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Quoted from the Copyright Actâ¦
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The distinction between âfair useâ? 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. Acknowledging the source of the copyrighted material does not substitute for obtaining permission.
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William Patry is senior copyright council for Google. This is what he has to say about Fair Use. I've edited it (you can read the whole post at http://williampatry.blogspot.com/2007/05/barton...) He's a very good writer and it's a good blog.
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Patry says....
I have been studying fair use seriously for over 25 years. I have read every English and U.S. fair use/fair dealing decision I could find, many of them many times over; I have read a voluminous amount of commentary on the subject; read and re-read the legislative history of Section 107 and spoke to those involved in that process; testified before Congress on the subject, and as a Congressional staffer, I was heavily involved in the 1992 amendments on fair use and wrote the House Judiciary Committee report on the subject; as a Policy Planning Advisor to the Register of Copyrights I went to Brussels to discuss with European Union officials how fair use works and how it might work with software reverse engineering; as a law professor I spent years teaching the subject; .... [snip]
Yet, despite all this concentrated attention, I doubt I understand fair use much better than when I was a law student... ...there are reasons anyone might feel uneasy about coming to grips with the subject: it is ad hoc, fact-oriented, allegedly completely equitable in nature, and dependent on a shadowy weighing of vague factors, to say nothing of the luck of the draw in the decisionmaker.
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I would caution about depending too heavily on "fair use" as an argument for using content which is not your own - at least not without legal council.
I would, however, worry about the rights you sign over to YouTube when registering, be sure to listen to the latest Copyright 2.0 Show for that.
Jeremy: True, but the odds of getting DMCAed when you only host the video on your site and your only use is clearly fair is slim to none.
Still, the concern is valid.
Perhaps a middle ground then, a third-party file hosting service like S3?
Viacom and others need to balance the risk, cost and reward carefully here.
thought you'd be interested in this backflip. there are some insightful comments sprinkled in with the lawsuit advocates.
This was intended to be a more general look at the issue. However, your point is well taken and is something I've brought up in the past.
That being said, if we can not rely on fair use at all, even under the most basic of circumstances, then having the provisions makes no sense. I agree with what you're saying, but I shudder at the thought of living in such a world where every reliance on fair use first requires consultation with an attorney. When I do my DMCA Seven series, I should, in theory consult with my lawyer(s) about my use of company logos.
I don't because I am confident the use is fair, both in terms of trademark and copyright.
Still, the point is taken. Reliance on fair us is always a risky gambit. I agree totally.
Bright: Actually, we covered that in the last episode of the Copyright 2.0 show and it was one of the (many) stories that inspired and necessitated this article. Between this, the NFL copyright notice takedowns, the million or so Daily Show takedowns and other Viacom foot-stompings, this just had to be said.
Meanwhile, the "This is Sportscenter" videos that random people uploaded two years ago still stand.
I intend to do fair use reviews of anime and movies, but it has been proven time and time again that if you review anime, you will be banned. A fraudulent DMCA claim was filed by Studio Ghibli against a reviewer last month.
Hell, prominent anime voice actor Johnny Yong Bosch, who had permission from his company to review anime on a show called "Anime TV," was BANNED by YouTube because they only FEARED someone would file a DMCA claim against him!
I'm sick of people saying that we shouldn't blame YouTube. YES WE SHOULD. If it's something that may even have an inklet of potential copyright infringement, YouTube usually jumps the gun and deletes it, citing that the video is, "of an inappropriate nature." They're cowards that have zero respect for Fair Use and the users that got them to where they are today.
No one is safe from fraudulent, frivolous copyright claims on YouTube. If you're a 10-year-old kid with 5 or more YouTube accounts, you have the power to bring down almost any director or content creator you don't like.
YouTube favors the flagger over the content creator, 99.9999% of the time (Exceptions: smosh, LisaNova, lonelygirl15).
YouTube's management is a disgrace.
As for blaming YouTube, I have mixed feelings. On one hand, the copyright climate they are in is not their fault. Viacom and others put them in this constant state of fear and until the courts come down on this issue. YouTube has been a target since day one and they know it. As such, they feel the need to go above and beyond to keep themselves on stable legal ground.
On the other, most video hosts don't have these issues. I don't see problems like this on Revver, for example. The reason is that they have balanced DMCA procedures. They value fair use and protect users from false notices. The DMCA gives hosts that right if they are willing to stand next to them in a lawsuit.
The problem is that YouTube, and thus Google, has the funding and the lawyers to make such a stand, but also much more to lose. So, rather than fight it out over individual users, they fight the larger battle and often times trample the little guys for what they see is the greater good.
Whether or not they are right will depend on the verdict. I guess we'll see...
Thank you for your comment!
Do educators, using Fair Use, have the right to download these videos to their computer for use in the classroom?
From YouTube's site:
Content on the Website is provided to you AS IS for your information and personal use only and may not be downloaded, copied, reproduced, distributed, transmitted, broadcast, displayed, sold, licensed, or otherwise exploited for any other purposes whatsoever without the prior written consent of the respective owners.
The fair use issue is difficult to predict but since educators have such great leeway on fair use issues it seems likely you would have clearance here. It would depend n on the specifics of the actual case, but I think you'd likely be starting from a good vantage point, a transformative use for educational benefit, etc.
The DMCA could be an obstacle depending on if YouTube and rightsholders considered the use of YouTube to be a digital lock that is being "circumvented" by you downloading it. Even if you are intending to make a fair use of the work, it might be an infringement of the DMCA.
You can read more about this specific area here:
http://www.chillingeffects.org/anticircumventio...
Finally, you have YouTube's TOS, which strictly forbids downloading. Even if it is legal under the DMCA and fair use, if you wave those rights under the TOS, it could be a breach of contract and a possible violation of the computer fraud and abuse act.
Though there are questions as to whether a TOS can apply to those who don't expressly agree to it (IE: Non-registered users) but this is by in large a new area of law that hasn't been widely tested.
That being said, it doesn't seem as if YouTube is doing much to stop downloading of their videos. Many sites make the process easy and operate in the open.
Do I think it's technically legal? I don't know. Too many hard questions to get a good answer. Do I think you'd ever get in legal trouble for it? Probably not. YouTube doesn't seem to press the downloading issue and no rightsholder is going to go after you, especially if they gave permission for educational use.
Of course, you could always try to brow beat your IT staff into allowing limited YouTube usage. But I suppose the odds of that are slim.
Hope this helps!
So videos that make use of movie/tv clips for the purposes of criticism/reviews (assuming the criticism/reviews are interspersed with the clips) are Fair use?