Where’s the Fair Use?
Let’s begin with what Fair Use means. It refers to a legal doctrine that, to quote Wikipedia, “permits limited use of copyrighted material without acquiring permission from the rights holders.” Some may think that this gives carte blanche to rip off material left and right, but the law actually determines what’s fair game and what’s plagiarism through a few clauses. One of these is the parody clause which says that if the copyrighted content is used for parody, is transformative enough, or the like, source material can be used without permission or loads of legal hoops to jump through.
So why is this suddenly such a hot topic? Well, a certain group of online personalities have come under fire when they should be protected by Fair Use: critics. Several online critics like the Nostalgia Critic, Brad Jones, Jim Sterling, and others who post their work on YouTube have been subject to their videos being flagged and taken down, which negatively impacts their body of work. Most flags stem from the fact that their videos use clips from the works they’re reviewing to help illustrate the points they’re trying to make. Some could argue that they don’t have the right to use the clips, but this actually falls under Fair Use. The law states it as follows:
“When a copyright holder sues a user of the work for infringement, the user may argue in defense that the use was not infringement but ‘fair use.’ Under the fair use doctrine, it is not an infringement to use the copyrighted works of another in some circumstances, such as for commentary, criticism, news reporting, or educational use.”
But okay, some misanthropes are flagging videos incorrectly to stir things up. That should be fine, right?
Wrong.
See, here’s the problem: it’s not random people filing the claims, it’s the studios that make the movies being reviewed. And it isn’t just being overzealous about copyrights either; reviews that pan the movies are being specifically targeted. YourmoviesucksDOTorg’s review of Cool Cat, as well as the Nostalgia Critic’s reviews of Mamma Mia!, the Mike Myers Cat in the Hat, and Eight Crazy Nights, to name a few, are such victims. In a sane world, this would be an inconvenience that would be easy to fight off, but unfortunately the YouTube copyright system is incredibly broken.
Going forward, there are going to be references to specific YouTube terminology, including the terms “strike” and “claim.” To help you understand this, allow me to present Doug Walker, a video producer known as the Nostalgia critic on Channel Awesome, as he discusses struggling with the YouTube system in the video below.
YouTube has a three strike rule that says that if a channel has three strikes against it or files three counterclaims that are defeated or deemed fraudulent, their channel can be taken down. In fact, one strike alone can limit their ability to monetize, post longer videos, or even fight back against said strike. However, there is no penalty for any companies, studios, or individual filing fraudulent claims. Making things worse is that the copyright system on YouTube is completely automated, meaning that no one actually watches the video to see if the claim or strike is valid — it automatically goes through. This means that companies can file as many claims as they want, legitimate or not, while the producer is limited in how he or she can fight back.
For people who use the Internet professionally, this is a major hindrance at best and terrifying at worst. The people being targeted are guilty until proven innocent and burdened with galling restrictions. I mentioned the ability to turn off monetization for accused videos, but studios also have the ability to appropriate monetization from certain videos. More heinous, even if the claim is rescinded, defeated, or found to be false, the company keeps all the money that would have gone to the producer during that time. The fact that there’s no due process makes all of this completely slanted against the producers and downright unconscionable.
Some of the instances of claims and strikes don’t even make sense. Brad Jones received a claim against one of his Midnight Screenings videos, despite it being two or more people talking in front of a camera in a car with absolutely no copyrighted material. Jessi Nowack, also known as Nowacking on the Internet, had the monetization of her Dark Swamp series, which is an abridged parody of the anime Black Lagoon, appropriated by someone who had zero ties to Black Lagoon and Sony flagged her “All About That Bass Cannon” song despite her taking absolutely no samples from the Meghan Trainor Song. But the most egregiously insane instance is when YouTube’s automated copyright system flagged the channel of Internet musician Miracle of Sound for unauthorized use of the copyrighted music of… Miracle of Sound. That… is incompetent. It would be like Adele’s channel getting flagged for posting a video of “Hello.” In what universe does that make sense?
Jim Sterling of the game journalism series The Jimquisition tackles the subject here. Warning: He swears. A lot.
The whole thing reached its zenith more than a week ago when Team Four Star’s YouTube channel got taken down. For those who don’t know, Team Four Star is a group of Internet voice actors that write and produce comedy material including abridged series and let’s plays. Their more famous work is Dragon Ball Z Abridged, in which they edit together clips of Dragon Ball Z, dub over it with their own voices, and make it into its own comedic story. It is the literal definition of parody and transformative work, two things that Fair Use is supposed to protect, and it still got hit with a strike by the people that make Dragon Ball Z, even though that is illegal by all rights. Their channel was eventually restored, but only after enough uproar was made by the community, which is not how this process should work.
For the most part, YouTube has been hands off which has really hurt things. Their entire system is automated and many online producers have said it’s nigh impossible to talk to an actual person to help sort out the problem. Recently, however, YouTube CEO Susan Wojcicki has publically reached out on Twitter to various producers that have spoken up, saying that they are indeed listening to the feedback. Granted, this doesn’t necessarily mean they’ll do something about it. An online brony producer called Jan Animations was contacted by Hasbro after they gave him a Cease and Desist Order to say that they would try to work something out to make everyone happy… only for them to string him along for about a year to avoid outright saying that he couldn’t continue his fan project based on their show. But the fact that they’ve publicly spoken up is something, so call me cautiously optimistic.
We’re in a very interesting time where we have to reevaluate some of our laws. Things are now possible that none of us could have conceived of even a decade ago, such as the style of critique on display here or transformative parodies like the abridged series. The Internet has opened up new venues and broadened our horizons. So to put these folks into the same category as online pirates is shortsighted and downright ignorant. This abuse of power has to stop and YouTube can’t be allowed to simply sit by and let it to happen.
The Internet gives our voices power, so let’s use it. Join me. Take to Facebook, Twitter, YouTube, your local coffee shops, your book clubs, your meet ups, and join me in asking one very important question: Where’s the Fair Use?
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