The Prelator

Weblog of Patrick McKay

Posts Tagged ‘fair use’

Victory! YouTube Reforms Content ID Dispute Process

Posted by darklordofdebate on October 3, 2012

Note: I am posting this on my personal blog since my website, FairUseTube.org, is currently down due to increased traffic and MochaHost’s crappy service. I will post this there too once my site is restored. ~Patrick McKay

Just over one year ago, I began a campaign on my website, FairUseTube.org calling for much needed reforms to YouTube’s process for disputing copyright claims made by its automated Content ID copyright filtering system. Even though it was possible to dispute copyright claims on your videos, the dispute went right back to the party claiming copyright over your video, who then had the choice to either release their claim or simply reinstate it, in which case the uploader had no further recourse. This of course led to entirely predictable massive abuse by unscrupulous parties falsely claiming copyright (and profiting from the ad revenue) on everything from birdsongs to the NASA Mars rover and President Obama’s attempts at karaoke.

Over the past year I have highlighted these kinds of abuses on my website and have been quoted in several media articles on the subject by outlets such as Wired and TorrentFreak. As media awareness of the issue grew, the pressure has steadily increased for YouTube to do something to reform its woefully one-sided copyright dispute process. Today it appears that YouTube has at last bowed to that pressure and enacted at least one major reform that I and other critics have been calling for.

In a blog post this afternoon, YouTube announced a new appeals process for Content ID disputes, which should put an end to copyright claimants acting as judges of their own claims and once again giving users whose videos are blocked or monetized by false Content ID matches recourse to the counter-notice process under the DMCA. The new appeals process is described in greater detail here. As I said in a quote on Ars Technica, at this point I am cautiously optimistic about this new appeals process. If implemented correctly, it will be a huge step forward toward protecting the rights of online video creators against overzealous copyright claims.

However, it should be noted that YouTube’s “improved” appeals process really does little more than restore the Content ID dispute process to the way it used to work when the Content ID system was first created, and the way YouTube claimed as late as April of 2010 that it still worked. That is, when a user disputes a Content ID claim, the copyright claimant must then file a formal DMCA takedown notice (with its attendant legal penalties for misuse) if they insist on taking the video down. However, sometime after YouTube made that blog post, things changed, and YouTube now finally acknowledges that, Prior to today, if a content owner rejected that dispute, the user was left with no recourse for certain types of Content ID claims (e.g., monetize claims).

While I do not know exactly when things changed, I first experienced this myself in August of 2011 and received emails from others who experienced it quite a few months before that, possibly as early as mid-2010. So while I am glad YouTube is now admitting the problem and taking steps to correct it, it is still disappointing that it took them possibly several years (depending on exactly how long this has been going on) to realize it might be a problem to let copyright claimants judge disputes against their own claims.

Moreover, it remains to be seen exactly how accessible this new appeals process really is to the average YouTube user whose videos are flagged for copyright infringement. While the original dispute process (pre-2010) used to go Content ID claim > dispute > DMCA process, it appears this new system goes more like Content ID claim > dispute > reinstated claim > appeal > DMCA process. While this is an improvement over the current Content ID claim > dispute > reinstated claim > no recourse, it still adds yet another layer of complexity to what is already the most convoluted copyright dispute process of any major user-generated content site on the net.

In my own experience, the average user is already bewildered by the current system. Adding an extra layer to the dispute process will only confuse people more.  Why not simply have it the way the dispute process originally worked, where any time a user disputed a Content ID claim the claimant had to make the choice right then between dropping the claim entirely or filing a DMCA notice? Since the copyright claimant will ultimately have to make that choice anyway, why wait until after the copyright claimant has reinstated their claim as before, and then the user has been forced to file another dispute in the new appeals process before finally invoking the DMCA process?

It also remains to be seen exactly what videos will be eligible for the new appeals process. The YouTube help page states:

Uploaders in good copyright standing may be able to appeal up to three disputed Content ID matches that were reviewed and rejected at a time.

Additional eligibility restrictions may apply, including the date of dispute and other factors. Uploaders will also be asked to verify their account if they have not already done so. The eligibility for the appeals process may change over time.

It will be interesting to see exactly what kind of “eligibility restrictions” YouTube imposes on this. It is quite possible that if you have an old Content ID claim on your video that you disputed and it was reinstated, you still might not be able to take advantage of the new appeals process. The reference to users “in good copyright standing” likely means you will be unable to appeal reinstated copyright claims if you have any outstanding DMCA strikes on your account, just as you are unable to upload videos with creative commons licenses, post unlisted videos, or upload videos longer than 15 minutes. I’m also not sure what this “three at a time” language means. Does this mean you can only appeal three reinstated Content ID claims ever, in a year, in a week, in a day, what?

As far as I can tell, the new appeals process hasn’t actually been implemented yet, and it will probably be gradually rolled out over the next few weeks. When it does, I will certainly try it out myself and write a tutorial on it for my existing Guide to YouTube Removals. In the meantime, I’d say online video creators have potentially won an important victory today in the fight to protect our rights against overbearing copyright claims by automated filters, and I look forward to seeing how this plays out in the coming weeks.

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Posted in Copyright, Law, Technology Law | Tagged: , , , , | Leave a Comment »

Book Review: “Reclaiming Fair Use” by Patricia Aufderheide and Peter Jaszi

Posted by darklordofdebate on August 15, 2011

Earlier this summer, I made the winning video for Public Knowledge’s video contest to create a response to YouTube’s “Copyright School” video, which made only a token mention of the crucial exception in copyright law for “fair use” and portrayed fair use as being too complicated for ordinary YouTube users to understand. Public Knowledge challenged the online video community to create a video presenting a more balanced view of fair use, and my video, “Fair Use School: The Rest of the Copyright Story,” ended up winning that contest and even received a bit of news coverage, such as in this TechDirt article.

Soon after my video was announced the winner of Public Knowledge’s contest, I was contacted by Patricia Aufderheide of American University, who is also the director of the Center for Social Media. She graciously offered to send me a copy of the new book she recently coauthored with Peter Jaszi, called Reclaiming Fair Use. I have spent the last few days reading the book while on vacation in Washington state and British Columbia (my family thinks I’m crazy for reading about copyright law on vacation), and enjoyed it immensely.

Overall, I found this book to be an excellent resource on the current state of fair use law in the U.S., complete with succinct analysis of changing judicial views becoming friendlier to fair use, and valuable strategic insights for those involved in the copyright reform movement. The basic thesis of Reclaiming Fair Use is that, far from being a dead letter or uselessly vague concept, fair use today is alive and well; and the more people insist on exercising their rights under fair use, the better they can shape the practices which will ultimately come to define fair use for their communities.

The book starts out with a brief recapitulation of the many flaws of our current copyright system, which should be familiar to most people concerned with this subject. Copyright today lasts longer than ever, is broader than ever, and actually licensing copyrighted content for new uses is more difficult than ever. This has resulted in a significant chilling effect on the creation of new cultural works, as ignorance about fair use rights and fear of copyright lawsuits have kept many from creating as freely as they might otherwise have done.

The authors then give a detailed history of the fair use doctrine, from its origin in the 1800s, through its codification in 1976, up through the present day. Even though fair use went through a brief period of decline in which it was marginalized by a law-and-economics approach to considering whether a new use competed with the market for the original, judges have more recently recognized “transformativeness” as the key element of fair use analysis. If copyrighted content is put to a new use that adds new meaning, message, or purpose rather than merely superseding the original, courts today are much more likely to find fair use, even if the new use could conceivably compete with some market for licensing the original material.

While I found the history of the fair use doctrine and current judicial interpretation enlightening (I did not previously know that courts now consider transformativeness to be more important than economic impact), the part of the book I found most fascinating was its insights on the strategy of the broader copyright reform movement. The authors argue that copyright reform advocates were far too quick to concede that fair use is too vague and nebulous a concept to be of any real use to those wishing to put copyrighted content to new and transformative uses. Instead, scholars like Lawrence Lessig and others began advocating either for radical changes to the copyright system that are unlikely to ever happen, or for alternatives to traditional copyright such as Creative Commons.

Aufderheide and Jaszi argue that it was a mistake to concede so much ground to content owners, such that many copyright reformers had effectively given up on fair use. As Peter Jenkins once wrote in response to the quick dismissal of fair use by copyright reform advocates, “with friends like these, who needs enemies?” Rather than giving up on fair use and allowing it to atrophy, we should rather be aggressive in asserting our rights to make fair use of copyrighted content.

Fair use was deliberately designed to be a flexible concept, very much tied to contemporary practice and community norms. Aufderheide and Jaszi argue that it is up to fair users themselves—not their lawyers or their gatekeepers—to define for themselves what fair use means for their community. One of the best ways to do this is by developing “codes of best practices,” which set forth standards for what is believed and accepted to be fair use by a given community, be they documentary filmmakers or media studies teachers. The authors then go on to cite a number of encouraging examples of how these codes of best practices have helped empower several creative communities to throw off the shackles of unnecessary licensing and fear of copyright lawsuits and begin making fair use of copyrighted content in ways they previously considered impossible.

Personally, I found the authors’ insights into the strategy of the copyright reform very enlightening, and was encouraged by the work they have been doing promoting codes of best practices in fair use. I too have previously noted how easily many copyright reformists have given up on fair use as having any practical value. One of the most important things I learned through competing in policy debate in high school and college was the concept of “ground” in a debate, where the side that most aggressively seizes ground in the early stages of a debate and successfully holds onto it usually wins.

When viewed in this way, it was indeed a grave tactical error for the copyright reform community to concede fair use early on, as it has only made it much more difficult for us to retake that ground and begin restoring utility to the fair use doctrine. I was glad to read of the many successes the Center for Social Media has had promoting its codes of best practices in several key creative communities. I wholeheartedly agree with the authors that the best way to fight against overly restrictive copyright laws is by boldly asserting our rights under fair use whenever possible.

One thing I disagree with the book on, however, is that I don’t think codes of best practices will always necessarily be the best way to do this. While codes of best practices may work great in professional communities such as documentary filmmakers and media teachers, they are much less useful in creative communities that do not have any well-defined structure or representative organizations. This is particularly true in the amateur online video community. While I admire the Center for Social Media’s effort to create a Code of Best Practices for Fair Use in Online Video, I don’t see how it could ever reach enough people to have a meaningful impact. I run a website called fairusetube.org, in which I provide tutorials on fair use and guides for dealing with copyright issues on YouTube. I get messages from YouTube users facing copyright takedowns several times a week, and do my best to help them by giving general pointers about fair use and the YouTube copyright dispute process (without crossing the line into giving legal advice of course).

From my experience, most YouTube users know virtually nothing about fair use, and even when informed about their right to dispute copyright claims against their videos, they are too terrified of drawing the ire of copyright owners to risk filing a DMCA counter-notice. Add to this the fact that YouTube’s dual systems of copyright enforcement (both the automated Content ID system and the DMCA takedown process) are hopelessly confusing and leaves gaps in which videos can be blocked with truly no recourse, and copyright continues to be a huge obstacle to online video creators, regardless of the existence of a code of best practices (which most online video creators do not even know exists). Ultimately, as I argued in my forthcoming student note (to be published in the fall 2011 Regent Law Review), I think it will take clear legislative protections for noncommercial, transformative works and real penalties for abuse of the DMCA to solve this problem.

And while this criticism goes beyond the book itself, I also don’t think the Center for Social Media’s code goes far enough to cover the majority of what online video creators actually do. It strongly implies that any use of a complete piece of music in a video cannot be transformative, and therefore is unlikely to be fair use. Coming from my perspective as a vidder who has made several highly popular anime music videos, I would disagree with this. Even though my vids use complete copyrighted songs, I (like other AMV creators) deliberately craft my videos so that the music and video are inseparable parts of a new work of art, where both mutually reflect upon the other and add new meaning and message that would not be present with either the music or the video alone. If this isn’t transformative, I don’t know what is. The fact that these songs would be impossible for amateur creators to license any other way should only add to the case for fair use in these situations. Personally, I would love to see a more expansive code of best practices for online video that recognizes things like vidding—even where complete songs are involved—as fair use.

These minor criticisms aside, I found this book a highly informative and insightful read on the current state of fair use law, with lots of valuable suggestions on how to reclaim and expand fair use rights in the face of long and strong copyright restrictions. It is a must-read for anyone interested in issues of copyright reform, and I hope it will lead to more and more people standing up and exercising their rights under fair use as one concrete step we can all take to fight against overly burdensome copyright laws.

 

 

Posted in Copyright, Law, Literature, Technology Law | Tagged: , , , , , , , , , , | Leave a Comment »

Response to Rep. Marsha Blackburn: A True Conservative Tech Policy

Posted by darklordofdebate on February 2, 2011

On January 18, Congresswoman Marsha Blackburn gave a speech purporting to give a conservative view of technology policy. As a strong conservative myself, I was deeply saddened to read this speech, which not only displays a deep lack of understanding about important policy issues facing the tech world, but a misunderstanding of the true tenants of conservatism in favor of the very corporate cronyism which Republicans are all too often accused of.

