YouTube and Misuses of Copyright Law
In the last few years, YouTube has become a creative hub for artistic discussion and collaboration, allowing people to easily produce content that shares their opinions, criticism, or admiration for another’s work within a video format. The rise of YouTube and other creative platforms has been accompanied by the development of Fair Use laws, which protect creative or evaluative content from claims of copyright infringement. Unfortunately, in their attempts to accommodate rapidly changing digital platforms, these Fair Use Laws are often vague and open to interpretation. As a result, YouTube frequently upholds bad faith copyright claims and fails to consistently support Fair Use laws. This issue has been facilitated by the lack of clarity in the wording of the laws, demonstrating the need for Fair Use Laws to be clarified to ensure they protect the rights of both copyright holders and their creative works.
Fair Use laws are currently too vague to adequately fulfill their intended purpose. Framed as an exception to the rights of copyright holders, Fair Use comprises four “factors to be considered.”1 These include 1) why the original work was used, 2) what the new work is, 3) how much of the original work is reused, and 4) how the original work is affected.2 In short, any work that discusses or uses some amount of a copyright-protected work is subject to these vague standards. In practice, these “factors” almost exclusively defend the copyright holder, leaving individual, unfunded YouTube channels vulnerable. These four factors of consideration also beget additional case-by-case questions. For example, should a parody video with a joke from every episode of a T.V. show be removed on the basis of using too much of that work? Should negative reviews be prohibited in case they detrimentally impact the profits of the copyrighted work they discuss? While copyright holders have power over the licensed material they create, these concerns underscore the importance of establishing strict boundaries for how copyright holders can act against individuals who respond to their creative works.
Generally, Fair Use is considered to include everything from commentaries to criticisms to parodies, all of which is underpinned by the standard that the use of copyrighted materials must be “transformative.”3 While this standard does partially encapsulate the intention of Fair Use—that the new creative work intends to do something with someone else’s original creation, to interact with it, not just redistribute it—it remains as open to interpretation as the nebulous four factors in the actual law. Parodies are particularly vulnerable as they have a higher potential to disrupt the market.4 Copyright holders may understandably consider it unfair for a work based on theirs to earn more; however, in the context of YouTube, proper parodies can provide insightful commentary, entertainment, and in fact improve the financial prospects of the original copyrighted entity, as viewers will be more likely to seek it out. For example, Brownmark Films sued South Park in 2012 because one of their episodes emulated Brownmark’s viral “What What (In The Butt)” video. Ultimately, the adjudicating court deemed that the episode was in fact Fair Use, as it provided additional commentary and may have actually positively affected the original video’s market, as viewers of South Park would be more likely to search out Brownmark’s content.5,6
As one of the most popular, modern platforms for digital creation, YouTube must protect its users from companies trying to unrealistically and unfairly control discussions of their material. If an entity believes that its copyright has been infringed upon by a YouTube video, it can file a Digital Millennium Copyright Act (DMCA) takedown to have the content removed.7 For instance, illegal copies of movies posted to YouTube are not Fair Use, and so should be taken down. DMCA provides a good mechanism for this justified removal process. However, problems arise when DMCA claims are filed in bad faith.
These problems are exemplified and currently exacerbated by the unfair burden of proving Fair Use. In the case of Lenz v. Universal Music Corporation, Universal Music filed a DMCA notice after Stephanie Lenz posted a 30-second video of her son dancing to “Let’s Go Crazy” by Prince.8,9 Lenz sued to dispute this takedown, which the court upheld, saying that DMCA takedown notices should not be filed when the material in question is covered by Fair Use, but that the burden would be on the plaintiff to prove the claim was made in bad faith.10 The onus of this order is unfair, as taking advantage of the current protections of Fair Use requires an involved analysis of the video’s intentions and impact (using the four factors listed above), whereas it should be obvious from context whether a YouTube video is actually infringing upon copyright.
YouTube has a long history of upholding DMCA takedowns without due investigation.11 Although they have since claimed to offer resources to help some YouTubers fight DMCA claims, YouTube still generally sides with copyright holder companies.12 Considering YouTube’s usership is primarily composed of private individuals making videos for little to no monetary reward, they are clearly protecting the wrong entities. Moreover, YouTube’s pernicious and convoluted site rules surrounding copyright infringement and Fair Use have resulted in unorthodox tactics to avoid punishment.13 On their website, YouTube says that users should not “use content in their videos that someone else owns the copyright to, such as music tracks, snippets of copyrighted programs, or videos made by other users.”14 While it is reasonable to limit the number of copyrighted content users should be allowed to upload, this seems too all-encompassing, as “snippets” implies that any use of copyrighted material beyond entirely divorced references is forbidden. This order opposes the spirit of Fair Use, as a transformative YouTube video that includes minor references and images from a copyrighted work clearly falls under Fair Use.
