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YouTube will protect some, but not all, legitimate videos.

By Don Reisinger
November 20, 2015

YouTube will ante up some cash and legal protection to content creators who it believes, are unfairly targeted in video-takedown requests.

Google GOOG -owned YouTube will put its full legal might behind video creators who have been targeted in Digital Millennium Copyright Act (DMCA) takedowns, the company’s copyright legal director Fred von Lohmann wrote in a blog post on Thursday. While von Lohmann says that YouTube will only provide its legal support “to a handful of videos,” the company will cover the cost of any copyright lawsuits brought against its creators. According to a section on its Copyright page, YouTube will limit its total legal costs contribution to $1 million.

“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,” von Lohmann wrote in the blog post.

The DMCA is one of the more controversial U.S. copyright laws. The law is designed to criminalize any person, device, or service that has illegally distributed copyrighted material. Many of the world’s largest content creators have targeted YouTube users for allegedly violating the DMCA and over the last several years, the video-sharing site has been forced to remove a slew of videos under the law.

The DMCA became a hot-button issue in 2007 when Viacom, which owns the rights to countless movies and television shows across the approximately 170 networks it operates, sued YouTube for more than $1 billion in damages. The company argued that YouTube was home to “massive intentional copyright infringement,” and identified over 160,000 Viacom-owned clips on the service. While YouTube maintained its innocence, saying that it was in the “safe harbor” provision of the DMCA that shields from liability certain companies indirectly involved in the distribution of content, the case went on for years. It was finally settled in 2013, when a federal judge ruled in favor of YouTube, dealing a deciding blow to Viacom.

Still, the case had a far-reaching impact. In an attempt to sidestep similar lawsuits, YouTube streamlined the process to remove videos from its service. While the company has argued that it’s simply ensuring no copyright violations occur on the site, industry advocates, including the Electronic Frontier Foundation (EFF), have argued that YouTube is not doing enough to protect the so-called “fair use” provision. That provision allows for copyrighted content to be used under certain conditions, based on how much of it is used, in what way it’s being used, and how the user may be attempting to profit off the use of copyrighted clips.

MORE: Why YouTube’s New Copyright Campaign is a Game-Changer

“Courts typically focus on whether the use is ‘transformative,'” YouTube writes on its Copyright informational page. “That is, whether it adds new expression or meaning to the original, or whether it merely copies from the original. Commercial uses are less likely to be considered fair, though it’s possible to monetize a video and still take advantage of the fair use defense.”

YouTube is using the fair use provision as part of its new policy to protect the “handful” of users who are employing copyrighted material for their own video content. According to von Lohmann, YouTube’s new policy “will now protect some of the best examples of fair use on YouTube.”

Still, von Lohmann acknowledged that the company faces serious challenges in attempting to safeguard its legitimate users. More than 400 hours of video are uploaded to YouTube each minute, and some of those include copyrighted material. While YouTube will likely take down a full movie, von Lohmann argues that users should be allowed to use certain clips from shows or films without being legally liable.

“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),” he writes. “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.”

For now, YouTube has extended the protection to four videos (available here) that will remain available in the U.S., despite takedown requests. The company did not say whether it will extend the program, but the EFF, which would like to see the service expanded, says it’s at least a step in the right direction.

“While we would like the program to do a little bit more—for example, given that the main criteria is that a video must be clearly lawful we’d like YouTube to provide any user that meet that criteria the option of enrolling their video into the program, rather than hand-selecting which ones gets to participate—we think this is a solid and unprecedented step forward in protecting fair use on the site,” the organization wrote in a statement on Thursday. “We commend YouTube for standing up for its users, and we hope the program will inspire other service providers on the web to follow its lead.”

YouTube declined to comment on this report.

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