Copyright and Youtube and Fair Use Oh My!

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    Christian
    Christian
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    Nick, you predicted that people would comment on this so I don’t want you to feel let down. I thought you guys got it mostly right, just wanted to clarify a few things.

    I don’t think most people understand copyright much less fair use. Property rights are simpler, so when most people discuss copyright, it gets distilled down to a type of property. You see a lot of comments on Youtube about the ownership of a particular song, but there is no ownership associated with copyright. Copyright is a temporary set of exclusive privileges associated with a work, the right to make additional copies, create derivative works, etc. When you buy a CD, the ownership of that particular copy of the work transfers to you, while the author retains the exclusive right to make additional copies (the copyright). You have all the property rights for that copy such as the right to use, sell, destroy, etc. The copyright holder cannot demand that you cease use of, sell, or destroy your copy of the song. They are not the owner of that copy, you are. This is why describing copyright as a type of property is not a good fit. You can see how describing it that way suggests the copyright holder has more rights than they do. Media companies try to popularize the term “intellectual property” just for that reason.

    You mentioned that Youtube has algorithms to scan for copyrighted works. While technically true, this could be misleading because all videos and music are automatically copyrighted upon creation. Therefore every video on Youtube created after a certain date is copyrighted. A studio produced music video is not “more copyrighted” than a camcorder filmed birthday party. Also, these automated takedowns (or any takedowns) do not necessarily mean the video was infringing, but are more likely due to a contractual obligation that Youtube has with a movie or music studio.

    Some people wonder why Youtube doesn’t do more to stop infringement. Under the current system, it’s the rights holder’s responsibility to inform Youtube of a violation. It would be problematic to switch the burden of finding copyright violations to Youtube for the following reasons.

    Fair use is a four factor test to determine if someone who is not the copyright holder may exercise one of the exclusive rights. Each factor (purpose and character of the new copy, nature of the original copy, percentage of copying, and effect upon the work’s value) is weighed to determine if the new copy is unlawful. The thing to remember about fair use is that it’s always subjective. While some types of uses such as parody, education, and news tend to qualify as fair use, you cannot declare that every parody, educational, or news reporting use will be considered fair use by a court. Likewise, other uses are not automatically infringing. A court is the only body that can definitively say whether or not fair use applies. Regarding what was said on the show, see the Wikipedia article and look at the common misunderstandings: “Fair use interpretations are unique and limited” and “If you’re copying an entire work, it’s not fair use”.

    Given the “soft” nature of fair use, it’s problematic for someone other than a court to be put in a position to decide on fair use. It is impossible for Youtube to know for sure whether or not a work would be considered fair use. In addition to fair use, there will be other questions that are difficult for Youtube to answer. Is the work still under copyright? If so, who is the copyright holder? Is the person who uploaded the video the copyright holder? A lot of movie studios and record companies upload their own songs to Youtube. Should someone claiming one of these be taken at their word, or does Youtube have a responsibility to do their own research to avoid improperly removing videos? That’s a lot of work considering the number of videos, and this would have to be done by hand.

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