Publishers vs. YouTube

Mack Reed puts his finger on it — almost — in the Online Journalism Review:

The Web has made unauthorized propagation of information — whether copyrighted or not — instantaneous and virtually irreversible.

Videos are uploaded, downloaded and re-uploaded under different authors’ names: YouTube users know this from having tried to find the “original” version of some videos, which have been found on sites other than YouTube and recopied several times by users and mashup artists who add their own comments or edits to the source material before YouTubing them.

Millions of bloggers routinely lift information from copyrighted news stories — nearly always with due credit — and repackage it under their own banners, basically aggregating and creating new news content (and ad-driven profit streams) from existing ones. The same goes for copyrighted news photos published to the Web by AP, Reuters and numerous newspaper web sites.

Two factors may be at work in the apparent paucity of copyright lawsuits stemming from such use:

1. since news web sites garner significant traffic from blog links pointing to them, they may be loath to poison the well, let alone alienate the audience by litigating.
2. bloggers get away with sometimes more-than-fair-use republication of copyrighted information because no news organization’s legal department has the resources to chase them.

A possible third reason: such suits won’t stand up in court.

In short, the copyright you secure before selling and posting news video to a news organization’s site, or a share site such as YouTube, may be worth far less in the long run than the paycheck you earn from its initial sale.

I figured he wouldn’t mind an extended excerpt, under the circumstances. But seriously, folks, I think he’s got it right, except maybe with respect to the case he’s actually commenting on, i.e., the lawsuit against YouTube. Why is that?

Well, why won’t most copyright infringement suits for Internet use of material he describes “stand up in court”? One reason is that most of the use being complained of is fair use. With videos, I would say, the fair use defense is probably weakest. As Stanford puts it, “The less you take, the more likely that your copying will be excused as a fair use. However, even if you take a small portion of a work, your copying will not be a fair use if the portion taken is the ‘heart’ of the work. In other words, you are more likely to run into problems if you take the most memorable aspect of a work.” With a video, I’d argue that a very small piece of a video gets to the heart of the matter very quickly. Words, and less so pictures, are easy to recast, and the creative element of a news story reporting a (hopefully) non-fictional event is entitled to a pretty narrow band of protection.

But with a video, there is only that video. Short of the commentary and criticism permit, it’s hard to argue that use of a video is fair use.

Reason two, according to Mack, is the Safe Harbor provision of the Digital Millenium Copyright act. He cites this article by Fred von Lohmann, who writes as follows:

Fortunately, YouTube has an important legal shield that was not available to the old Napster: the so-called “online service provider safe harbors” created by Congress as part of the DMCA. One provision, Section 512(c), was designed to protect commercial Web-hosting services, which feared they might be held responsible for the posting habits of their customers.

…

Because YouTube essentially stores material at the direction of its users, it can find shelter in the same safe harbor that Web-hosting providers do.

The safe harbor works like this: So long as YouTube plays by a few rules, content owners can’t collect damages from it, even if its users infringe their copyrights.

Rule No. 1 is the implementation of a “notice and takedown” system to respond to infringement notices from copyright owners. YouTube, of course, has this in place and takes down material once properly notified by an owner that a clip is infringing. Section 512(c)(3) sets out exactly what a copyright owner must include in a takedown notice. . . .

The safe harbor will not protect a Web host if it is “aware of facts or circumstances from which infringing activity is apparent” — in other words, if you make your living providing hosting services to pirates-R-us.com, don’t look to the safe harbor for protection. YouTube doesn’t appear to be sheltering any obvious pirate fleets, so this shouldn’t be an issue.

Hm, I’d say von Lohmann has a little too glibly waved away the “aware of facts” factor here, and he more or less acknowledges the “surely, there could be problems” angle later in the article. Yes, there could be; there almost certainly are. It should not work to say that you are building a business model around, in part, the idea of infringing until you’re told to stop. That is not the idea of the safe harbor provision (as I and a committee of my close friends argued here). Also, the safe harbor provision is meant to apply to ISP’s and web hosting companies, not, in my view, providers of Internet services based on the specific content which, as it turns out may infringe.

Not only is the DMCA fair harbor not meant to do this, but if a court decides that is, guess who will be in Congress tomorrow? And guess what industry pretty much always gets its way in Congress? “Information wants to free” (to use, not to produce) types better not hope for the kind of “won’t stand up in court” victory they’re hoping for.

So I agree with Mack Reed that “this is a case to watch, and that content generators have to learn to live with more “borrowing” because of the Internet. As he points out, they will wisely learn to profit from it and protect themselves technologically to the extent they can. But they’re not giving up the ship so fast on images and videos, and I doubt they should.

Comment at Dean’s World.