When we made this recent piece for NARAL: Pro-Choice America, we needed debate footage that we could mash-up and play with. Should we have to pay a private corporation to re-use the footage of our national candidates speaking? If you were to want to grab video of President Bush speaking in order to criticize it, you would have to pay the station that ran the original story. Does that make sense?
The issue of what is Fair Use and how this specifically relates to our political life is an important one. Pressure from the right places can make a difference in the push for more openness. Responding to a complaint from the Computer and Communications Industry Association (CCIA), the Federal Trade Commission told NBC that their copyright notices were deceiving the public about the public’s right to use materials under the Fair Use doctrine.
The move drew immediate praise from CCIA President and CEO Ed Black, who said NBC’s decision “further opens the doors of the political process.
“The Internet, the great equalizer of our time, empowers people from every walk of life to make better decisions with more information,” he said in a statement. “Indeed, the political process depends on this very principle.”
Black pointed out that fair use guidelines allow others to use portions of the debates for commentary and review, but do not require the footage to be release entirely without restrictions, as the networks have agreed to do.
“Nevertheless, because the public’s fair use rights have limits, ABC and NBC are to be praised for providing the public with unrestricted use of this content, thereby ensuring that the democratic discourse will not be impeded,” he said.
An interesting issue about whether embedding a YouTube video that violates copyright could make the person who embeds the video also in violation of copyright. This is an important concern in a world of portable media:
There seems to be a considerable amount of interest in and confusion about the copyright law consequences of embedding a YouTube video in your blog. In fact, the Blog Herald recently ran a story suggesting that bloggers could be on the hook for copyright infringement if they embed a video that turns out to be infringing.
Well, the news really isn’t that dire. In fact, we believe that bloggers are generally pretty safe on this score, at least until someone notifies them that an embedded video is infringing.
First, it’s important to understand what an embedded YouTube video is — it’s a link. No copy of the YouTube video is being stored on your server (only the HTML code for the embed). The video stays on, and is streamed from, YouTube’s servers.
That makes the embedded YouTube video essentially indistinguishable from the in-line image links that are used all over the Web, including in Google’s Image Search.
In the recent Perfect 10 v. Amazon ruling, the Ninth Circuit made it very clear that where in-line links are concerned, there is absolutely no direct copyright infringement liability. So, for purposes of direct infringement, the answer to one question will generally resolve the issue: where is the copy hosted?
That leaves contributory infringement. If you link to a video that you know is infringing, or that any reasonable person would have known is infringing, and if your link materially contributes to the infringement, then you could be liable for contributory infringement — a kind of “aiding and abetting” liability.
The contributory infringement test should leave plenty of breathing room for most bloggers. Two rules of thumb should avoid most issues — (1) don’t embed videos that are obviously infringing, and (2) consider removing embedded videos once you’ve been notified by a copyright owner that they are infringing.
If you want even more protection, you can register yourself as the “Copyright Agent” for your blog (requires a form and $80 payment to the U.S. Copyright Office), familiarize yourself with the requirements of the DMCA’s online service provider “safe harbors” (the chief one for most bloggers will be notice-and-takedown), and take advantage of the same protections that shield Yahoo! and Google when they link to sites that may include infringing materials.
In short, embedding YouTube videos isn’t that scary from a copyright POV, at least until a copyright owner takes the trouble to notify you.
Keeping with my recent political theme… I saw on the site of Ron Paul, the Republican presidential candidate, video he mashed up from the debate. I was thinking… can he do that? Is it Fair Use? Did he get permission or pay? MSNBC putout some crazy rules for their debate footage, saying it couldn’t be used on the internet basically. Yeah right. Joe Biden ignored them, and I would also because there is no way they are going after a presidential candidate with a cease and desist order.
When the presidential debates are aired by CNN on June 3rd and 5th, the public will be able to edit, remix, parody and publish the footage — without worrying about copyright violation. CNN has pledged to make debate footage available to the public “without restriction.” [Here's the link to CNN's press release on the subject.]
