The Prelator

Weblog of Patrick McKay

Posts Tagged ‘youtube’

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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SOPA, Private Copyright Enforcement Systems, and Free Speech

Posted by darklordofdebate on January 19, 2012

Throughout the debate over the Stop Online Piracy Act (SOPA) and the Protect IP Act (PIPA), there has been one refrain commonly invoked by the pro-copyright, anti-internet crowd. “There is no first amendment right to infringe someone’s copyright.” Or “copyright and free speech do not conflict.” Leaving aside the obvious fact that the Supreme Court has repeatedly stated that there IS in fact a first amendment right to make unauthorized use of copyrighted material under the fair use doctrine, the idea that copyright and free speech do not conflict is demonstrably false.

At its heart, copyright law is a censorship mechanism. It is a way to grant one person or entity a monopoly on certain speech and deny all but those declared to be the “owners” of that speech the right to use it for their own expression. We believe this is justified because it provides financial incentives for speech, and indeed it seems reasonable that people should be entitled to benefit from their creative works. But we must always remember that, at its core, copyright is nothing less than the government dictating who may speak and who may not. Given this, there will ALWAYS be some degree of tension between copyright law and freedom of speech–between the Copyright Clause of the Constitution, and the First Amendment. To say that there is no conflict between copyright and free speech is simply wrong.

The conflict between copyright and free speech can be clearly seen when copyright laws are abused and used to censor speech that does not infringe anyone’s copyright. While the pro-copyright lobby may claim otherwise, the truth is such abuses are both common and widespread. In light of bills like SOPA and PIPA which propose dramatically expanding the powers of both the federal government and private copyright owners to enforce copyrights, it is important to keep in mind the ways in which copyright is abused under existing laws, and the potential for even greater abuses should these bills pass.

Now that outright DNS blocking and the horrible “private right of action” provisions have been removed from SOPA and PIPA, one of the most dangerous remaining provisions is the section granting “immunity” to search engines, payment processors, and ad-serving networks who “voluntarily” decide to cut-off services to websites which they decide “facilitate” copyright infringement. As many people have pointed out, this will most likely result in a process similar to the existing DMCA takedown process, whereby service providers who are notified by copyright claimants that a particular site “facilitates” copyright law will immediately move to cut-off service to that site for the sake of avoiding liability, regardless of whether that site actually violates copyright law in any way.

This is exactly how every content hosting service in existence, from Google to YouTube to Facebook to file hosting sites like Megaupload and Rapidshare (the ostensible targets of SOPA) currently respond to takedown notices under the DMCA. But the “voluntary” blacklists created by private companies under SOPA would have none of the safeguards included in the legally mandated DMCA takedown process, such as the opportunity for accused infringers to file counter-notices and get their content restored. Under SOPA, while companies are encouraged to cut-off service to sites which are accused of piracy, they have no corresponding obligation to restore service if the allegation turns out to be false. The result will be the establishment of private copyright enforcement regimes administered by corporations with no accountability, no safeguards against abuse, and no mechanism for appeal.

How do I know this? Because this is exactly what has happened on YouTube, which currently runs the largest private copyright enforcement regime in existence under the guise of its “Content ID” program. As a YouTube video creator who frequently employs fair use in order to make unauthorized use of copyrighted content in YouTube videos, and because of my work advocating for a fairer copyright enforcement system on YouTube through my website, FairUseTube.org, I have been in a position to see just how often such private copyright enforcement systems are abused.

Under YouTube’s Content ID system, every video that is uploaded is automatically scanned against a vast database of copyrighted works contributed by YouTube’s Content ID partners. If either the video or audio content matches the digital fingerprint of a sample in YouTube’s database, the system applies the copyright owner’s preselected policy to either block the video outright, allow it to remain up but track its view statistics, or “monetize the video” by taking a cut of the revenue from ads embedded in the video page. While on the surface this seems like a great way for YouTube to allow users to upload videos which use copyrighted content while allowing copyright owners to still make money from their otherwise unauthorized use, the system has two fatal flaws: (1) Content ID matches are notoriously inaccurate and wide-open to abuse, and (2) there is no effective way to appeal mistaken identifications or even blatantly false and fraudulent claims.

First, once an entity is accepted as a partner in YouTube’s Content ID program,YouTube apparently does not require copyright claimants to submit any proof that they own the copyright to works which they upload as reference files. There have been numerous reported cases of unscrupulous companies submitting works that are either in the public domain or are simply not owned by them into the Content ID database.  This allows them to claim ownership of, block, and/or receive ad revenue from, videos which they do not own any copyright interest in whatsoever. Even when there is a legitimate copyright involved, the Content ID system is often unable to tell a copyrighted work from a non-copyrighted one. This problem is especially severe with regard to recordings of classical music, where the music itself is in the public domain, but specific recordings may be subject to copyright. The Content ID system cannot tell one recording of the same classical song from another, and thus people who have legally used recordings of classical symphonies that were either in the public domain or that they have legally licensed from a third-party music library (and in some cases even performed themselves) have found their videos misidentified as containing a copyrighted recording owned by someone else.