I have long been saddened by the fact that while I would characterize my overall political views as strongly conservative, on matters of technology, Internet, telecommunications, and intellectual property policy, my views are more in line with those more frequently advocated by liberals (though neither party actually holds to them very well). So I decided to write a response to her speech as a kind of follow up to my post a couple years ago about why conservatives should support net neutrality. It is my aim to show that while Blackburn’s goals are admirable, the tech policy that would hold truest to conservative values is nearly the exact opposite of what she has proposed.

Blackburn starts out her speech:

The casual observer sees Republican and Democrat approaches to tech policy as stylized. Republicans appear to reflexively defend big corporate interests. Democrats appear ready to smother any forward moving technology under reams of regulation. For Conservatives the challenge must be to look beyond platforms and technology to seek out those core Conservative values that are the basis of all our positions.

With this sentiment I would heartily agree. I would also say that Blackburn has accurately identified the weaknesses of both parties in this area. But unfortunately she goes on to commit precisely the same error she acknowledges Republicans are accused of–reflexively defending the interests of large corporations over the true public good.

Next Blackburn identifies the “core conservative values” that she believes a conservative tech policy should be based on:

The degree to which the economy is kept free, to which property rights are protected in the next century, to which free speech is assured; may all be shaped by tech policy. These are THE core conservative values, and we must rise to defend them in the tech policy debates in the coming decades – not to mention the coming Congress.

Another statement with which I would largely agree. Economic freedom, protecting property rights, and assuring free speech–all admirable goals and quite rightly declared to be the core principles which a conservative tech policy should aim to defend. Yet the rest of Blackburn’s speech is devoted to arguing that the government should NOT do anything to protect these values (and in fact should do other things which harm them rather than protect them). Before we go on, let us remember an important fact. Government regulation is not ALWAYS a threat to liberty, but if done rightly can in fact serve to protect these very liberties. Nor is government the ONLY threat to them; liberty can be infringed by other powerful interests as well, and corporations (especially the handful of corporations that control our entire Internet infrastructure) can pose just as great a threat to freedom of speech on the Internet as the government can.

Blackburn then sets out three central propositions to her view of tech policy through which her values can be applied:

First, what I call The Creative Economy is the emerging driver of the American economy and should be the focus of tech policy.

Second, intellectual property is the chief commodity of this new economy. For our prosperity to endure, intellectual property rights must be reinforced.

Finally, that the Internet is the primary marketplace for the creative economy. It must be kept free, predictable, and accessible.

Regarding Blackburn’s first and second propositions (which are essentially the same), no one can deny that America’s economy is becoming increasingly based on creative works and information goods rather than industrial products, and that those information goods are protected by intellectual property laws. However, is increasing intellectual property rights really the best way to greater prosperity? At their core, intellectual property laws confer exclusive ownership of information, so that no one else is allowed to use it, thus creating artificial scarcity and theoretically imparting value. In an age when freedom of information is the source of such great innovation, do we really want to pass even more restrictive laws that concentrate ownership of that information in the hands of a few large companies, whose idea of innovation is to sit on that information and sue those who attempt to actually use it (i.e. patent trolls)?

Blackburn says:

Culturally, we all differentiate between material and intellectual property rights. For the Creative Economy to thrive, we need to dissolve the barrier and ensure intellectual property rights are as strictly enforced as material rights.

This is where Blackburn is dead wrong. Has it occurred to her that there might be a good reason for this differentiation? In her very next sentence, Blackburn claims that “our founders, in Article 1, Section 8, Clause 8 [of the Constitution] explicitly established an intellectual property right to be treated with the same reverence as the material property protected by the 5th Amendment.” Yet those same founders in that same clause of the Constitution also mandated that copyrights and patents be granted only for “limited times,” while rights in physical property are perpetual. So it seems the revered Founders themselves drew a distinction between physical and intellectual property. And rightly so, for the Founding Fathers (particularly Jefferson) recognized that in order for a culture to grow, each successive generation must be free to build upon the ideas and accomplishments of the one before it.

There is very little in either art or science that is completely original. Rather art is constantly borrowing from and adapting prior art, and every new invention improves upon those previously developed. The Founders recognized that to grant complete and perpetual ownership of ideas to those of one generation to keep locked up forever leads to cultural stagnation. And so they mandated that after a certain period, copyrights and patents expire, and the ideas they protect fall into the public domain where they are free to be used by anyone.

While I agree with Blackburn that intellectual property rights should be protected, they should not be protected so strongly that no one else can ever use the ideas they protect, to the detriment of follow-on creativity and innovation. To do any less threatens the very value of assuring free speech which Blackburn cited earlier; for in the world of the Internet, intellectual property rights are headed towards a full-on collision with freedom of speech and the 1st Amendment. Blackburn however, seems not to have considered this, for later on she advocates a “war on intellectual property infringement” which she likens to the War on Terror.

Here are just a few of the ways she advocates increasing IP protections:

  • Patent reform “with strict deterrents to infringement.” Never mind the REAL problems in the patent system, such as out-of -control software patents and patent trolls tying up every attempt at genuine innovation in endless lawsuits. Never mind the fact that nearly everyone in the software industry now considers patents a greater hindrance to innovation than help. No, obviously the current system isn’t protecting patents enough, so patent laws need to be made even stricter.
  • Compromise on Orphan Works legislation, which would not even be necessary if Congress hadn’t extended the copyright term to well over 100 years, such that works remain copyrighted long after their creators are dead and no one even cares about them anymore. Why not deal with the root of the problem and decrease the scope of copyright and the length of copyright terms instead, reinvigorating the public domain in the process?
  • Passage of “Rogue Website” legislation (the COICA bill), which would allow the Justice Department to yank website’s domain names and order ISPs to block websites that  have never been proven to violate any laws, with virtually no accountability; placing an unconstitutional prior restraint on online free speech and wreaking havoc with the domain name look-up system. Oh and it wouldn’t even actually work, since the measures the bill proposes are laughably easy to circumvent.

Can’t a conservative view of intellectual property rights be a little more sensible? And what about protecting the fair use rights of Internet users to make noncommercial, transformative use of their culture? What about IP policies which actually promote the grown of culture and science rather than prop up the dying business models of a few monolithic corporations, while at the same time giving the government virtually unlimited power to censor online speech in the name of “protecting intellectual property rights”? Since when was that conservative?

Finally, Blackburn attacks the FCC’s recent net neutrality rules, which she claims only address a hypothetical problem and will serve only to bog down future innovation in bureaucratic red tape. She states that:

The FCC’s actions are also narrow minded – reinterpreting online commerce as online communication in order to assert jurisdiction. They regulate what is perhaps the most incidental aspect of any creative economy – the means of transmission.

Apparently Blackburn adheres to the regular Republican line that because Internet Service Providers own the “pipes” of the Internet (its physical infrastructure of transmission), they should be free to do whatever they want with the content that flows over it. Yet ironically, she argues earlier that we should cease focusing on the devices with which online content is accessed, but rather focus on fostering the creative content the Internet carries. You cannot have it both ways. ISPs freely admit they want to be able to charge not only their own customers for Internet access, but also charge major websites for the “privilege” of transmitting content to their users. At the same time, they want to be able to work out deals for “paid prioritization,” so that, for example, Netflix can pay Verizon to make it’s streaming video load faster than Amazon’s video on demand service. And they would like nothing better than to “cable-ize” the Internet, so that consumers are forced to buy Internet service in packages of websites rather than an amount of bandwidth that they can use to access the online content of their choice. Such an ecosystem is not conducive to the grown of online content!

Earlier in her speech, Blackburn talks about protecting garage-bound entrepreneurs against having to navigate a maze of bureaucratic alphabet soup when starting up an innovative online service. What about the bureaucratic nightmare the next Google or YouTube would face if, in addition to having to pay their own ISP for Internet access, they also had to negotiate deals with every local ISP in the country just to be able to reach viewers at the other end? This is what the FCC’s rules were designed to prevent, and it’s exactly what we’ll get if Blackburn has her way and Congress kills any hope of the government being able to mandate basic rules for net neutrality (which rather than being the bureaucratic nightmare Blackburn describes, are simply enforcing the status quo condition that all websites should be treated equal by local ISPs). This is not “regulating the internet in extraordinary ways, in a manner we have not applied to other markets,” as Blackburn says. Rather it is simply laying down basic rules of the road akin to those for any other common carrier, that all comers must be treated alike on a level playing field.

So what should a true conservative tech policy look like? Here are my suggestions:

  1. Keep the online economy free by passing strong net neutrality rules which preserve the Internet as an open platform for innovation, on which all web services compete on an equal playing field. Allow success on the Internet to be determined by that grand old conservative principle of competition in a free market, rather than which online services can strike the most favorable preferential deals with ISPs.
  2. Promote the growth of the creative economy by lessening the scope of intellectual property laws, ensuring that everyone is free to innovate and create new information goods without the constant threat of a lawsuit for copyright or patent infringement. Take steps to prevent patent trolls for abusing the patent system by forcing true innovators to defend every invention in court against bogus and overboard patent claims by companies which don’t even produce anything of value, but only sue those who do. And craft policies which respect the rights of EVERYONE to create content online (including ordinary Internet users on user-generated content sites), rather than presuming that only the rights of large media companies are worth protecting.
  3. Ensure online freedom of speech by ending attempts to censor speech in the name of protecting obsolete business models, but instead protect the rights of Internet users to remix and interact with their culture. Lessen the restrictions of copyright to make culture accessible to everyone, not just a few large media companies. These companies should still have the right to profit from their creative works, but they should be encouraged to do so in ways that reflect the reality of the digital world, rather than relying on futile attempts to use IP law to prop up dying business models. Not every “infringement” is evil, and if copyright owners would be willing to innovate and think outside the box, they may find it is perfectly possible to make money from creative content even while being less restrictive about the use of their property. Property rights are only as good as the use they are put to, and if property rights are to be respected, we must have a system of intellectual property that actually works and that people are willing to abide by.

Finally, remember that, while conservatives have always feared government power, the real danger comes from centralized power in any form, whether in government or in corporations which have every bit as much influence over our lives as the government. Instead of reflexively opposing government regulation and defending corporations at all costs, a true conservative tech policy must recognize the threats both government and corporate actions pose to our liberty. And in true conservative fashion, we should employ the tried and true system of checks and balances to protect our liberties by playing each of them against the other. Therefore let corporations restrain the government (as corporations already have tremendous political influence), and let the government restrain corporations.

Posted in Copyright, Law, Politics, Technology Law | Tagged: , , , , , , , , , , , , , , | 5 Comments »

New Copyright Rules Allow DRM Circumvention for Remix Videos

Posted by darklordofdebate on July 26, 2010

Well this is some of the best news I have heard in a long time! As described in this press release by the Electronic Frontier Foundation, the Librarian of Congress just issued his new list of approved exceptions to the anti-circumvention provision of the Digital Millennium Copyright Act (DMCA), which prohibits circumventing any type of digital copy protection even if the intended use is otherwise authorized by copyright law. The statute directs the office of the Librarian of Congress to conduct a review of this provision every three years and authorizes it to make new exceptions to it as it sees fit. The new exceptions just announced today go much further than previous ones, and include broad exceptions for jailbreaking smart phones (a direct slap in the face to Apple), enabling read-aloud features on e-books, security research on copy protection mechanisms in video games, and the right to circumvent CSS copy protection on DVDs in order to use short clips from motion pictures to create new, transformative works for purposes of commentary or criticism.

While most news sites and blogs will no doubt focus on the ability to jailbreak iPhones and iPads (which really won’t have that large an impact since that doesn’t prevent Apple from trying to stop you or invalidating your warranty if you do it), I would like to focus on the exemption for DVD decrypting. The exact wording of this exception is as follows:

(1)  Motion pictures on DVDs that are lawfully made and acquired and that are protected by the Content Scrambling System when circumvention is accomplished solely in order to accomplish the incorporation of short portions of motion pictures into new works for the purpose of criticism or comment, and where the person engaging in circumvention believes and has reasonable grounds for believing that circumvention is necessary to fulfill the purpose of the use in the following instances:

(i) Educational uses by college and university professors and by college and university film and media studies students;

(ii) Documentary filmmaking;

(iii) Noncommercial videos

The educational exception is only slightly expanded beyond what it previously covered, and the Librarian draws at least what in my mind is an utterly arbitrary and baseless distinction between university students and professors and students and teachers at the K-12 level. The Librarian gives absolutely no explanation for why students and teachers in a university setting deserve the ability to use high quality footage ripped from DVD, while elementary and high school students do not.  All the ruling says is, “proponents for educators failed to demonstrate that high quality resolution film clips are necessary for K12 teachers and students, or for college and university students other than film and media studies students.” The documentary exception, while important, is also of only limited utility since it applies to a very small class of people–documentary film makers.

The most important of these categories is the third, which encompasses most forms of non-commercial “remixing” of movies and TV shows that have become popular on user-generated video sites like YouTube. This exception allows anyone wanting to incorporate brief clips of movies and TV shows in a non-commercial (meaning not for profit) video such as an anime music video or film mashup, is now free to use a program such as DVD Decrypter to rip DVDs to their computer so they can use the footage in their video. Before the passage of this rule, even if the actual use of the footage in a video was fair use, an amateur video creator could still have faced potential liability for breaking the copy protection on the DVD in order to make their video.

