copyright claimant holds the upper hand, the DMCA process serves as a cheap and nearly risk-free way to censor a video or other unflattering information.
The concern is not just theoretical. This summer, the adultery site Ashley Madison made spurious copyright claims in an attempt to cover up news that its user base had been hacked. And, in a famous copyright case, Universal Studios spent nearly a decade in court attempting to trying to remove a 29-second home video that showed toddlers bopping to Prince’s Let’s Go Crazy.
This is why YouTube’s announcement is a game-changer: Copyright-based censorship strategies are no longer risk free. Now, before launching an unjustified DMCA takedown, the claimant will have to weigh the risk of going up against Google and its deep pockets in a lawsuit. (The legal environment could get even more interesting in light of a recent ruling in the Prince “dancing baby” that could make it easier for fair use victors to claim legal fees from those who removed their videos).
All of this, of course, is likely to spur copyright owners, who have long accused YouTube of profiting from piracy, to gnash their teeth. Such accusations are not fair. While YouTube, in its early days, was indeed awash in pirated videos, the service has since been at the front of helping companies identify their shows, and giving them the option to take it down or make money from it.
The new legal defense fund does not change any of this. As YouTube notes, only a tiny fraction of video creators will be able to avail themselves of the fund. This means that content creators who used the DMCA to protect their rights in good faith won’t be harmed. And, most importantly, YouTube has found a way to help shut off a popular censorship tool. Everyone should celebrate this.
For more about media censorship, see this video about Gawker’s fight with Hulk Hogan: