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Progress in Fair Use Case For YouTube Video



10:43 am on Aug 21, 2008 (gmt 0)

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Progress in Fair Use Case [latimesblogs.latimes.com]For YouTube Video
A federal judge in San Jose handed a victory to fair-use advocates today, refusing to dismiss a lawsuit that a Pennsylvania woman filed after Universal Music Publishing forced YouTube to remove a video of her children cavorting to an old Prince hit. But it may prove Pyrrhic, as the judge expressed doubt that the woman would ultimately be able to prove her case.

The legal skirmish centers on a 29-second video that Stephanie Lenz posted to YouTube last year that features her then-13-month-old son racing around the kitchen. The video includes a decidedly low-fi recording of Prince's "Let's Go Crazy." At Universal's request, YouTube removed the video and kept it off for more than a month, prompting Lenz to sue. Lawyers from the Electronic Frontier Foundation, which represents Lenz, argued that Universal violated the notice and takedown provision of the Digital Millennium Copyright Act, which says copyright holders can demand the removal of their works from the Web if they have "a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law." Because the video was a fair use of Prince's work, the EFF contended, Universal violated the DMCA.


8:55 am on Aug 22, 2008 (gmt 0)

WebmasterWorld Senior Member tangor is a WebmasterWorld Top Contributor of All Time 5+ Year Member Top Contributors Of The Month

It's not the length of time. It's the intent to drive profits.

Actually, length is a requirement for adjudication. FCC allows 10 seconds as "fair use" and the recording/film industry also agrees. Check your local radio and tv stations for examples...they display that "use" day in day out. This has been dealt with in the realm of infomercials for music collections. The interesting thing in this regard is bot management regarding intellectual properties


11:46 am on Aug 22, 2008 (gmt 0)

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The ultimate point of copyright is to protect sales of a work of art.

The moral case is that the artist can more easily earn a living from art that people are willing to pay for. They can either sell their art directly to the public, or sell the rights to someone else, but either way the artist benefits.

This video can't possibly harm sales of the Prince track, so the moral argument behind copyright doesn't apply.

If the audio was higher quality, the song was played in full and the video was an adequate substitute for the copyrighted original, then it might cause harm to sales, but none of those are the case.

Whether the judiciary actually applies the spirit of the law remains to be seen though...


9:04 pm on Aug 22, 2008 (gmt 0)

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>I think the waters will continue to be tested.

There's no doubt of that. On one side, the people who don't control new works but currently control content already creatged, will want to use new technologies to extend their control far beyond the monopolies originally granted (ostensibly to encourage the original creation of the works.)

On the other hand, new technologies lower the cost of replication, making the "freedom of the press" almost free-as-in-beer, and people who create content will want to retain access to the modern equivalent of the printing press.


6:19 pm on Aug 23, 2008 (gmt 0)

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Don't forget the third party: Google. Even if the woman or her son post a video with no commercial intention, YouTube/Google keep it up to make a profit off ads next to videos. Not that YT is making money, but it's still the intention. As long as Google is not a charity, anything posted on YT is at risk of copyright problems.



1:35 pm on Aug 25, 2008 (gmt 0)

WebmasterWorld Senior Member swa66 is a WebmasterWorld Top Contributor of All Time 10+ Year Member

I think the boundary should be clear:

Mom taping son: sure whatever was playing on tv should be fair use

Mom posting video on a personal blog: well mom becomes publisher now, she should be aware of possible legalities and this becomes much more gray

Mom posting video to youtube (perhaps to facilitate getting it on her blog): now Google becomes the publisher in part as well and they for sure know the legalities in detail.

Look at other publishers to know how to react: what does e.g. America's Funniest Home Videos do ? Right: they pay royalties for any score they add, they blur the things playing on TVs where they do not want to pay for ...

So mom publisher her blog: well ... I think it should be ruled fair use

So youtube publishing lots of background/audiotrack/... they should be dealth with like a radio or TV station: they hand in playlists and pay royalties. End of story. And it would simplify the mom publishing her blog: she posts the tricky bits to youtube, youtube pays the royalties as needed (and at a greatly discount rate), and mom is in the clear no matter what.


4:49 pm on Aug 25, 2008 (gmt 0)

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The whole point of the concept of "fair use" is to face the reality that boundaries can be clear, or socially justifiable, but not both.

However, the issue of youtube has been addressed by congress, and they disagreed with you about where SOME of the lines should be drawn.

As youtube acts as an ISP, that is, it provides the publication of unreviewed content provided by its customers (just like Geocities, or Verizon) it is legally dealt with like any other ISP: it cannot police content, as it has no way of knowing where its customers are getting the stuff, and it has no way of knowing what content could be gotten but shouldn't have been.

And so the legal responsibility is placed with the person who (1) is CAPABLE of dealing with it, and (2) PROFITS by dealing with it.

It's always fortunate for society when one and the same person has the ability, the motivation, and the legal responsibility for an action. In this case, the person is the copyright owner, and the action is finding infringements.


8:40 pm on Aug 25, 2008 (gmt 0)

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Unfortunately, when the copyright owner programs it's infringement scanning bots to automatically send out DMCA Take-down notices without human review, innocent people are in turn infringed upon.

Universal rocks for making a bot that can detect Prince in the background of a video, but they lose points for not having the common sense that some things are actually fair use (and thusly that they should review the bot's find before issuing a take-down notice).

Well put, hutcheoson


10:51 am on Aug 26, 2008 (gmt 0)

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I understand its copyright infringement, but at the end of the day the purpose of copyright is not to loose money. But in this case, who’s loosing money? If anything, theyre getting their music heard to a bigger audience which is probably helping to boost sales and fees from legitimate sources where the money exists to pay for it.


8:48 am on Aug 30, 2008 (gmt 0)

WebmasterWorld Senior Member tangor is a WebmasterWorld Top Contributor of All Time 5+ Year Member Top Contributors Of The Month

Guys and gals, there was a ruling. See the ruling at [eff.org...]

Universal was chastised for NOT making effort to determine Fair Use before sending the take down notice. This is actually huge...


11:18 pm on Aug 31, 2008 (gmt 0)

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Thanks for the link - that makes for a very interesting (though lengthy) read.

Why, tangor, do you think this is huge - can you clarify?

[edited by: Syzygy at 11:19 pm (utc) on Aug. 31, 2008]


11:32 pm on Aug 31, 2008 (gmt 0)

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Copyright holders must assess whether material has been used fairly before they demand that it be taken off the internet, a US court has ruled. The case involved a YouTube video clip of a baby dancing to a Prince song.

Rights holders who demand that material be taken offline without such an assessment risk paying out damages and costs to whoever published the material, the court said.


Judge Fogel said that the damages available to Lenz might be small, but that damage had been done. "Though damages may be nominal and their exact nature is yet to be determined, the Court concludes that Lenz adequately has alleged cognizable injury under the DMCA," he said.



7:27 pm on Sep 8, 2008 (gmt 0)

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The issue here is whether the person filing the copyright complaint, and by extension their employer, is guilty of perjury. That's what it takes to file one of these things, a person has to say "i swear under penalty of perjury ..."

They have to say something that boils down to: I have a good faith belief that this use of the copyrighted material is not sanctioned by the copyright owner or the law.

And if their bot has no knowledge of "fair use", and if their bot's findings are not individually reviewed by people who do, then it sounds to me like somebody perjured himself, probably without even engaging his brain on the question of whether what he was putting his name to was true, but maybe he did ask and his employer assured him all was correct.

The value of this particular part of the DMCA is that it allows for ISPs to do the right thing rather quickly in cases of copyright abuse, but then if a person lies and misuses the system he is supposed to be held strictly responsible. This is about holding someone and their employer responsible for perjury.

--edited for bad spellies--

[edited by: Belinn at 7:34 pm (utc) on Sep. 8, 2008]


9:05 pm on Sep 9, 2008 (gmt 0)

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"good faith belief"

The good judge will doubtless be gratified to hear that I agree with him. The whole point of the DMCA is to allow copyright violations to be handled quickly, not to allow legal goons to hassle people who are exercising their constitutional rights. Which means a DMCA notice shouldn't be sent if there's not good reason to believe there is an actual violation -- not merely evidence of the presence one element that would also be present in an actual violation.

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