In issuing this new exception, the Library of Congress finally recognized what the EFF and others have been saying for years:

What the record does demonstrate is that college and university educators,
college and university film and media studies students, documentary filmmakers,
and creators of noncommercial videos frequently make and use short film clips
from motion pictures to engage in criticism or commentary about those motion
pictures, and that in many cases it is necessary to be able to make and
incorporate high quality film clips in order effectively to engage in such
criticism or commentary. In such cases, it will be difficult or impossible to
engage in the noninfringing use without circumventing CSS in order to make
high quality copies of short portions of the motion pictures.

While that quote seems clear enough, the ruling does include some caveats which muddy the waters somewhat. In order to qualify for the exception, three conditions must be met:

  1. The final video must use only short clips from the original motion picture, for purposes that already qualify as fair use such as commentary or criticism.
  2. The clips must be incorporated into a new work. In other words, the use must qualify as transformative under the existing fair use criteria.
  3. “The person engaging in the circumvention must reasonably believe that the circumvention is necessary in order to fulfill the purpose of the use.”

The first two conditions are pretty straight forward and both tie in to the existing criteria for fair use, which favor uses that take only a small portion of the original use and use it in a transformative manner. Simply taking unedited clips of movies and TV shows, even if they are short, and posting them on YouTube doesn’t qualify for the exception. However, the third condition is rather vague, since it remains unclear under what circumstances a person may reasonably believe circumvention is necessary. The ruling appears to make it an issue of video quality:

Because alternatives to circumvention such as video capture may
suffice in many, and perhaps the vast majority of situations, users must make a
reasonable determination that heightened quality is necessary to achieve the
desired goal. The justification for designating this class of works is that some
criticism and/or commentary requires the use of high quality portions of motion
pictures in order to adequately present the speechrelated purpose of the use.
Where alternatives to circumvention can be used to achieve the noninfringing
purpose, such noncircumventing alternatives should be used.

Thus the idea seems to be that if another means of obtaining the desired footage (albeit in a lower quality) would suffice, you should do that, and breaking copy protection is only allowed when the use requires a higher quality than could be obtained through those other means. How exactly a court would decide when exactly that is, I have no idea. At least in my opinion as someone who makes these kinds of remix videos, I can’t imagine a situation where I would be satisfied with methods like screen capturing (which the Librarian cites as an example) or cam-cording a TV screen (the MPAA’s suggestion). Both of those methods produce horrible quality video far inferior to that which can be obtained by simply ripping the DVD to your hard drive and transcoding it to an easily edited AVI file. To require video creators on YouTube to use those kinds of methods instead of ripping would forever relegate them vastly inferior quality. Hopefully if the issue ever came up the courts would be satisfied by the video creator’s subjective judgment that the quality obtained by ripping the DVD was preferable to the alternatives.

Another thing I have questions about is the scope of the rule. While the rule specifically mentions CSS protection on DVDs and appears on its face to be restricted to that, I wonder if courts might construe it to apply to other similar types of copy protection, such as the AACS copy protection used on Blu Ray discs or the copy protection used on digital movie downloads from iTunes or Amazon. Since HD video is rapidly increasing in popularity both in general and in user-generated content on sites like YouTube, it makes little sense to restrict this exception to one particular type of copy protection used only on lower quality standard definition recordings, when the principle behind the rule clearly applies to all types of video copy protection. It is also disappointing that the Librarian restricts the ruling to only apply to motion pictures, and specifically excludes other audio-visual works such as video games, even though in reality footage from video games is used in remix videos almost as often as films (my own Final Fantasy music videos, for example).

Despite these limitations which make the new rule not as good as it could have been, it’s an important first step in recognizing the fair use rights of internet users to make non-commercial remixes of popular video content. Remixing is a growing art form that is an important part of the new participatory media culture that is thriving online, and it’s nice to see the government finally starting to recognize the legitimacy of that culture by protecting the right to rip DVD footage to produce these types of transformative works.

Now in honor of the new rules, I think I will add a tutorial on how to rip DVD footage and import it into video editing programs to my website, FairUseTube.org!

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How to Dispute YouTube Copyright Notices

Posted by darklordofdebate on March 12, 2010

How to Dispute YouTube Copyright Notices

This is a video I made yesterday describing how to dispute copyright claims on YouTube and have videos restored that are blocked by YouTube’s automated Content ID system.

This marks the official launch of my new website: FairUseTube.org which is dedicated to promoting awareness of fair use rights under copyright law on YouTube and similar user-generated content sites. Check it out!

Posted in Copyright, Law, Technology, Technology Law | Tagged: , , , , , , , , , | 1 Comment »

Universal Music Takes Down “The Day ObamaCare Died”

Posted by darklordofdebate on February 14, 2010

The latest casualty of unjustified DMCA takedowns on YouTube appears to be the recent viral video hit “The Day ObamaCare Died,” which hit the web in October 2009 and was especially popular soon after Scott Brown’s stunning victory in Massachusetts last month. The video was originally created by YouTube user HerBunk, and featured a parody of the song “American Pie” (originally by Don McLean) sung by Obama sound-alike Paul Shanklin. The animated video was an instant online sensation, especially among conservative and Republican bloggers, for its humorous portrayal of President Obama lamenting the defeat of his monstrous health-care bill. Now that video is no more.

HerBunk posted the following video statement on YouTube on January 25:

I made “The Day ObamaCare Died” and I uploaded it in October 2009. I put in about 30 hours of work in making the video. My copyright for the use of the song was challenged almost immediately by Universal Music Group (WMG). I beat that challenge because I had received Paul Shanklin’s permission for the use of his song. UMG owns the rights to the Don Mclean song “American Pie” also known as “The Day the Music Died” and persisted in their objections to my video on YouTube. In Dec 2009, when it had almost 700,000 hits, YouTube folded and told me that despite the fact that I wasn’t infringing on UMG’s copyright they had a contractual agreement with UMG and told me to remove the video or they would close my account permanently for failing to comply with YouTube’s “terms of service.” I removed the video. Even though ObamaCare may really be dead, I apologize for not being able to sustain the protest against it.

When I commented on this posting asking if he had filed a DMCA counter-notice, he replied:

There is no copyright case against me. I filed a counter-claim and proved that I have permission to use the song. UMG doesn’t want it on YouTube. I was told by YouTube that due to their contractual agreement with UMG they have to honor UMG’s request. If I attempt to upload the video again on YouTube my account will be terminated for violating YouTube’s terms of use. The video is still alive elsewhere on the internet.

If this is the case, this is a sad state of affairs indeed. If his statement is accurate, it seems both YouTube and Universal acknowledge that Universal has no copyright claim against the video. This is certainly true as this video is a prime example of precisely the type of speech the Fair Use Doctrine of U.S. copyright law was designed to protect–a politically motivated parody that is transformative and non-commercial in nature and in no way competes with the market for the original song, yet because of its controversial subject matter it would be highly unlikely to ever secure the copyright holder’s authorization.

What’s troubling here is that Universal and YouTube appear to know that, yet Universal insisted on censoring the video anyway, and YouTube was forced to play along because it doesn’t want to alienate Universal. While YouTube does have a contract with Universal allowing UMG’s songs to be used in YouTube videos, I highly doubt that contract requires them to censor any video Universal doesn’t like even where Universal has no legitimate copyright claim against it. This is a simple case of two large companies teaming up to abuse copyright law in censoring legitimate political speech.

Anyone who values the right to free speech that we enjoy in this country should be outraged by this move, and personally I hope that the Electronic Frontier Foundation may take notice of this incident and file a lawsuit to stop this outrageous behavior.

In the meantime, I found a copy of the video on another video site and have re-uploaded it to YouTube under my own account. Maybe I will have better luck keeping it online than the original creator. You can view the video below. Please pass the word about this video and let Universal and YouTube know that they cannot get away with abusing copyright law to censor non-infringing political speech.

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Square Enix Abuses YouTube DMCA Takedown Process

Posted by darklordofdebate on October 7, 2009

A few months ago I wrote a post on why anime music videos (AMVs) would likely be considered fair use under US copyright law. Well it wasn’t long before I was given the chance to test that theory.

This past Sunday I uploaded a new anime music video I made using footage from Final Fantasy VII: Advent Children Complete and Final Fantasy VII: Crisis Core, set to Breaking Benjamin’s awesome new song “Anthem of the Angels.” (You can currently see the video hosted on Facebook Video here.) Because Advent Children Complete was released in glorious high definition, I uploaded the video in full HD to YouTube, which I think may have been the reason the video immediately triggered YouTube’s copyright filters, which blocked it because of a copyright claim by Square Enix Co., Ltd., the Japanese video game company that makes the Final Fantasy series.  Just as I have done each time one of my videos has been blocked by the YouTube Content ID system in the past because of the whole Warner Music debacle, I immediately disputed the copyright claim with the following statement:

The use of video footage in this video is fair use because it is (1) highly transformative, significantly altering both the content and message of the original; (2) noncommercial in nature; and (3) only uses a small fraction of the original.

I could also have added that the video could have no possible negative effect on the market for the original works, which is the fourth reason that the use of anime video content in AMVs is very likely fair use. Anyway, I thought that this would be the end of it. My video was restored and I verified that it was playable. However, barely five minutes later I got a notification from YouTube saying the video was blocked again, this time because of an actual DMCA takedown notice from Square Enix.

Because I am fairly confident my use of Final Fantasy footage in an AMV was fair use, I decided to go ahead and submit a formal DMCA counter-notification, which I generated with the handy counter-notification generator at ChillingEffects.org. By law, DMCA counter-notifications must contain the following five elements, as nicely summarized by YouTube:

  1. Identify the specific URLs of material that YouTube has removed or to which YouTube has disabled access.
  2. Provide your full name, address, telephone number, and email address, and the username of your YouTube account.
  3. Provide a statement that you consent to the jurisdiction of Federal District Court for the judicial district in which your address is located (or San Francisco County, California if your address is outside of the United States), and that you will accept service of process from the person who provided notification under subsection (c)(1)(C) or an agent of such person.
  4. Include the following statement: “I swear, under penalty of perjury, that I have a good faith belief that the material was removed or disabled as a result of a mistake or misidentification of the material to be removed or disabled.”
  5. Sign the notice. If you are providing notice by e-mail, a scanned physical signature or a valid electronic signature will be accepted.

As you can tell from the wording above, this is pretty serious stuff, as it could potentially open me up to a lawsuit, though that is incredibly unlikely, given that, according to the Electronic Frontier Foundation, no individual YouTube user has ever been sued over a remix video, and Square Enix would have to be incredibly stupid to bring the bad publicity on themselves of suing a fan for making a Final Fantasy tribute video on the eve of the release of Final Fantasy XIII in December. (Yes, that’s Final Fantasy thirteen – you can see how popular this series is.)

So, I submitted a counter-notification to copyright@youtube.com around 11pm EDT Sunday, and almost exactly 48 hours later at 11pm on Tuesday, I received the following message from YouTube:

Dear Patrick,

Thank you for your counter-notification. It has been forwarded to the party that sent the takedown notification. If we receive no response, your material will be restored between 10 and 14 business days from today.

Sincerely,

The YouTube Team

What this means in short is that Square Enix has 14 days to file a lawsuit against me, and if they don’t YouTube will restore my video. The ball is now in Square Enix’s court, so we’ll see what happens with that.

Analysis

1. Bad move for Square Enix

Now there are several things that are interesting about this situation. The first is that Sqaure Enix would go after YouTube videos at all, which is an incredibly stupid business decision. The Final Fantasy series is not only the best selling anime video game franchise in history, but THE most popular source for AMVs, with a search for ” ‘final fantasy’ amv” resulting in 122,000 hits on YouTube. Over 8,000 Final Fantasy AMVs are hosted at animemusicvideos.org. Final Fantasy fans love the series, and like true digital natives they like to express that love by making tribute videos–taking clips from the various Final Fantasy games and movies and setting them to their favorite songs. Many people then watch these videos and discover Final Fantasy for the first time, then go out and buy the games. Thus, AMVs serve as free advertising for the series, bringing in new fans and new sales for Square Enix.

While I don’t necessarily think Square Enix intended to go after AMVs by opting into the YouTube filtering system (I think they’re probably trying to catch people uploading FFXIII trailers or full scenes of Advent Children Complete), they must have known that YouTube’s filter’s would catch AMVs as well. A quick glance at AMV.org’s forums revealed I am not the only person who has had FF AMVs blocked, and some people have had their accounts deleted because of it. Taking advantage of YouTube’s filters therefore amounts to a declaration of war on Square Enix’s most loyal fans–the ones who love Final Fantasy so much that they take the time to make music videos in honor of it. This is a new low for Square Enix, which is already notoriously overprotective of its intellectual property. What’s more, it runs against the entire anime culture on which the FF series depends for its popularity in the first place. If they continue to block AMVs in this manner, they risk alienating their fan base, and that is a stupid business decision no matter what way you look at it.

