YouTube is copying the RIAA’s legal tactics, except this time you win

YouTube Headquarters
YouTube headquarters YouTube
Remember when the RIAA and the MPAA were randomly selecting people to sue? Make the mistake of downloading six songs or a movie that wasn’t available any other way, and they would sic the lawyers on you, threatening you with fines of up to $150,000 per illegal download. Remember when a Minnesota woman was ordered by a court to pay $1.92 million for downloading 24 songs? Fun times!

Now Google has adopted a similar tactic — but in this case, to defend the legitimate reuse of copyrighted material. It’s going to raise the cost to content owners of filing baseless copyright infringement claims, protecting not downloaders of music but uploaders of videos to YouTube. It’s a thorough moral switcheroo, and thank you, Google, for pulling it.

Here’s what the company posted on its public policy blog late last week:

YouTube will now protect some of the best examples of fair use on YouTube by agreeing to defend them in court if necessary.

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.

Fair Use provides an exemption to the right of copyright holders to throttle your reuse of their materials if your use is a parody, a review, or educational, or has other similar uses. Whether a specific reuse is covered depends upon vague criteria, including whether you’re using too much of the copyrighted material, and whether your use is going to weaken the market for the original. Google’s own examples of obvious cases of Fair Use include: a review of a video game that uses lots of game clips, a news report about a possibly racist broadcast that shows the relevant portion of that broadcast, and a mashup of Donald Duck cartoons and Glenn Beck broadcasts.

Fair Use is vague for two reasons. First, it arose not as a law but from courts pushing back against obvious overreach by copyright holders. Remember, copyright is established in the U.S. Constitution for a very specific purpose: “To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” When copyright starts to strangle the Progress of Science and the useful Arts, the courts take notice. Eventually, in 1976, Fair Use got explicitly added to copyright law, but it’s not much clearer there.

Second, the guidelines are loose because it’s too hard to codify all the instances where the unauthorized reuse of copyrighted materials ought to be allowed. The legal system can sort out the particulars. But how many YouTubers have lawyers on their speed dial?

Google stepping in is a very good thing, and not just for the relative handful of people who will benefit from the company’s lawyers. Knowing that Google might step in could have the sort of chilling effect on copyright overreach that the RIAA wanted to have on music downloaders.

how many YouTubers have lawyers on their speed dial?

So, far, the game’s been stacked in favor of the overreachers. Four hundred hours of video are uploaded to YouTube every minute. YouTube obviously cannot check it all for copyright violations. So Congress created a system for cases like this. It’s just a very broken system.

The Digital Millennium Copyright Act (DMCA), passed in 1998, says that sites that let users post content without vetting it cannot be held liable for copyright violations by the site’s users. That’s a very good thing. Otherwise, YouTube and much of the rest of the Internet would instantly be sued out of business.

But, the DMCA says that, for this privilege, sites like YouTube have to expeditiously remove any content that a copyright holder claims infringes on its rights. If YouTube doesn’t remove that content, then YouTube itself can be held liable for copyright infringement. So sites like YouTube have an enormous incentive to take down any content that a copyright holder merely claims is an infringement. Furthermore, if later on a court decides that the content in fact was not an infringement, the user who posted it has no right to claim damages from YouTube. So it’s a classic Don’t Lose-Don’t Lose situation for YouTube.

For users the DMCA means your content is going to come down, no questions asked, as soon as someone sends a notice to the host claiming that it’s infringing. No one at YouTube is going to look at your content to decide if it’s covered by Fair Use. And, what’s worse, the notification from the owner was also very likely generated by a bot, so no one on that side of the equation ever saw your content either.

This creates a perfectly automated machine for letting Big Content sweep through sites, sending takedown notifications, thousands at a time, about content that their algorithms think maybe might sort of kind of infringe on their rights.

Remember how Fair Use is vaguely defined and often needs a human to make a judgment call? That’s exactly what we don’t get in the current system. Everything is stacked against pushing back.

Until Google becomes your friend.

It would be great if there were some penalty copyright holders had to pay if they issue a takedown notice for an item that is in fact not an infringement. That would discourage the massive, bot-generated floods of takedown notices coming from Big Content. (Sure, the DMCA law has a provision for penalizing some types of bad takedown notices, but it’s toothless.)

This is where the similarity to the RIAA-MPAA tactic comes in. Raising the cost of misbehaving for a few can discourage misbehaving by many. Knowing that Google might push back, tying up your lawyers, could make someone who makes TakeDowns rain down pause for a moment, just as the RIAA and MPAA hoped their random and relentless lawsuits would discover teenagers who had learned how to use BitTorrent.

Even if Google’s defense of some YouTubers does not discourage the flood of takedown notices, these suits could help establish Fair Use more firmly than ever.

