Brief 6 - Copyright and Fair Use

Youtube.com is one of the largest distributors of digital content, but they don't exactly respect the idea of fair use. According to Arstechnica.com, video content can be taken down due to alleged "copyright usage violations" that should be legally left alone, including NASA public domain videos. In the past, Youtube took down a political satire video of Obama, then put it back up without explanation. When asked why they took it down in the first place, they refused to comment on why it was taken down, who requested the takedown, and how it was requested.
Many copyright holders choose to instead profit off of the videos by placing ads on them. A quick search for Michael Jackson's "Thriller" will show 'lyric videos,' parodies, fan-videos, and of course, minecraft videos. And if we take a look at this song's Music Policy on youtube we see that whoever now holds the rights to this song is choosing to put ads on these videos and profit off of them. But not everyone is content to simply profit off of videos made under Fair Use.

One company overseas is taking advantage of youtube's apparent weakness to lawsuit: Nintendo. A common video genre on Youtube is a "Let's Play." A fan of a video game plays while recording the playthrough, while offering humorous and usually explicit commentary. This is defended under fair use through the commentary clause, which Fair Use protects. However, fair use is an America-specific law, and Japan has no such law. So when Nintendo noticed gamers on Youtube were making these videos, they decided to take action.

"A prolific LPer named Zack Scott took to Facebook yesterday to complain that several LPers had experienced takedowns of the videos including Nintendo games. A company fan like himself wasn't the right target for automated takedowns, Scott complained, and he said he'd stop playing Nintendo games until the situation was straightened out. "It jeopardizes my channel's copyright standing and the livelihood of all LPers," he wrote."

According to the EFF, youtube only allows three "Copyright strikes" on your account before it takes down your account and removes all your videos completely.

"As part of the Digital Millennium Copyright Act of 1998 (DMCA), Congress granted online service providers (like YouTube) certain protections from copyright infringement liability, so long as they meet certain requirements. One requirement of this "DMCA safe harbor" is that online service providers must implement a "notice-and-takedown" system. Another requirement is that YouTube must cancel the accounts of "repeat infringers."
     That's why, when YouTube receives a formal DMCA takedown notice from a rightsholder, it removes the video. It also puts a "strike" on your account, and requires you to complete a mandatory session in its online "Copyright School." Once you accumulate 3 "strikes" on your account, YouTube will cancel all of your YouTube accounts, taking down all of your videos and refusing to allow you back as a YouTube account holder."
--Eff.org

The DMCA itself does not seem to conflict with Fair Use in the first place. According to Fair Use, people are free to make intellectual property using other people's ip material as long as they're using it for some sort of commentary, parody, or education. Naturally the exact legal boundaries are disputed, but this is legal content that is being created in the cases of Lets Plays and covers of Thriller. So the rights-holders of Michael Jackson's songs and Nintendo should have no legal standing to take down or profit off of this content, but they do.

So where does the DMCA come in? Well, basically, if Nintendo is correct in their claim that some guy playing video games in front of a camera is violating their rights, then youtube itself can be liable. And if youtube does go to court over the sanctity of their users' rights, and prove that Nintendo "knowingly materially misrepresents" their claim, the DMCA makes provisions for their legal fees to be paid. However, if they are wrong, they are liable for the video's violation. (Source: sfwa.org)

So youtube, in an effort to avoid costly lawsuits, seems to be taking down videos that get DMCA-requested. Nintendo may not be legally right, but if it costs too much to prove the Nintendos, Michael Jacksons, and every other company with a chip on their shoulder wrong, then creators that utilize fair use will be under fire even though they didn't do anything wrong.