Copyright Law

YouTube, Fingerprinting and Fair Use

By Andrew Raff, Esq.

Critic and filmmaker Matt Zoller Seitz wirtes an essay about how YouTube and the DMCA Takedown procedure are harming online film criticism, The House Next Door: Copy Rites: YouTube vs. Kevin B. Lee: "When the history of intellectual property law is written, January 12, 2009 should be marked as a decisive moment. It was the day that my friend, fellow House Next Door contributor and sometime filmmaking partner Kevin B. Lee saw his entire archive of critical video essays deleted by YouTube on grounds that his work violated copyright."

The web has the potential to make multi-media criticism accessible and easy to create. Criticism and comment on a work is a paradigmatic example of Section 107 fair use.

However, because video is complex and bandwidth intensive, video hosting sites like YouTube in particular have made it possible for the non-technical critic to embed videos into a web page. And these video hosts have little desire to defend their users' alleged infringements as non-infringing fair uses. The DMCA §512(c) safe harbor creates an incentive for video hosting providers to respond promptly to notices of alleged copyright infringement and take down those allegedly infringing videos.

With the rise of audio and video fingerprinting technology, YouTube and other video hosting sites may be scanning user uploads for potential copyright infringements of works owned by their content partners. YouTube is offering its users the ability to replace copyrighted music in soundtracks with music licensed to YouTube's music library.

The EFF's Fred Von Lohmann calls the deployment of this audio fingerprinting technology, YouTube's January Fair Use Massacre: "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."

Does YouTube have a responsibility to promote fair use? Or is it actively helping its users by forcing them to avoid any uses that might possibly infringing?

Full post as published by IPTAblog on February 03, 2009 (boomark / email).