YouTube has become the Internet’s go-to destination for more than just watching cat videos. People utilize YouTube now to learn how to do something or talk about a powerful cause using the medium of video to reach millions of people around the globe. Many of these videos integrate intellectual property of other companies in the capacity of fair use, but there are three words that strike a heavy blow against content creators: DMCA Takedown Notice.
The Digital Millennium Copyright Act (DMCA), implemented in 1998, criminalizes copyright infringement and other technology meant to circumvent digital rights management (DRM) measures that control access to copyrighted works. In 2007, Viacom filed a $1 billion lawsuit against YouTube (Viacom International Inc. v. YouTube, Inc.) due to violations of the DMCA. As a result, YouTube put in a Content ID filter in early 2008. In 2010, YouTube won the case based on the “safe harbor” provision of the DMCA. Despite appeals, the parties settled in March 2014.
Recently, Google announced that they will strengthen their fair use policy concerning YouTube. Fair use is a legal term that states that you can re-use copyright-protected material without consulting the copyright owner first under certain circumstances. These circumstances include criticism, news reporting or a remix (which includes satire). Google announced that they will also give legal support to those who have been subject to DMCA takedowns despite staying within the bounds of the fair use doctrine.
“More than 400 hours of video are uploaded to YouTube every minute. Some of those uploads make use of existing content, like music or TV clips, in new and transformative ways that have social value beyond the original (such as a parody or critique). In the U.S. this activity is often protected by fair use, a crucial exception to copyright law which can help discussion and creativity across different mediums to continue flourishing,” said Fred von Lehmann, copyright legal director at Google.
These legal costs, which can run into the thousands (or even millions) of dollars, can be too much for content creators to shoulder. In addition, content creators may be unaware of the process on how to counter a takedown notice. “We’re doing this because we recognize that creators can be intimidated by the DMCA’s counter notification process, and the potential for litigation that comes with it,” von Lehmann said.
Google also intends to create a “demo reel” concerning fair use so that both the YouTube community and copyright owners can view what fair use looks like online and develop better strategies moving forward. This will save time on users having to file counter-notices and copyright owners bringing out their legal team to pursue claims.
However, Google claims that the strengthening of the fair use policy won’t catch everything. “While we can’t offer legal protection to every video creator—or even every video that has a strong fair use defense—we’ll continue to resist legally unsupported DMCA takedowns as part of our normal processes. We believe even the small number of videos we are able to protect will make a positive impact on the entire YouTube ecosystem, ensuring YouTube remains a place where creativity and expression can be rewarded.”
Still, this is a step in the right direction. Content creators will have better protection against DMCA takedown notices, which should give them the freedom to practice creativity and expression.