YouTube: Infringing, protected by DMCA or Fair Use?
YouTube: Infringing, protected by DMCA or Fair Use?
Gene Pierson
November 8, 2008
Commentary post
YouTube is a user generated video sharing website that enables users to upload, view and share video clips. Currently, YouTube generates over 100 million hits per day and over 60,000 new videos are uploaded daily. Although, YouTube has a disclaimer that states:
“Do not upload any TV shows, music videos, music concerts or commercials without permission unless they consist entirely of content you created yourself. The Copyright Tips page and the Community Guidelines can help you determine whether your video infringes someone else’s copyright,”
many of the videos uploaded are clips from movies, music videos, televisions shows, and other protected material. However, there have been estimates that between 30 and 70 percent of the videos available on YouTube are infringing videos. One way YouTube protects itself from copyright infringement is by limiting the length of most videos to ten minutes. Additionally, videos are not downloadable through YouTube and are subject to removal if they are found to be infringing.
The exclusive rights that are granted to a copyright holder are the rights to produce copies or reproductions of the work, sell and distribute those works, import or export the work, create derivative works, perform or display the works publicly, or transmit or display by radio or video.
First, we must determine if YouTube has violated any of these rights. It is clear that when a movie or television show is uploaded onto YouTube a copy is being made. Furthermore, YouTube is publicly displaying the works and transmitting them. Moreover, there may be infringers who are creating derivative works and uploading the works on YouTube.
Second, even if YouTube is posting copyrighted material on YouTube there may be certain defenses to use the material. Through research, I found that YouTube has stated that it is protected by the Digital Millennium Copyright Act (DMCA). The DMCA was created to provide protection for intermediate internet carries so long as the provider does not have actual knowledge that the material or any activity using the material is infringing. For years, YouTube has stated that it does not have actual knowledge of infringing activity because it would be impossible for YouTube to review all of the 60,000 videos that are uploaded daily. Additionally, YouTube has stated that it can only remove material when the copyright owner notifies YouTube. YouTube, has kept this policy because it believes that the copyright owner is in a better position to determine which videos are infringing and which are not.
Third, as a defense under the DMCA it is the copyright owners burden to prove that YouTube had the right and ability to control the infringing activity from which YouTube has derived a benefit. However, similar to Napster, a court would likely hold that YouTube had the ability to control what materials were being uploaded/viewed and could have blocked infringers. Which is deferent from the holding found in Perfect10 v. Google, from earlier in the semester which stated that Google was acting more as an organizer of other peoples works then as a actually displaying the pictures. Currently, it is unclear if YouTube would be able to use the DMCA defense to allow display copyrighted worked.
Fourth, YouTube might also be able to claim the Fair Use Defense if infringing material is uploaded onto YouTube. The Fair use doctrine allows for a limited use of copyrighted work based on a four factor balancing test. The factors include: the purpose and character of the work, the nature of the work, the amount and substantiality of the work and the effect on the copyright holders potential market.
The first factor to analyze is the purpose and character of the work. Similar to Napster, one factor that weighs heavily in favor for the copyright holder is if there is a commercial use for the work. Another similarity to Napster, is that YouTube would likely state that it is merely “space shifting” the video and uploading the video to their computer to be able to watch it wherever they wanted to. However, as in Napster, a court would likely hold that the videos on YouTube on not just for private use because anyone would be able to view them online. This is substantially different from BetaMax, where VHS tapes were majoritly used for private home viewing.
The second factor for fair use is the nature of the work. The nature of the work depends on how transformative the work is and how much is added/gained by the new work. However, in YouTube’s case most of the works uploaded are exact copies. Therefore, there is little if any transformation of the works posted on YouTube.
The amount and substantiality of the portion used is the third factor for fair use. There are many different variations of YouTube videos currently uploaded onto the site. Therefore in my opinion, in dealing YouTube cases it is imperative to determine the amount and substantiality used on a case by case basis. Fore example, last week I decided to Watch HBO’s hit TV series “Band of Brothers” and I was unable to find it on any other site so I searched YouTube. Although, I was unable to find a full version of the episodes I was able to find 10 min long clips of each episode which did just fine. Taken as individual pieces one could make the argument that the amount and substantiality of each piece was not enough to warrant copyright infringement. Although, when looked at as a whole (The whole 10 part series was online) it is clear that there was infringement. However, another example is I was searching for a clip showing the final 20 seconds of a basketball game. In this example, one could make the argument that even though a small segment of the game was shown, it was substantial segment. A final example, where a court would likely find fair use, might be a 10 second clip of a family guy episode, where neither a substantial portion nor amount would be taken from the episode.
The fourth and final factor for fair use is the effect the infringement has on the copyright holder’s potential market. Once again, analogous to Napster, by allowing the public to watch full episodes or TV shows and movies, the market for DVD sales and TV viewer ship (no commercials) would be negatively effected. Additionally, with TV shows, most broadcasting networks show their episodes on-line (with commercials and advertisements). However, if you are able to watch the episodes free of charge with no commercials many people would prefer to watch them on YouTube. I believe that it is obvious and very parallel to Napster, that YouTube effects the potential market for DVD sales and TV viewer ship.
Therefore, in most circumstances all four factors of the Fair Use test weigh against YouTube (In certain cases the third factor may not). Although, it seems that YouTube would not be able to use a DMCA or Fair use defense I checked earlier and YouTube is still a valid domain name. Additionally, I checked tttp://www.mywebsiteworth.com/site/youtube.com and found out that YouTube is currently worth close to 600 million dollars. Furthermore, I am very interested to see the progression of YouTube and if its case line will follow Napster/Grockster, enabling people to violate copyright law, or be seen more like Google (as an organizer of online material).