Given that in the beginning of November, Google Books won a big, 11-year lawsuit on the grounds of Fair Use, it looks like Google is ready to take up this cause. Is this because Google values an open Internet, which helps accomplish the Constitutional aim of promoting the Progress of Science and useful Arts? Is it because YouTube’s business model depends upon people uploading their videos without having to fear a content bully taking them down? My guess is both.

In either case, Fair Use has a new champion.

# # #

Further reading:

The DMCA Takedown Notice Demystified

Lumen: An archive of takedown notices

David-shorensteinDavid Weinberger writes about the effect of technology on ideas. He is the author of Small Pieces Loosely Joined and Everything Is Miscellaneous, and is the co-author of The Cluetrain Manifesto. His most recent book, Too Big to Know, about the Internet’s effect on how and what we know.

Dr. Weinberger is a senior researcher at the Berkman Center. He has been a philosophy professor, journalist, strategic marketing consultant to high tech companies, Internet entrepreneur, advisor to several presidential campaigns, and a Franklin Fellow at the US State Department. He was for four years the co-director of the Harvard Library Innovation Lab, focusing on the future of libraries.

The views expressed here are solely those of the author and do not reflect the beliefs of Digital Trends.

Emerging Tech

Awesome Tech You Can’t Buy Yet: Grow veggies indoors and shower more efficiently

Check out our roundup of the best new crowdfunding projects and product announcements that hit the web this week. You may not be able to buy this stuff yet, but it sure is fun to gawk!
Smart Home

A personal skyscraper, tech magnate's mansion, and more of the biggest houses ever

The only thing bigger than these giant homes is their huge price tags. There's a reason many of the owners are billionaires instead of millionaires. Check out the digs of some of the richest people in the world.
Home Theater

Here's a handy guide to mirroring your favorite devices to your TV screen

A vast arsenal of devices exists to allow sending anything on your mobile device (or PC) to your TV. Our in-depth guide shows you how to mirror content from your smartphone or tablet to the big screen.

Chrome is a fantastic browser, but is is still the best among new competitors?

Choosing a web browser for surfing the web can be tough with all the great options available. Here we pit the latest versions of Chrome, Opera, Firefox, Edge, and Vivaldi against one another to find the best browsers for most users.
Home Theater

Sony’s 360 Reality Audio is the epic sound revolution you didn’t know you needed

After Sony’s utterly bizarre press conference, I almost missed what was perhaps the most impactful sonic experience at the show. Luckily, I went back to Sony’s booth on the last day of the show, only to have my mind blown.

AT&T jumps the gun with deliberately misleading 5GE launch

As excitement about 5G networks continues to build, AT&T jumps the gun with a ridiculous and deliberate attempt to deceive the public with 5G Evolution – a speed bump that’s based on improvements to 4G tech.

Netflix’s latest price increase heralds the end of streaming’s golden age

Netflix’s recent price rise is just the latest in a string of signs that streaming’s golden age is nearly over. As more services enter the fray, content will be further partitioned, signaling the end of streaming’s good old days.

Netflix’s rate hike is a good thing. Wait, wait, hear us out

Upset at Netflix for raising its rates? We don't blame you. Nobody likes to pay more for anything -- even if they love that thing. But you really should be thanking the streaming entertainment giant. The hike in prices is a necessary and…

Bezel-less phones are terrible for typing on, and it’s only going to get worse

Bezel-less smartphone screens look great, and foldable smartphones are an exciting part of the mobile future; but we don't like where the typing experience is heading because of these two trends.

Blizzard's dismal updates to 'Diablo 3' make 'Path of Exile' the better option

'Diablo 3' season 16, the 'Season of Grandeur,' is live. It attempts to shake up the stale meta-game with a minor tweak, but it falls far short of what fans of the franchise want. Better games like 'Path of Exile' are eating Blizzard's…

A wearable may save your life, thanks to A.I. and big data. Here’s how

Wearables are morphing from devices that send you smartphone notifications and track your fitness into gadgets that can monitor your health -- and maybe even save your life.

'Wargroove' is a delightful tactics game that lets you recruit cute armored pups

Wargroove is a fantastical Advance Wars successor with beautiful pixelated visuals and rewarding grid-based combat. In addition to a meaty campaign, Wargroove has an intuitive map editor that lets you create robust campaigns of your own.
Smart Home

Will everything from lamps to fridges be spying on me? Yes, and I’m creeped out

With the debut of Panasonic’s HomeHawk lamp with built-in video camera, should we be concerned that everything -- from couches to dishwashers -- could soon be spying on us? Here’s why the answer to that question is yes.

Debunking Dark Mode: Here’s why it won’t improve your laptop’s battery life

Dark Mode is known to improve battery life for certain devices, like a smartphone with an OLED screen. Does that apply to laptops, as well? To find out we tested two laptops, one running Windows and one running MacOS.