The notion of “fair use” is a long-enshrined concept in copyright—effectively an “exception” to copyright law, it allows the use of portions of (or in some cases the entirety of) a copyrighted work without permission from its rights holder, for purposes such as review, criticism, commentary, or education. Many cases of fair use have to be litigated to be determined, while others are fairly obvious.
Fair use is an important issue across all different copyrighted media—books, music, video, and so on. It’s also been responsible for a remarkable number of copyright conflicts, most recently the Google Books affair currently seeking certiorari with the Supreme Court. Given how easy it is to copy, excerpt, and remix media via the Internet, you could say that the question of fair use is one of the fundamental questions of the Internet itself.
And where fair use meets the Digital Millennium Copyright Act, we wind up with some major conflicts. The DMCA basically tells Internet services like blogs or YouTube that they can have “safe harbor”—that is, they can’t be held liable for copyright-infringing content a user uploads—as long as they act to take down infringing content as soon as they’re told about it. A service like YouTube, which gets some immense amount of content uploaded every day, can’t hope to vet it all manually, so it creates an automated process to let rights-holders detect and file claims on infringing content. And that’s where one of the big problems comes in.
Doug Walker, aka the Nostalgia Critic, has released a 20-minute video looking at the fair use rights problem on YouTube, and it is an especially important issue for people who make their living doing videos that make fair use of copyrighted content. The fundamental problem is that the automated copyright takedown system on YouTube is extremely biased in favor of content owners, who are allowed to make repeated copyright claims against channels (such as the Nostalgia Critic’s own, or those of several other people who get to present their cases in this video), divert any monetary revenue from their videos, and effectively stifle negative reviews of their products, without any negative repercussions if it turns out their claims are invalid. This system handicaps YouTube creators by limiting their ability to defend against such claims, potential even resulting in their channels being taken down if they have too many against them at once.
Most content creators can’t afford to litigate these cases, but one who did resulted in a judgment from an appeals court ruling that studios should consider whether a use might be fair before sending a takedown notice. That doesn’t seem to have changed anything, however. Walker notes that his own channel has to deal with YouTube copyright complaints literally every other day. Walker makes review and criticism videos that usually feature clips from movies—a fair use by the very letter of the law—but he has nonetheless had to limit his use of clips in some of his videos simply because the studio responsible has already demonstrated its willingness to make life difficult for him if he doesn’t. But some review and criticism videos from others—including one channel that features no content from the movie at all, just video of people sitting in a car talking about it—have nonetheless had claims filed against them as well.
This particular case may not seem as though it has much to do with the question of e-books, but the thing about fair use is that it’s supposed to work the same universally. Just as a movie studio can file a claim against someone who uses clips from its movies on YouTube, a publisher could file a claim against someone who excerpted text or photos from one of its books for use in a review. While YouTube’s system of automation goes beyond the DMCA law requires, it’s possible that other sites that deal with huge amounts of content could use similar automated procedures—especially if they’re also owned by Google. And even without such automated systems, the simple act of sending a DMCA takedown will automatically stifle free speech for ten days even if a counter notice is filed.
You could also argue that posting a video to YouTube, as the Nostalgia Critic does, is effectively a form of “self-publishing” video content. Self-publishers don’t have access to the sorts of legal defenses that the traditional publishers and entities that publish in other media do—and anything that weakens fair use for self-publishers of any content weakens it for self-publishers of all content. With that in mind, self-publishing authors and anyone whose livelihood or hobby depends on the right to make fair use of others’ content should stand with the Nostalgia Critic and so many others in asking “Where’s the fair use?”