The world seems like a particularly shitty place at the moment and it can be hard to feel thankful for anything. There are days where I really struggle to come up with anything positive to talk about. Luckily, I don’t have to work so hard at it today.
You may remember back in September, the Ninth Circuit Court of Appeals ruled that fair use wasn’t just an affirmative defense to copyright infringement (i.e. a defense you could only assert after being sued), but was in fact a right that all users had from the outset; a right enshrined explicitly in U.S. copyright law. This ruling was the result of Universal Music having a young woman's home video removed from YouTube under the DMCA because a Prince song was playing in the background. Hardly the stuff of malicious infringement, and the court agreed.
While the ruling hasn’t been adopted nationwide, it sets a powerful precedent for the rest of the country. It means that any copyright holder who feels its work is being infringed online by another party must first consider whether the use of that work is actually harmful to its economic interest. If the answer is no, there’s nothing they can do. That’s a fair use and issuing a DMCA takedown notice would not result in the work being removed from the ISP’s server.
I hailed the news because it truly democratizes copyright and recognizes what I’ve longed believed to be true... that the scope of fair use should be expanded due to the ease of access to copyrighted material and the increasingly litigious nature of corporate copyright owners and their pursuit of even the most benign infringers. There’s no arguing the internet has changed the way we find, process, and regurgitate visual and written content. It's occurring at an exponential rate, and regular people (and artists) need protection from copyright holders who have the power and ability to dictate policy merely because of their deep pockets. Well the good news keeps on coming (for once!) because YouTube’s owner, Google, is promising to protect regular users if and when they need legal help. In a recent blog post, The tech giant’s copyright director Fred von Lohmann stated that:
“We are offering legal support to a handful of videos that we believe represent clear fair uses which have been subject to DMCA takedowns. With approval of the video creators, we’ll keep the videos live on YouTube in the U.S., feature them in the YouTube Copyright Center as strong examples of fair use, and cover the cost of any copyright lawsuits brought against them.”
They'll cover up to $1 million in legal fees in certain select cases. Why are they doing this? Per Lohmann:
“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.”
You don’t often see large companies rushing to the aid of its users like this, so even if the motivation isn’t altruistic, I’m not sure that really matters. You don’t have to be pure of heart to do good works. Personally, I think Google is just sick and tired of the thousands and thousands of DMCA takedown notices it gets everyday. If they can clear the decks by setting up a “‘demo reel” that will help the YouTube community and copyright owners alike better understand what fair use looks like online and develop best practices as a community,” they can allocate their resources to other more interesting projects. That alone (plus the inevitable good press), are reason enough, and that makes me happy.
Is it perfect? Of course not. But it’s a step in the right direction, and I’m thankful for that. I hope you all have a very Happy Thanksgiving.