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YouTube, Copyright, and Higher Education: Lessons from Viacom?

By Georgia Harper

If you are reading blogs, it is safe to assume that you know what YouTube is. If you are reading this blog, it is probably also safe to assume that you are aware that there are significant copyright issues related to materials uploaded and available on the YouTube site. If you are working at a college or university, you are also undoubtedly aware that YouTube videos are frequently used by faculty in both F2F teaching and in online courses. The YouTube videos used range the gamut from amateur home videos to clips from commercial films to remixes of various media. The underlying copyright question is always the same: Can these videos be used in courses by faculty without infringing copyright? Of course, education doesn't have the corner on copyright, infringement, and YouTube. Viacom is currently suing YouTube over claims that Viacom content is available on YouTube illegally and that YouTube knew it and didn't do anything about it. YouTube is asserting online service provider immunity under the DMCA but Viacom disputes their eligibility for that defense. Last week thousands of previously sealed documents from this three-year old case were released, including lots and lots of email. Google email is involved as well because they own YouTube. Nobody looks good now, particularly Viacom. According to the news articles, http://www.wired.com/threatlevel/2010/03/viacom-youtube/ Viacom has apparently been covertly uploading a significant number of videos of its own content to YouTube in a marketing effort. Apparently, Viacom employed at least 18 marketing firms to engage in this effort, had one of its own divisions "rough up" the videos to make them look pirated, and even sent employees to places like Kinko's to upload via their computers. Viacom did such a great job that it (and its lawyers) doesn't even know what videos it put up - Viacom's own monitoring agent, BayTSP, identified many videos that had been posted with Viacom's permission. Therefore, asserts YouTube, http://youtube-global.blogspot.com/the only way to know if something was unauthorized was from Viacom take-down notices. Even worse, some of the videos Viacom uploaded are the subject of the suit! Also of interest is YouTubes' Content ID system, available by subscription to copyright holders. This system scans over 100 years' worth of video everyday and lets rightsholders choose whether to block, leave up or monetize the videos. According to YouTube, "over 1000 media companies are now using Content ID - including every major US network broadcaster, movie studio and record label. The majority choose to make money from user uploaded clips rather than block them." OKaaay. Time Out. Media companies are posting their own material, openly or not openly, and tacitly endorsing uploads of their content by other users because its free advertising? And I was worried about use of commercial YouTube clips by our professors for transformative educational purposes in accessed-controlled online course environments? Not only do I think our fair use position is solid, I now wonder how in the world one is supposed to know whether something is up on YouTube with the tacit permission of the commercial rightsholder? In fact, how does one know that the rightsholder didn't put it up there itself? (I know I'm missing something technical, but I'm not sure it matters...) How does this affect what we tell faculty? Although each use of a YouTube video should be evaluated individually, recent events somehow dramatically lessen my concerns (in those instances where I had concerns) about use of commercial-looking videos downloaded from YouTube for nonprofit educational teaching purposes, especially where such uses are highly transformative. By that I mean, the faculty are almost always using the clips to illustrate something entirely different than what the creators intended when creating them. How are other institutions handling copyright and YouTube videos? peggy

Full post as published by ©ollectanea on March 24, 2010 (boomark / email).