CNN’s decision comes on the heels of an open letter from a broad coalition of scholars, public advocates, and Internet entrepreneurs calling for the release of all debate footage under a Creative Commons license. Several major candidates have also joined the call.
This fight isn’t over yet, however. Not all future debates will be hosted by CNN. If MSNBC’s rules concerning re-use of footage of the May 3rd debate footage get picked up by other stations, some of the important discourse concerning the election of our next President will remain locked up by big media companies.
“Fair Use” is a legal term that is getting a lot of play lately. I have written about this before because it is so important to those of us making media. Fair Use is a carve-out of copyright law that says that though someone may own this TV show or movie or song, you can use it, or part of it, in certain ways without having to pay them if it falls under the Fair Use principle. Criticism, for example, is fair use. If I want to write a book review and I print an excerpt from the book, that is fair use. Same for a movie review.
Another area of fair use is parody. I can make fun of something and not need to pay them. So the record company tried, but failed to get paid for this funny video using “I Will Survive”
The problem with Fair Use is that there is no totally clear standard. The good news seems to me to be that while media companies send out a lot of cease and desist letters these days, they also back down when someone chooses to fight them. The worst case for them is to lose in court and then have legally created a stronger fair use standard.
The folks at American University’s Center for Social Media are hosting a dialog on Fair Use with OneWorld. You can “Ask the Experts” online. Patricia Aufderheide, the Center’s Director and a good friend of See3 and DoGooderTV, was interviewed this morning on NPR on the issue of fair use. You can listen to the story here.
The legal concept of “fair use” is very important to our business and is an issue you really care about, even if you don’t know it. Fair use is a carve-out of copyright law that allows people to use copyrighted material for certain uses. Parody is a great example of fair use. For example, Saturday Night Live can do a skip making fun of American Idol without having to purchase rights to that show. And, for example, we used some Jimi Hendrix in this video for Amnesty International and we didn’t pay for it. (You can learn more about Fair Use from our friends at American University’s Center for Social Media.)
The issue of fair use is complicated because there is no one to go to that will tell you if your use qualifies. The only definitive way to know is if you are sued. The dynamic here is interesting because even big media companies don’t have a big interest in suing too often and for something that just might qualify. The reason is that they might lose and the bar for fair use might be set in a way they don’t want it.
MoveOn and Brave New Films did a parody of Stephen Colbert called “Stop the Falsiness.” Viacom, the owners of Comedy Central, issued a take-down notice under the Digital Millennium Copyright Act (DMCA) and the video disappeared from YouTube. MoveOn and Brave New Films, with the help of a great organization called the Electronic Frontier Foundation (EFF), sued Viacom because they said this is clearly a case of fair use. Viacom backed down and the video is back up. And in exchange for dropping the suit, Viacom agreed on all kinds of consessions. From the EFF press release:
… The lawsuit was filed in federal court last month, after a parody of “The Colbert Report” was removed from YouTube following a meritless copyright complaint by Viacom. The humorous video, called “Stop the Falsiness,” was created by MoveOn and BNF using clips from the Comedy Central television series. It was a tongue-in-cheek commentary on Colbert’s portrayal of the right-wing media and parodied MoveOn’s own reputation for earnest political activism.
Viacom initially denied sending the Digital Millennium Copyright Act (DMCA) takedown notice that resulted in the removal of the video from YouTube, while saying it had no objection to “Stop the Falsiness.” However, Viacom later conceded it was the source of the demand and admitted error in taking action against the parody.
In the course of discussions with EFF and FUP, Viacom described the steps it endorses for protecting fair use and free expression as it targets copyright infringement on Internet video sites. This includes: manual review of every video that is a potential DMCA takedown target, training reviewers to avoid issuing takedown requests for fair use, and publicly stating that it does not challenge use of Viacom materials that are “creative, newsworthy or transformative” and are “a limited excerpt for non commercial purposes.”
Furthermore, in reaction to the MoveOn/BNF suit, Viacom moved the ball forward for Internet users’ rights. In order to address any similarly erroneous takedown notices in the future, Viacom has agreed to set up a website and email “hotline,” promising a review of any complaint within one business day and a reinstatement if the takedown request was in error.
