YouTube: What's Fair Use?

When I was just ten months old, my father was killed in an accident. (Not to get all morbid on a Thursday morning, but it's relevant, I promise.) Among other things, he was an amateur filmmaker, and a few years ago I stumbled across a treasure trove of 8mm film he had shot in the 60s and 70s. Most of it was home movie-type stuff (from which I made an ultra-short found footage film, here), but in a shoebox all its own were several reels labeled "Truckin'." Tucked in between them was a yellowing, typed page of instructions, with references to specific shots and how they should match up to specific lyrics in a song. It was a "paper edit," as they're called, of an amateur music video my father had created for one of his favorite songs -- "Truckin'" by the Grateful Dead -- but never got the opportunity to cut together himself.

I was not myself a fan of the Dead, but I knew what I had to do: use the footage and the paper edit to finish my father's music video, more than 35 years after he had shot it. So I had the reels digitized, loaded them into Final Cut Pro, and cut it together, second by second, per his instructions. It was no great masterpiece by any standard: shaky and out of focus, most of the shots featured a friend of his thumbing his way down the country roads of then-rural Eastern Maryland. But my mom really appreciated seeing it, as did old friends of my father, who could watch it because I uploaded the video to YouTube and sent them links to it.

But in January, I noticed that the video was no longer on my YouTube page. It had been disabled, with a curt note from YouTube saying that Warner Music Group, Inc had detected a copyright violation in the video and requested that it be pulled. (WMG, of course, owns the rights to much of the Grateful Dead's catalog.) I was apparently not the only YouTube user to have a seemingly innocuous video pulled down by WMG: in a particularly egregious example, a video of a young woman singing "Winter Wonderland" was yanked for similar reasons.

The reason is this: YouTube has created something called the "content ID system," which allows copyright owners to use an automated search to find and take down content that appears to match theirs. According to the Electronic Frontier Foundation's Fred von Lohmann, "These systems are still primitive and unable to distinguish a transformative remix from copyright infringement. So unless they leave lots of breathing room for remixed content, these filters end up sideswiping lots of fair uses." The same article describes what happened on YouTube in January as a "fair use massacre" --

And that's exactly what has happened these past few weeks. And while today it's Warner Music, as more copyright owners start using the Content ID tool, it'll only get worse. Soon it may be off limits to remix anything with snippets of our shared mass media culture -- music, TV, movies, jingles, commercials. That would be a sad irony -- copyright being used to stifle an exciting new wellspring of creativity, rather than encourage it. It's clear from the Warner Music experience that YouTube's Content ID tool fails to separate the infringements from the arguable fair uses. And while YouTube offers users the option to dispute a removal (if it's an automated Content ID removal) or send a formal DMCA counter-notice (if it's an official DMCA takedown), many YouTube users, lacking legal help, are afraid to wave a red flag in front of Warner Music's lawyers. That's a toxic combination for amateur video creators on YouTube.

So what is fair use? It's been endlessly rehashed and debated, but after my video was taken down, I really wanted to know if it qualified as fair use, or was a legitimate infringement. According to Stanford's law school, it's rarely possible to determine whether something is fair use outside of a court of law, but inside a court, there are four factors which judges take into account:

1. the purpose and character of your use
2. the nature of the copyrighted work
3. the amount and substantiality of the portion taken, and
4. the effect of the use upon the potential market.

First and foremost is what they call the "transformative factor," ie the purpose and character of your work: "¢ Has the material you have taken from the original work been transformed by adding new expression or meaning? "¢ Was value added to the original by creating new information, new aesthetics, new insights and understandings?

I'd like to think my father's music video adds "new aesthetics and insights" to the song, so yeah.

Secondly, the nature of the copyrighted work:

Because the dissemination of facts or information benefits the public, you have more leeway to copy from factual works such as biographies than you do from fictional works such as plays or novels. In addition, you will have a stronger case of fair use if the material copied is from a published work than an unpublished work. The scope of fair use is narrower for unpublished works because an author has the right to control the first public appearance of his expression.

A little from column A, a little from column B. The song "Truckin'" definitely isn't "factual," but it's certainly been published for a long time and is very well known.

Then there's the "amount and substantiality taken," which in my case is all of it. Another strike against my case.

Next, we have to take into account "The Effect of the Use Upon the Potential Market." Am I depriving "the copyright owner of income or undermines a new or potential market for the copyrighted work"? In this case, I'd have to say no.

Lastly, there's the unwritten factor that may influence a judge or jury: "are you good or bad?"

When you review fair use cases, you may find that they sometimes seem to contradict one another or conflict with the rules expressed in this chapter. Fair use involves subjective judgments and are often affected by factors such as a judge or jury 's personal sense of right or wrong. Despite the fact that the Supreme Court has indicated that offensiveness is not a fair use factor, you should be aware that a morally offended judge or jury may rationalize its decision against fair use.

I'm good. That was easy.

All in all, I feel like the video probably falls into a gray area -- it's not like I copied verbatim the music and video tracks of some pre-existing work. Also, 99% of YouTube videos are some random home movie with somebody's favorite song playing underneath, which the EFF and Fred von Lohmann believe should be fair use:

The [content ID] system should not remove videos unless there is a match between the video and audio tracks of a submitted fingerprint. When we made this suggestion in October 2007, YouTube assured us that they were working on improving the tool. Well, it's been more than a year. If YouTube is serious about protecting its users, the time has come to implement this fix. (Some will point out that this implies that record labels and music publishers can never use the Content ID tool to remove videos solely based on what's in the audio track. That's right. I think that adding a soundtrack to your home skateboarding movie is a fair use. If copyright owners feel differently, they can send a formal DMCA takedown notice, and with any luck, we'll see each other in court.)

What do you think?