Current Fair Use laws do not achieve their intended purpose. For example, YouTuber Jim Sterling chose to create a video featuring as much copyrighted content as possible from many different sources, so that the competing copyright holders would be unable to reach a consensus about who had the right to claim against the video.15 Although Sterling is an anomaly among all YouTubers who create Fair Use content, his video is directly counterintuitive to the goal of Fair Use and it demonstrates the pervasive issues with the current system of Fair Use. Specifically, Sterling’s video is merely one instance wherein the current system of Fair Use laws can actually reward people for exploiting copyrighted content instead of doing something meaningful with it, which should be the spirit of the law. Fair Use should allow creators to have fruitful, nuanced, and interesting interactions with copyrighted media while also protecting the ownership of the original content.
Certainly, YouTubers should not be given a free license to manipulate copyrighted content. Ironically, however, this form of manipulation materializes when corporations can easily make a DMCA claim to suppress opinions or depictions they dislike, and YouTube users do not have the resources to battle major companies in court. The law requires deep reform when the easiest way for YouTubers to protect themselves is to actively try and infringe copyright instead of being able to rely on the protections of Fair Use.
Ultimately, Fair Use is a brilliant tool, and an important one to protect and encourage important discussions surrounding art and culture. YouTube is a great user-friendly, accessible platform for these discussions, but its policies surrounding Fair Use inadvertently create a much more hostile environment. Fair Use law itself is based on a series of four factors and simply instructs creators to “consider” them. This guidance does not adequately delineate how creators can protect themselves or how copyright holders can understand their ownership limits.
In order for Fair Use to function properly, legislation needs to clearly prescribe what Fair Use of copyrighted materials actually entails and when it is reasonable for a copyright holder to challenge this. Furthermore, YouTube needs a more robust system to handle DMCA takedown notices, and it must start protecting its usership instead of permitting baseless claims to thrive and large corporations to take advantage of private individuals. Fair Use, and the ability to openly criticize, comment on, parody, and discuss copyrighted media is extremely valuable. The current system of consideration “factors” needs to be replaced with a robust structure that outlines what actions constitute Fair Use and includes more stringent protections for the creative works that fall under Fair Use.
References
[1] Limitations on Exclusive Rights: Fair Use (Copyright Law of the United States and Related Laws Contained in Title 17 of the United States Code – May 2021 (Circular 92)).
[2] Ibid.
[3] Stim, “What is Fair Use?” (What Is Fair Use? - Copyright Overview by Rich Stim - Stanford Copyright and Fair Use Center).
[4] Williamson, “Is My Parody Fair Use?” (Is My Parody Fair Use | Copyright Alliance).
[5] Brownmark Films, LLC v. Comedy Partners, No. 11-2620 (2012) (Brownmark Films, LLC v. Comedy Partners, No. 11-2620 (7th Cir. 2012) :: Justia).
[6] Samwell, “What What (In the Butt)” (Samwell - "What What (In the Butt)" - YouTube).
[7] Phishfort Research, “What is the DMCA?” (What is the DMCA? (phishfort.com)).
[8] Lenz v. Universal Music, 801 F.3d 1126 (2015) (LENZ v. UNIVERSAL MUSIC C | 801 F.3d 1126 (2015... | 20150914123| Leagle.com).
[9] “Let’s Go Crazy” ("Let's Go Crazy" #1 - YouTube).
[10] Lenz v. Universal Music.
[11] Chingcuango, “YouTube Fair Use: Nostalgia Critic, Alex of ‘I Hate Everything,’ Markiplier, And More Rally Against Unjust Copyrights” (Youtube Fair Use: Nostalgia Critic, Alex of I Hate Everything, Markiplier, And More Rally Against Unjust Copyrights - Morning Ledger (archive.org)).
[12] Finley, “Google Pledges to Help Fight Bogus YouTube Copyright Claims—For a Few” (Google Pledges to Help Fight Bogus YouTube Copyright Claims—for a Few | WIRED).
[13] Hernandez, “Game Critic Uses Brilliant Workaround For YouTube’s Copyright Bullshit” Game Critic Uses Brilliant Workaround For YouTube's Copyright Bullshit (kotaku.com).
[14] “YouTube Copyright & Fair Use Policies” YouTube Copyright & Fair Use Policies - How YouTube Works.
[15] Ibid.