2. DMCA Abuse

The second interesting thing about this situation is the manner in which it occurred, leading me to think there is a strong legal argument that Square Enix is abusing the DMCA takedown process by making bad-faith copyright claims. Specifically the timing of the notices and the fact that the DMCA takedown notice came less than five minutes after I disputed the initial automated filter identification.

One of the things the DMCA requires copyright owners to include in a takedown notice is, “A statement that the complaining party has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law.”17 U.S.C. § 512(c)(3)(A)(v).

A federal district court in California recently held in Lenz v. Universal that this provision of the DMCA “requires copyright owners to make an initial review of the potentially infringing material prior to sending a takedown notice” and that this requires the copyright holder “to form a subjective good faith belief that the ‘particular use is not a fair use’ before sending the takedown notice.

Now, the timing in this situation is suspicious, because my video was re-blocked by a takedown notice only five minutes after it was unblocked when I disputed the automatic filter. This leads me to believe that the takedown notice was sent by some sort of automated system which automatically responded to my dispute of the filter by sending a formal takedown notice. That is unless Square Enix had lawyers working at their American headquarters in California at 6:20 pm PDT on a Sunday evening capable of firing off takedown notices less than five minutes after being notified of a dispute. (I’m assume the takedown notice did not come from their main headquarters in Japan). This means that the takedown notice was likely sent by a computer with no human intervention, and unless I’m seriously mistaken as to some legal precedent I haven’t heard of, a computer cannot formulate a good faith belief about anything, let alone whether a use qualifies as fair use or not.

It would thus appear Square Enix did not fulfill their legal duties to make an initial review of potentially infringing material and to form a good faith belief that it was not fair use. So if this ever did come to a lawsuit, they would be wide open to a counterclaim of sending a false takedown notice in bad faith and abusing the DMCA takedown process. Like I said, interesting…

UPDATE 10/27/09: VICTORY!!!

Last Friday night, October 23, I received the following message from YouTube:

Hi there,

In accordance with the Digital Millennium Copyright Act, we’ve completed processing your counter-notification regarding your video:

http://www.youtube.com/watch?v=u4Qs-YPVdRM

This content has been restored and your account will not be penalized.

Sincerely,

The YouTube Team

My video is now back up and running. Now if only other AMV makers whose videos were falsely blocked by Square Enix would fight back as I did.

Posted in Copyright, Law, Technology Law | Tagged: , , , , , , , , , , | 9 Comments »

Are Anime Music Videos Fair Use?

Posted by darklordofdebate on June 19, 2009

Anyone who knows me probably knows I like studying issues related to copyright law–a fascination driven by the fact that as a child of the Net Generation, I have grown up immersed in what Lawrence Lessig calls the “read-write” culture fostered by digital technology, where virtually any action I take online raises potential copyright implications.

Nowhere is this true than the hobby I have had since high school of creating “anime music videos” or AMVs (music videos setting footage from anime shows and video games to popular songs) and posting them on websites such as YouTube and animemusicvideos.org. And it’s not just me; there are tens of thousands of these videos posted online and they have taken on a life of their own as an art form in their own right, with a whole subculture of AMV editors with contests, awards, and websites dedicated to them.

Yet despite their popularity, I am astonished at the lack of articles analyzing where these videos stand in relation to copyright law. Most articles I have been able to find on the subject simply assume they are copyright infringement, in which case American copyright laws have essentially rendered this entire art form presumptively illegal. However, I am not convinced of this, and I think a solid case could be made that AMVs fall firmly under the doctrine of “fair use” in US copyright law. After my own experiences with copyright run-ins related to my AMVs (and subsequent victories), I thought I’d post a brief analysis of why I think there’s a good case to be made for AMVs as fair use.

As audio/visual works, there are two separate components of AMVs that raise potential copyright concerns and must be analyzed separately to determine if they constitute fair use–namely the video and audio tracks.

Video Track

AMVs typically take ripped footage from anime movies, TV shows, and video games and re-edit them using brief clips no more than a couple seconds in length each set to music, telling a new story by juxtaposing video clips with the beat and lyrics of the song that emphasize different aspects of the original plot. Because this heavy re-editing is so obviously transformative, there is a very strong case to be made that the video portion of AMVs constitutes fair use. Running down the four criteria for fair use in US copyright law, we get the following:

1. The Purpose and Character of the Use

a. Non-commercial — Non-commercial works are much more likely to be fair use than commercial works for profit. Anime music videos are purely non-commercial works created for fun and entertainment and not personal or financial gain.

b. Transformative — The more a work changes and adds to the original rather than merely copying it verbatim, the more likely the use is fair. The standard for determining whether something is “transformative” rather than merely “derivative” is whether it “merely supersedes the objects of the original creation or whether and to what extent it is ‘transformative,’ altering the original with new expression, meaning, or message.” (Campbell v. Acuff-Rose Music). At least in regards to the video track, AMVs so heavily modify the original source footage by clipping, reordering, and overlaying special effects as to make it an entirely new creation. While the use is certainly “derivative,” re-editing plus the new meaning imparted by the particular scenes selected and the music makes AMVs highly transformative, weighing significantly in favor of them being fair use.

2. Nature of the Copyrighted Work

Under copyright law, published materials are more likely to allow fair use than non-published works, and factual works are more likely than artistic works. In this case, the original copyrighted material (anime footage) is published (counting in favor of fair use) artistic work (counting against fair use). However, this factor is the least significant of the four, and can be outweighed by the other three.

3. The amount and substantiality of the portion used in relation to the copyrighted work as a whole

Generally, the less of a copyrighted work that is used in relation to the whole the more likely it is to be fair use. In the case of AMVs, only 3-5 minutes of footage are typically used, consisting of 1 or 2 second clips, often out of hours of available source footage. While these clips may often contain the “heart” of the original work (the most significant scenes of the original anime), the minuscule amount of footage used combined with the brief duration of clips weigh significantly in favor of fair use.

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

This is often the most important prong of the fair use test, and together with the first prong is the one most strongly in favor of AMVs as fair use. In the case of non-commercial works, the burden of proof is on the copyright owner to prove harm to the market or value of the work (Sony Corp. v. Universal City Studios). In the case of AMVs, the small amount of footage used, the reordering of brief clips, and the absence of the original audio track makes it almost impossible for an AMV to be a substitute for the original work (i.e. nobody would watch the AMV instead of the original work). There is also no market for licensing anime clips for use in amateur music videos. Thus AMVs would be highly unlikely to have a negative impact on the market for the original work. In fact, they are more likely to have a positive impact on sales of the original, as they would increase interest in the original work and drive increased sales, effectively acting as a free promotion for the source anime. This factor also weighs heavily in favor of fair use.

