YouTube to defend clear examples of fair use, even in court

Nedim Malovic

YouTube to litigate copyright infringement/fair use actions on behalf of users harassed by subject to inappropriate DMCA takedown requests?

This is apparently what is going to happen soon, as IP enthusiast Nedim Malovic (Stockholm University) explains.

Here’s what Nedim writes:

“Over the past few days there have been interesting copyright-related developments taking place in the YouTube world. In particular, Google Director of Copyright, Fred von Lohmann, wrote a post published on the Google Public Policy Blog, in which he announced that YouTube will now take action to defend (in court if necessary) what he called “some of the best examples of fair use on YouTube”.

Developed via case law, the fair use doctrine is enshrined in §107 of the US Copyright Act, and provides that:

“the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include—

Fred von Lohmann

(1) the purpose and character of the use [with a relevant consideration being whether the use at hand is transformative], including whether such use is of a commercial nature or is for nonprofit educational purposes;

(2) the nature of the copyrighted work;

(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

(4) the effect of the use upon the potential market for or value of the copyrighted work.

The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.”

Besides the possibilities offered by joining the ContentID programme developed by YouTube itself, similarly to other Google products relevant rightholders can seek removal of content from YouTube on copyright grounds by submitting a DMCA takedown request [if one takes a look at the Google Transparency Report, the numbers are impressive: overall Google appears to receive approximately 1,500 takedown requests each and every minute].

According to Mr von Lohmann, in some instances DMCA takedown requests have been

YouTube feline sensation

submitted in relation to videos that made use of existing content in new and transformative ways, and amounted for instance to a parody or critique. In other words, these requests related to videos that were protected as fair use under §107.

Google’s announcement that it will defend content uploaded onto YouTube by users/creators is rooted within the idea that “creators can be intimidated by the DMCA’s counter notification process, and the potential for litigation that comes with it ... In addition to protecting the individual creator, this program could, over time, create 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.”

In any case, the territorial scope of Google’s initiative will be limited to the US. It will be interesting to see when – and perhaps even more relevant: how frequently – Google takes action to defend its user’s rights under §107.”