I recently clashed with Giant Media Corporation Universal Studios over copyright, and lost. \u00a0I probably could push it and win, but their lawyers can beat up my lawyers, and whether I’m right or wrong is probably irrelevant.<\/p>\n
The argument was brokered by YouTube<\/a>, whose interest is in remaining neutral so that Giant Media Corporations don’t sue them. \u00a0Because a small company like YouTube and their parent company Google something-or-other don’t need to get dragged into this nonsense.<\/p>\n Look, copyright law is supposed to facilitate creativity, not stifle it. \u00a0It facilitates creativity because it is supposed to ensure you don’t just rip everyone else off willy-nilly. \u00a0If your work can just be stolen, you’re not going to put any effort into being creative. \u00a0Few will, anyway. \u00a0Some people are creative just to be creative, but the vast majority would like to earn a buck or two from it, if possible.<\/p>\n So there’s copyright, and then there’s this thing called “fair use.” \u00a0It means there are times when you can expect to reasonably and legally use the work of others, and not have to worry about getting sued. \u00a0Understanding and honoring fair use is more important than ever nowadays, when the power to create media that were previously only accessible to Giant Media Corporations has been distributed to the masses. \u00a0Now that both information and creativity have been democratized (among those who can afford a laptop and some basic software), the Giant Media Corporations worry more than ever over their own well-being. \u00a0If any schmoe can do what they do, what’s that going to do to stock prices?<\/p>\n And by the way, Fair Use is not just putting a disclaimer on your YouTube video. \u00a0And it has nothing to do with whether you make money off what you create (or borrow). \u00a0There is a pretty good “Best Practices for Online Video”<\/a> document that has been put together by folks in the business. \u00a0In that document, the first two questions you must ask yourself (because that’s what the judges will typically ask themselves when you’re hauled to court) are:<\/p>\n – \u00a0Did the unlicensed use \u201ctransform\u201d the material taken from the copyrighted work\u00a0by using it for a different purpose than that of the original, or did it just repeat the work for the same intent and value as the original?<\/p>\n – Was the material taken appropriate in kind and amount, considering the nature As the Best Practices guide concludes, if the answer to both questions is “yes”, you’re probably OK. \u00a0But there are also other cases of Fair Use:<\/p>\n –\u00a0Commenting on or critiquing of copyrighted material. \u00a0Nowadays, you don’t have to be Gene Siskel to critique movies. \u00a0Anyone can do it. \u00a0As long as you don’t reproduce the entire movie under the guise of “critique” and actually say something (positive or negative) about it, you’re critiquing copyrighted material. \u00a0In this case, reproducing an excerpt for illustration purposes is completely legal (I’m talking to you, Universal Studios!)<\/p>\n –\u00a0Using copyrighted material for illustration or example. \u00a0As in the example above, you are creating new content – you’re expressing thoughts or ideas, and it’s legal to use an appropriate amount of a copyrighted work to help clarify your point, whatever you’re talking about. \u00a0This is how night-time comedians on cable TV make their money – did you think those news clips they use to make fun of politicians were not copyrighted? \u00a0Of course they are! \u00a0And Fair Use isn’t just for Jon Stewart.<\/p>\n – Capturing copyrighted material incidentally or accidentally. \u00a0Videotaping your kids opening Christmas gifts and Nat King Cole is singing in the background? \u00a0You may post the video on YouTube if you wish.<\/p>\n – Reproducing, reposting or quoting in order to memorialize, preserve, or rescue an experience, an event, or a cultural phenomenon. \u00a0This one is a bit tricky. \u00a0Can I record Bruce Springsteen in concert when he comes to town, and claim that I’m preserving an event or experience? \u00a0I guess it’s about proportionality. \u00a0I’ve done this, and so far Bruce hasn’t objected.<\/p>\n – Copying, reposting and recirculating a work or part of a work for purposes of launching a discussion. \u00a0This could be, for example, posting a part of a movie on YouTube to prompt the discussion that ensues in the comments. \u00a0For example, in the movie “Kind of a Funny Story”, you could show where they sing Queen’s “Under Pressure” \u00a0and ask whether this is an effective technique. \u00a0Oh, wait – that’s what Universal Studios objected to!<\/p>\n – Finally, you can quote in order to recombine elements to make a new work that depends for its meaning on (often unlikely) relationships between the elements. \u00a0This is what you call a mash-up. Bush and Blair sing “Endless Love.”<\/p>\n Unfortunately, the way it works on YouTube is:<\/p>\n – you post a video you think qualifies for “fair use”<\/p>\n – the YouTube filter catches it, and the owner of the quoted work decides whether you may continue to share this work<\/p>\n – you have an opportunity to dispute the claim (after repeated warnings by YouTube that you could be mercilessly sued if you’re wrong in your claim)<\/p>\n – the owner of the quoted work decides if they agree with you or not.<\/p>\n In this case, Universal Studios decided they don’t agree I was critiquing the film “Kind of a Funny Story”<\/a>\u00a0or quoting for the purpose of stimulating discussion, so YouTube deleted the video, and sent me a Stern Warning to discourage me from pushing back. \u00a0This is the email I got from YouTube:<\/p>\n Please Note:<\/strong>\u00a0Repeat incidents of copyright infringement will result in the deletion of your account and all videos uploaded to that account. In order to prevent this from happening, please delete any videos to which you do not own the rights, and refrain from uploading additional videos that infringe on the copyrights of others. For more information about YouTube’s copyright policy, please read the\u00a0Copyright Tips<\/a><\/em>\u00a0guide.<\/p>\n If one of your postings has been misidentified as infringing, you may submit a counter-notification. Information about this process is in our\u00a0Help Center<\/a>.<\/p>\n As much as I’d like to claim one for the little guy fighting the Giant Media Conglomerates who want to bully everyone else into accepting their version of copyright law, I’m not sure I have the energy to try and fight this all the way from southern Africa. \u00a0And these things only turn out well in the movies.<\/p>\n Instead I’ll share a video by people whose ridiculous claim of “Fair Use” has not been disputed, and an a capella version of “Under Pressure” that no one has an issue with. \u00a0Enjoy!<\/p>\n
\nof the copyrighted work and of the use?<\/p>\n