Misidentification or even fraudulent copyright claims would not be so bad if there was a means to appeal such false-positives and punish users who abuse the system. But in fact there is not. While YouTube maintains a nominal mechanism for “disputing” false or mistaken Content ID matches, this dispute system is a joke. This is because the person who gets to decide whether to accept the user’s dispute is none other than the copyright claimant himself.

When a user files a dispute, the Content ID claimant is given three options: (1) release the claim, (2) have the video taken down via a formal DMCA claim, and (3) reinstate the Content ID claim. While the first option removes the false claim entirely and the second invokes the formal DMCA takedown process under the law (allowing the user to send a DMCA counter-notice and get their video restored that way), the third option reinstates the Content ID match, allowing the claimant to either block or receive all the ad revenue from a video, with no further opportunity for the uploader to appeal. Instead, the user is greeted merely with a message that the copyright owner has “confirmed their claim” to the content. If the user attempts to contact YouTube to further appeal a false claim, they are told that their only option at this point is to convince the claimant to retract their claim.

Through this process, YouTube gives copyright claimants the ability to essentially be the judge in their own cases–giving them sole discretion whether or not to accept a dispute against their copyright claim. As experience has shown, Content ID claimants almost universally choose to “reinstate” their claims (likely through an automated process or merely clicking “select all” in the list of disputes). As a result, the Content ID dispute process is next to useless, and those who attempt to dispute a mistaken identification or claim fair use, will most likely find their video re-blocked through Content ID in a matter of days after they file their dispute, with no further recourse or opportunity for appeal.

It is important to note at this point, that everything YouTube has done is perfectly legal under current law. Nothing today prevents companies from establishing their own private systems of copyright enforcement which go far beyond the process prescribed in the DMCA, and which contain none of its safeguards against abuse. In YouTube’s case, Content ID exists alongside the DMCA process, as the DMCA provides an alternate means by which videos can be removed for copyright infringement. But while YouTube originally intended Content ID to serve as a kind of front-end buffer to the DMCA process, allowing users to have recourse to the DMCA counter-notice process in the event a Content ID dispute was rejected, that option no longer exists. Instead, Content ID has almost completely supplanted the DMCA process as the primary means of copyright enforcement on YouTube, and users who have videos permanently blocked by Content ID have no recourse to DMCA counter-notices.

It is under this context that, when last month Universal Music used the Content ID system to have an original commercial by Megaupload taken down without having any legitimate copyright claim against it, Universal could plausibly claim in court that they could use YouTube’s private system to block the video without being subject to any of the penalties for fraudulent copyright claims under the DMCA. It is this system that has allowed unscrupulous companies like GoDigital to illegally hijack ad-revenue from hundreds of original videos using legally licensed royalty-free tracks from third-party music libraries. And it is this system that has allowed others to claim a monopoly on royalty-free music loops and samples provided with popular software such as iMovie and GarageBand, effectively preventing anyone else from using them in YouTube videos. All of these are documented cases of flagrant abuse, with dozens of complaints on YouTube’s help forums that the company has systematically ignored and failed to act upon. (To read more about these specific cases, click here.)

The reason for that is simple. The current law simply provides no incentive for companies like YouTube to protect their users against false and abusive copyright claims. YouTube would much rather placate major copyright holders like Viacom and Universal Music and avoid expensive lawsuits than stand up for users’ rights by forcing copyright claimants to prove a valid copyright interest in videos alleged to be infringing, or in the very least provide an effective means to appeal false copyright claims.

While Google was one of the most vocal parties involved in yesterday’s protest against SOPA, their own system which they have built on YouTube provides a clear example of exactly what we can expect if SOPA passes. When private service providers are deputized to become enforcers of copyright law with no incentive to defend individual users, they will invariably sacrifice the free speech rights of their users for the sake of avoiding expensive lawsuits. YouTube has shown us that nothing good can come of privatizing copyright enforcement, which only serves to harm freedom of speech online.

Imagine how much worse it would be, if instead of specific content being subject to such arbitrary blocking as YouTube currently employs, entire websites could be cut-off from all financial services and revenue sources by the mere accusations of big media companies. What would happen if, instead of individual YouTube videos getting blocked, YouTube itself was de-listed from search engines and denied its life’s blood in ad revenue, with no opportunity for appeal? That is what would happen under SOPA. Let us take warning from YouTube’s own practices, before YouTube itself finds itself in the cross-hairs.

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Falling Through the Cracks in YouTube’s Copyright System

Posted by darklordofdebate on August 23, 2011

Over the last few months, I have become increasingly aware of a fatal flaw in YouTube’s copyright enforcement regime, which frequently leaves non-infringing videos blocked for supposed copyright reasons with literally no recourse for the user and no way to dispute the copyright block.

YouTube’s copyright policies are confusing enough to begin with, as unlike most other video sharing sites, YouTube has not one but TWO overlapping copyright enforcement systems–it’s automated Content ID system, and the regular DMCA takedown regime that all content hosting sites are required to follow by the Digital Millennium Copyright Act.

Videos can be blocked/taken down by either system, and each system has its own process for filing a dispute.  If a video is subject to a DMCA takedown notice (which must meet standards established by law), it shows up in your account as “rejected for copyright infringement,” and there will also be a strike placed against your account, which will cause your account to be terminated upon the third strike. If your video makes fair use of the copyrighted content in question or the claim is false, you can file a DMCA counter-notification (also specified by law), and your video will be restored after a waiting period of approximately three weeks.

If a video is identified by YouTube’s automated, media fingerprinting “Content ID” system as containing content by a copyright owner enrolled in the Content ID program, several things can happen. The video can remain viewable, but “monetized,” meaning adds will show next to it; it can be blocked entirely (either worldwide or in selected countries), or in the case of audio-only matches, the sound can be muted. These videos show up on your “My Videos” page as having “matched third party content.” Because this is all done by computer and no form of DMCA takedown notice has been sent, videos blocked in this manner do not cause a strike to accrue against your account. If you want to dispute a Content ID block, there is an easy dispute form which you can fill out, which in most cases will cause the video to be automatically and immediately restored, though it does send a notice of your dispute to the copyright owner.

Here’s where things get tricky, since the copyright owner then has the opportunity to respond to your dispute. Often they will simply ignore it, and after a few months the “View Copyright Info” page for that video will display a message saying “dispute successful” and the content match will soon disappear entirely. On the other hand, what happens if the copyright owner still believes the material is infringing? According to YouTube, this is what is supposed to happen:

If you feel your video has been misidentified by the Content ID system, you can dispute the identification. This involves filling out a short form listing the reason for your dispute. We then notify the content owner whose reference material was matched. The content owner will then review the match. If the content owner disagrees with your dispute for any reason, they will have the option to submit a copyright takedown notice which will result in the disabling of your video and/or penalties against your account. To avoid penalization, only submit legitimate dispute claims.

In other words, if the copyright claimant does not accept your dispute, they have the option of escalating to a formal DMCA takedown notice, in which case YouTube’s other copyright enforcement system kicks in, the video would be taken down again, and a strike would be issued against your account. The user would then have the right to dispute a second time using a DMCA counter-notice, and have the video restored once again. According to the DMCA, this is where the process ends, since only if the copyright claimant notifies the service provider that they intent to file a lawsuit seeking an injunction against your video can the service provider leave it offline. Otherwise they are supposed to restore it after the waiting period established by law.

This is how the copyright dispute process on YouTube is supposed to work: Content ID match (video blocked) -> Content ID dispute (video restored) -> DMCA notice (video re-blocked) -> DMCA counter-notice ->(video restored unless notice of lawsuit given). This is not how it works practice however.

Sometime in the last couple years, YouTube has quietly started acting in a different way, contrary to their stated policy. Instead of requiring copyright owners to file a formal DMCA notice in response to a Content ID dispute, thus allowing users to invoke the DMCA counter-notice process, YouTube allows copyright owners to somehow “confirm” their copyright claim through the Convent ID system and re-impose whatever blocks were originally in place through Content ID. In this case, a message will appear on the user’s “View Copyright Info” page for that video saying, “All content owners have reviewed your video and confirmed their claims to some or all of its content.” After this, as far as I can tell, there is absolutely no way for the user to file a dispute and get their video restored.

I had been hearing reports about this happening for months. Because of my website, fairusetube.org and the video tutorials I have posted on YouTube regarding fair use and the Content ID dispute process, people have been posting comments and sending me messages about this for a while. But until last week, it had not actually happened to me (at least where the video was blocked in the U.S. where fair use applies). Then last week, I noticed one of my older anime music videos was blocked pretty much everywhere, including the U.S., by Content ID. I filed a dispute as I have many other times, and the video was unblocked for a few days, and then re-blocked with the message above. No further Content ID dispute was possible, because the record of my original dispute was still there. And when I tried filing a DMCA counter-notice (I tried twice, using both YouTube’s counter-notice webform and a counter-notice emailed to copyright@youtube.com), all I got was an automated response essentially telling me this is a Content ID issue not a DMCA issue. Other emails I have sent about this to YouTube’s copyright support address have gone unanswered.