Conclusion:

Because the video track of AMVs is non-commercial, highly transformative, uses only a small portion of the original, and has no negative impact on the market for the original, there is a very strong case that the video portion of AMVs constitutes fair use.

Two notes, however. First, in cases where an AMV creator  had to break the copy protection on a DVD to obtain the source footage, that would be illegal as they violated the anti-circumvention provision of the DMCA, which prohibits any circumvention of copy protection regardless of whether or not the use is fair. Second, because AMV creators are usually their most avid fans and they wish to avoid upsetting them, anime creators are highly unlikely to ever mount legal challenges against AMVs. Thus the video portion of an AMV will likely never be the subject of copyright action. The most likely threat comes from the owners of the copyright for the audio track, to which I now turn.

Audio Track

Since AMVs typically use popular songs by high profile artists signed under major record labels (an overall much more litigation-happy bunch than anime creators), it is because of the audio track that AMV creators are most likely to experience copyright problems. Wind-up Records (the label for Evanesence, Seether, and Creed) has already issued take down notices barring AMVs using their songs from animemusicvideos.org, and as I mentioned in my last post, I myself have run up against Warner Music’s YouTube embargo with my own AMVs. Unfortunately, the audio portion of AMVs also has the weakest case for fair use, though I believe a good case can still be made that they are indeed fair use.

1. The Purpose and Character of the Use

a. Non-commercial — Once again, AMVs are completely non-commercial works which makes them much more likely to be fair use. While they are often posted on commercial sites such as YouTube, that has no bearing on whether AMVS themselves are fair use or not. Because of this I find it highly ironic that YouTube has attempted to work out licensing agreements with music labels to allow users to use their music in user-generated videos. Under the DMCA safe harbor provision, the responsibility to ensure content is non-infringing is entirely that of the user that uploaded the videos, not YouTube. Thus whether or not sites like YouTube have a licensing agreement with labels such as Warner has no bearing on whether the videos are infringing or not.

b. Transformative — It is much less clear that AMVs are transformative in relation to the music source than the video source. Since they usually use a whole song without editing or altering it, they clearly don’t transform the song in the sense that they make it into something different as with the video track. However, I think there is still a case to be made that AMVs are transformative in relation to the song used in “altering the original with new expression, meaning, or message.” Overlaying the song with poignant video images which are often used to translate the lyrics literally on screen or otherwise highlight certain things about the song clearly adds a new layer of meaning and expression to the song. The video and music are combined to create an entirely new message which is much greater than the sum of its parts. The music reflects on the video and the video reflects on the music, imparting new significance to both. It is thus a qualitative transformation rather than a quantitative one. The viewing experience of watching an AMV is qualitatively different than either watching the anime by itself or listening to the song by itself, and thus AMVs could still be considered transformative and likely fair use.

2. Nature of the Copyrighted Work

As with the video, the source songs in AMVs are published artistic works. The fact that they’re published (assuming you don’t use a pre-release leak or something) is slightly in favor of fair use, while the fact that they’re artistic rather than factual works is slightly against fair use. Overall, this prong isn’t very significant either way.

3. The amount and substantiality of the portion used in relation to the copyrighted work as a whole

This prong is slightly problematic, since an entire copyrighted song is used. This would tend to weigh against fair use. However, some cases where an entire work was copied have nevertheless been held to be fair use, “if the secondary user only copies as much as is necessary for his or her intended use.” In this case it could be argued that the entire song is needed, since the whole point of an AMV is for the song to shape the video and for the video to illustrate the song. Using any less than the entire song would make for an incomplete video and would reduce the power of the video. If the audio in the video is encoded at a significantly lower quality than CD quality audio, you could also argue this point qualitatively, since the song in the video is too low quality to substitute for the original. Nevertheless, this argument is still fairly weak and it would be a better strategy to argue this prong is outweighed by the other prongs.

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

This is where the strongest case for usage of the song being fair use can be made. Once again, in non-commercial cases, the burden of proof is on the copyright holder to demonstrate a negative effect on the market for the original work. There are two possible ways they could show this—the effect on sales of the original song and the impact on a possible market for licensing the song for audiovisual synchronization:

a. Effect on the market for the original song: Copyright holders could argue that AMVs could serve as a substitute for buying the original song if people merely listen to the song on YouTube or rip the audio track from the video and save it to their computer instead of buying the song. While both of these things are certainly possible, it would be difficult for the copyright holder to prove an actual negative impact on sales. Those who are content to merely listen to the song on YouTube would not have been likely to buy the song anyway, while relatively few people possess the technical knowledge to rip the audio from a video and use that in place of buying the song. Those that do would most likely consider the audio rip of inferior quality to purchasing the song (or merely illegally downloading it a different way), and would thus not likely consider it worth the trouble. Both of these factors also most likely would be outweighed by the positive effect the video would have on the market for the original song by giving the artist additional exposure and free promotion, motivating people who otherwise might not have heard the song to buy the artist’s work.

b. Effect on a possible licensing market: In large-scale commercial scenarios, there is an established market for audio visual synchronization rights, where musical artists sell the rights to filmmakers to “synchronize” their music with video footage such as in films or television commercials. However, there is at present no market for licensing tracks to individual hobbyists wanting to create amateur non-commercial music videos for fun. Indeed, if such an individual tried to license a song for an AMV, they would most likely find themselves lost in a maze of legal red tape or simply ignored by music labels who wouldn’t take their request seriously. Even if they did, the labels would most likely insist on charging commercial-scale license fees on the level of several thousand dollars per use—an overwhelmingly cost prohibitive sum for amateur non-commercial use. Because a legitimate market for licensing songs for uses such as AMVs does not currently exist, there is therefore no potential for this use to have a negative effect on such a market. You cannot negatively impact that which does not exist.

Conclusion:

While the case for the use of copyrighted music in the audio track of an AMV is not as clearly fair use as the use of anime footage in the video track, I think a strong case for fair use can be made here as well. The best strategy in this area would be to emphasize the non-commercial transformative nature of the use and the absence of any negative impact on the market for the original song. Indeed, AMVs often have a positive effect on song sales, since many people discover bands through watching AMVs they would not otherwise have heard of and in turn go and buy their music. Music videos can serve as valuable promotion for musical artists—something artists themselves recognize when they create their own music videos to promote their music. The transformative nature of AMVs plus their non-commercial character and absence of harm are thus strong indicators that they constitute fair use.

More resources about anime music videos and fair use:

Posted in Copyright, Law, Technology | Tagged: , , , , , , , , | 8 Comments »