For YouTube videos, a 'fair use' boost

A federal judge's decision requires media companies to take a good look at videos before alleging they have infringed on their copyright. Will this make it tougher to send the dreaded take-down notices?

Greg Sandoval Former Staff writer
Greg Sandoval covers media and digital entertainment for CNET News. Based in New York, Sandoval is a former reporter for The Washington Post and the Los Angeles Times. E-mail Greg, or follow him on Twitter at @sandoCNET.
Greg Sandoval
4 min read

Victor Rook, an indy filmmaker who was once wrongly accused by Viacom of copyright violations, is happy a judge has reminded media companies to think twice before calling someone a pirate.

In February 2007, Viacom demanded that YouTube remove Rook's documentary about a professional wrestler, accusing him of using some of the company's copyright material. The conglomerate was mistaken. None of the video or music Rook included in his film belonged to Viacom. Executives at the company apologized but the filmmaker still had to wait three weeks before the clip was reposted to YouTube, which he says hurt his efforts to market the film.

The entire episode would have never occurred had "Viacom ever looked at the video," Rook claims.

"YouTube and Google have adopted a policy that forces copyright owners like Viacom... to shoulder the entire burden of monitoring for copyright infringement."
-- A letter to YouTube user from Viacom

Copyright owners, such as NBC Universal, Warner Bros., and Viacom, were put on notice Wednesday when U.S. District Judge Jeremy Fogel ruled that they must not order video be removed from Web sites indiscriminately. Before taking action against a clip, copyright owners, must form a "good-faith belief " that a video is infringing, according to Corynne McSherry, an attorney with the Electronic Frontier Foundation.

EFF represents the Pennsylvania woman who sued Universal Music Group for demanding that YouTube remove her clip, which featured her infant son dancing to 30 seconds of the Prince song "Let's Go Crazy." EFF has always argued that the video was a "textbook" example of fair use and Universal Music should have recognized that.

The music label, the largest of the country's four top recording companies, has indeed acknowledged that the clip doesn't violate their copyright and the clip has been reposted to YouTube. But Universal Music also argued before Fogel that it's not up to copyright owners to determine fair use.

Fogel disagreed. In his 10-page decision, he reminds Universal Music that the Digital Millennium Copyright Act already requires copyright owners to make a determination about fair use prior to sending take-down notices. "A consideration of the applicability of the fair use doctrine simply is part of that initial review," Fogel wrote.

But for copyright owners, Fogel's decision may further complicate an already arduous process of tracking and removing pirated clips.

A Viacom spokesman said Thursday that the company has sent 350,000 take-down notices to YouTube. Each of the offending videos is first reviewed by Viacom staff before the notices are sent. The media power has acknowledged making mistakes but less than 1 percent of the time.

Perhaps Viacom's position on handling take-down notices was best explained in the company's letter to Rook.

Mark Morril, Viacom's deputy general counsel, wrote to Rook: "Having reviewed the video, we acknowledge that its inclusion in the take-down notice was an error and the error however was completely unintentional. We sincerely regret that this error affected your video. We note that YouTube and Google have adopted a policy that forces copyright owners like Viacom or yourself to shoulder the entire burden of monitoring for copyright infringement on the YouTube site.

"Viacom has no alternative accept to repeatedly search the entire YouTube library," the letter continued, "and send take-down notices...This is a massive effort. We have manually reviewed over 1.7 million clips on YouTube and have identified more than 187,000 pirated clips of our copyrighted content. In an effort of this scale, some inadvertent error is inevitable."

Rook has little sympathy for the big media companies. He's skeptical about their review process and whether Viacom employees eyeball all the videos. He said that had anyone actually seen his video, there could have been no way they would have accused him of copyright infringement. Rook also said that a year before Viacom sent the take-down notice, one of Viacom's companies, MTV, had requested a viewing copy of his documentary.

"If that doesn't prove that Viacom knew my film wasn't their material I don't know what can," Rook said.

Mark Litvack, an entertainment lawyer with the Los Angeles law firm of Reed Smith, says that while it's good for the judge to remind media companies to take a hard look at material before making accusations, he doesn't think the lawsuit brought by the Pennsylvania woman is necessary.

"The DMCA absolutely anticipated this very scenario," Litvack said. "Universal said she infringed on her copyright and sent a take-down notice. She then has an opportunity to appeal to YouTube (counter-notification remedy), which is what she sought and the video was restored."

But McSherry of EFF argues that the counter-notification remedy doesn't protect people from unfounded claims and puts the onus on them to prove their innocence. She remembers that before the DMCA, a media company that wanted someone to remove allegedly infringing material would first have to convince a judge and then obtain a temporary restraining order.

"The DMCA streamlined the process but the law also tried to balance it," she said. What she is referring to is the DMCA's requirement that companies first form a good-faith belief that material is infringing before trying to remove videos.

Fogel agreed and the wrote: "The unnecessary removal of non-infringing material causes significant injury to the public where time-sensitive or controversial subjects are involved and the counter-notification remedy does not sufficiently address these harms."