So I’m stuck. My Content ID dispute was rejected, but in a manner other than a DMCA takedown notice, so I am not allowed to take advantage of the DMCA counter-notice process. It appears there truly is no recourse for this situation. My video is blocked, and there is simply no process to file a further dispute and get my video restored again. Contrary to both the takedown process established by law and YouTube’s own stated policy, the condition at the end of the process is that the user’s video remains blocked, rather than remaining up unless notice is given of pending legal action over the video.

This situation is frankly outrageous. It was bad enough when YouTube created the Content ID system in the first place, imposing automated blocks on videos with no regard for fair use. It is even worse now that this system apparently has no effective means of dispute, since whenever a copyright owner chooses to “confirm” their claim (as anecdotal evidence suggests they are doing with increasing frequency), there is nothing users can do to fight it. They are literally stuck in a gap between YouTube’s two competing copyright systems–a black hole which YouTube does not acknowledge even exists, and which, to my knowledge, no one else has ever addressed either. Something must be done about this, since until YouTube’s policy in this situation changes, many videos that are perfectly legal and non-infringing will continue to be unjustly blocked by Content ID with no recourse.

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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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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:

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It Pays to Know Your Rights Under Copyright Law

Posted by darklordofdebate on April 8, 2009

Today I realized I hadn’t been paying too much attention to marketing my YouTube channel of late. I had recently noticed that one of my anime music videos using the song “Hand of Sorrow” by the Dutch symphonic metal band Within Temptation had been getting a lot more views and comments lately. By far my most popular AMV on YouTube, it now has just over 80,000 views, which is pretty awesome. But it wasn’t until I looked at the view statistics using YouTube’s handy analytics tool, Insight, that I realized why it has experienced this sudden increase in traffic.

Here is a screenshot of a graph of the number of views my video has gotten over the last few months:

View Statistics for one of my anime music videos on YouTube using a song licensed by Warner Music Group

View Statistics for one of my anime music videos on YouTube using a song licensed by Warner Music Group

Within Temptation is licensed in the US under RoadRunner Records–a subsidiary of Warner Music Group. You’ll notice a huge jump in views of my video beginning around January 5th, where my video went from averaging around 100 views a day to around 400. This just happens to coincide with when Warner had a licensing fallout with YouTube and demanded that YouTube block all videos using songs it owned the rights to.

At the time, this caused a huge stink among YouTube users (though not as big as I wish), who beginning in late December and early January suddenly found their previously allowed content featuring WMG songs being blocked by YouTube’s copyright filters. This caused a huge problem with the same artist as my video above–Within Temptation, who in November had just held an innovative YouTube contest in which they provided users with behind the scenes concert footage and asked them to make a music video of the same song I used in my AMV. The winner, who had won a free trip to a concert in Amsterdam, now found his video yanked off YouTube, dispite it being done with the express approval of the band and being featured on the band’s website.

The result of all this was that everyone who uses YouTube is now mad at Warner, and the Electronic Frontier Foundation has been urging people whose videos are unjustly pulled from YouTube to fight it by disputing the automatic takedowns with fair use counterlclaims, and has even offered to defend those who do in court if necessary. The reason for my video’s sudden increase in popularity? I did precisely that.

Somtime between the last week of December and the first week of January, I received a notice from YouTube saying my video had been disabled because it had been identified as infringing on Warner’s copyright by YouTube’s automatic Content Identification System. Because this was one of my most popular videos, I wasn’t about to let them delete my video just because a computer had matched the song I used with one on Warner’s blocklist. And because I have spent the last four years acquiring a thorough knowledge of copyright law, I was pretty sure I could successfully defend my video as a fair use of Warner’s content.

So I immediatly disputed the copyright claim, citing the following reasons for why my video constituted fair use under US copyright law. It was (1) non-commerical and not for profit, (2) transformative in nature (combining music and video), (3) was of sufficiently low quality that it could not reasonably compete with the original work, and (4) could have no possible negative effect on the market for the original song, but would in fact promote the song and motivate people to buy it. My video was automatically restored after filing the dispute, and a couple months later a message appeared next to the video saying the dispute had been sucessful and the copyright claim had been removed.

However, as the statistics indicate, most other people apparantly didn’t do what I did. Before the Warner ban, there used to be numerous videos using that same song on YouTube, including several other Final Fantasy AMVs. Because I defended my rights under copyright law and other users didn’t, my video is now one of only a few videos using that song, and now appears at the top of the YouTube search list. The YouTube analytics also indicate that at the same time, the number of people who discovered my video through related videos fell dramatically, while the number who discovered it through YouTube searches rose dramatically. So I guess I have Warner to thank for removing all my competition so my video could increase in popularity. I guess draconian copyright enforcement has its place after all!

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