by Rachael Vaughn and the OTW Legal Committee
Last week, YouTube announced revisions to its copyright policy, which may impact vidders and other fans using YouTube. In short, YouTube has eliminated its one-size-fits-all three strike termination policy in favor of a revamped Copyright Education Center and an official Copyright School. Unfortunately, the Copyright School is presented in the form of a very one-sided tutorial cartoon that attempts to summarize a complicated and constantly evolving area of law using a teal squirrel in a pirate hat.
Before discussing the content of the Copyright School video, it is useful to review how YouTube’s policy has actually changed. Known as the “three strikes rule,” YouTube’s old policy stipulated automatic suspension of user accounts receiving three uncontested copyright takedown notifications. It is important to differentiate between copyright takedown notifications and content ID matches (http://www.youtube.com/t/copyright_strike), which do not result in “strikes,” but may lead to uploads being automatically blocked. Only notifications from a copyright owner result in strikes. YouTube’s new policy retains the basic “three strikes” framework, but adds two additional provisions. First, if a user receives a copyright notification, the user is required to view the Copyright School video and pass a corresponding quiz. Second, YouTube may remove strikes from an account if the user: (1) successfully completes Copyright School; and (2) has demonstrated good behavior over time.
As characterized in an informative post from EFF, the end result of the policy change is a bit of a “mixed bag” for YouTube users. The new rules will arguably result in fewer account suspensions, but at what price? In exchange for removing the infamous strikes that lead to account suspension, users must graduate from a Copyright School with a questionable pedigree.
Although the Copyright School video does not explicitly make statements that are legally incorrect, it does employ a number of traditional scare tactics to dissuade users from uploading certain types of content. Mashups and remixes are two examples of content that is portrayed in a particularly unfavorable light. In the video, the pirate squirrel is repeatedly warned by a voice-of-god narrator about the harsh penalties associated with uploading video that is not 100% original. When the poor little guy tries to make a suitably original video by recording a band performing in a park with his phone, he is told that he will be subjected to a variety of punishments including jail, lawsuits, and getting smashed over the head with a giant gavel.
The video’s explanation of fair use is relegated to a short section in which the narrator reads portions of the statute in a humorously fast voice while the animations on the screen are replaced with cramped text, suggesting that fair use is just mumbo jumbo that no ordinary person should try to understand. Users are advised that if they do not understand fair use, that they should seek the counsel of a copyright attorney. As one blogger points out: “all children have copyright lawyers, so this is a workable solution.” (http://copyrightlitigation.blogspot.com/2011/04/fair-use-fridays-youtube-flunks.html)
Generally YouTube’s Copyright School does a fantastic job educating users about what cannot be done with copyrighted content. Unfortunately, it neglects to acknowledge that there are many situations in which copyrighted content can be lawfully transformed to further the promotion of science and the useful arts. In those situations, YouTube’s copyright dispute processes and the DMCA counter notification procedures are available. For more information, EFF’s Fair Use Principles for User Generated content and the Center for Social Media’s code of Best Practices in Fair Use for Online Video provide useful principles for ordinary videomakers considering fair use.
But that might be telling stories out of school.