Copyright…..Again

Read an update to this post here

***The object of this post is to point out that YouTube will, can, and do remove any content that they receive a DCMA Take Down notice for. It’s self defeating to think that YouTube/Google would be willing to risk a lawsuit to defend “fair use” or blame them for putting their business first***

I posted recently about DarkSydePhil (DSP) after BlameTruth uploaded a video in his defense regarding the deletion of DSP’s YouTube channel.

Apparently there has been a lot of debate regarding the issue of DSP and the use of copyrighted material. DSP posted a video which is effectively Copyright (USA Version) in a nutshell. Some strong language so Not Safe for Work (NSFW):

The core is that DSP is right. His interpretation of “Fair Use” is correct. But unfortunately he’s wrong if he thinks that YouTube is going to fight his corner for him. YouTube is a business, if some company decides to sue them for breach of copyright then they’ve got two options – get rid of the offending content, or go to court, incur massive legal costs and maybe even lose (costing more money).

Currently I have four videos on YouTube that are in danger territory. Two of them have been flagged automatically by YouTube for having third party copyrighted material in them, the other two….under the radar apparently. I’m not particularly bothered if YouTube decide that they break their rules and take them down. It’s not like they send the Men in Black to your house, smash your harddrive and erase your memory. I knew the risks before I uploaded them, and I know the risks while they are there.

What I do not expect is for YouTube to make some sort of stand against Universal, or Sony, on my behalf over a montage. I do expect YouTube (or Vimeo, Moavi or anyone else) to protect their business interest, invoke the terms and conditions that users agreed to and dump the content.

The Digital Millenium Copyright Act (DMCA) and the European Union Copyright Directive (EUCD) effectively made it not worth the hassle to defend against copyright infringement – especially when there is jail time on the line.

If DSP, or anyone else actually wants to get a legal ruling that clearly defines what constitutes “Fair Use” then they need to setup their own ISP (or use a company like PRQ) re-upload all their videos there and then wait for the legal threats. They’ll then be able to put their case for “Fair Use” to the copyright holders and ultimately get their day in court.

I wouldn’t recommend it, not unless you have a bottomless pit of money, some really good anti-stress pills, and a lot of time. But it’s a much more effective plan than complaining on YouTube.

C’mon people, you agreed to YouTube’s Terms and Conditions just like I did. Part of those terms breaks down to the fact that if you become a pain in their ass for any reason, you’ll be gone. Getting take down notices from copyright holders (no matter how retarded or tenuous the reason) constitutes being a pain in the ass. So unless you are videoing your own face (as long as you don’t look like a celebrity who has copyrighted their likeness) don’t be too surprised if YouTube removes your content.

Even Hitler thinks that YouTube are a bunch of pussies when it comes to DMCA take down notices:

(thanks to Donncha for this)

That’s my tuppence worth on YouTube copyright practice.

Read an update to this post here

Peas and loaves.

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9 thoughts on “Copyright…..Again

  1. I agree with you wrt using copyright music as the soundtrack to a video.

    You’ll probably like this video which is somewhat related to this. If the Youtuber has sufficient talen they can create a parody of the song and that is protected. But like Hitler says, Youtube will just roll over! http://vimeo.com/11086952

  2. First off nice blog you have going here Dave, I found you on youtube a few days ago.

    On the DSP situation, when I first saw his video where he brings up fair use, I agreed with him and thought yes he is protected under fair use. However I read some of the posts on the forum that he linked to in the description for that video and that changed my mind a bit.

    Someone over there mentioned that fair use only gives you limited use of the copyrighted material and here is where I think DSP’s problem is. Even though DSP is adding his own commentary, the star of his videos is the game itself and his play through videos show the entire game. So in my mind he’s really pushing it when it comes to limited usage protection under fair use. Of course what is also pretty clear is that this is a pretty grey area and until someone does what you suggested and takes it to court there will be no absolute answer.

    Anyway that’s just my opinion, I’m not a lawyer by any means I’m just playing one on the internet.

    • Thanks for the reply.

      I get what you’re saying about fair use only being for limited use…..but then how did Weird Al Yankovic make his career changing the words to songs and sending up the videos. Surely that is also copyright infringement?

      It is a very grey area. And going on the Weird Al defence it would appear that DSP is in the right.

      Realistically DSP should dump the fair use argument and claim his stuff is derivative and incorporates transformativeness therefor being entitled to copyright protection in its own right:

      http://en.wikipedia.org/wiki/Derivative_work

      But YouTube is not going to back him, or anyone else on that. The individual would need to make their own representations. Perhaps a tactic would be to contact the legal guys of the copyright holder before uploading and say: “hey guys, I’m gonna do a derivative work incorporating transformativeness based upon the work titled [insert copyrighted material title here]. I notify you this out of courtesy and to inform you that any copyright claims against MY work will be considered vexatious litigation blah blah blah”

      At the very least it would put them on the backfoot at least initially, and maybe make them consider picking on an easier and less informed target (like a kid singing the the theme to Dora the Explorer).

      But regardless of the legal situation of DSP or anyone else’s uploads to YouTube – if YouTube get the hump, the content gets gone. You can’t argue with YouTube’s T&Cs.

      • Weird Al obtained permission from the original artists for his work and also paid them royalties. Coolio did make some claims against Weird Al, but apparently stopped caring about the issue once the checks started coming in. So I guess it all comes down to money. I never saw DSP’s videos myself but from what I’ve heard he wasn’t too positive in his review of Splinter Cell so one has to wonder if that’s why Ubisoft decided to flag his videos.

        Interesting idea with the Derivative Work, I hadn’t heard anyone mention that idea yet. I agree that seems like a better course of action over the fair use argument.

        You are correct YouTube is never going to fight for DSP or anyone else for that matter in regards to these issues. YouTube probably doesn’t want these issues ever taken to court. In the present situation YouTube is able to thrive because these grey areas exist. I’m sure the legal team at Google has analyzed this issue to death and has come to the conclusion that answering these questions is more dangerous than leaving them unanswered.

  3. Pingback: Weekly-ish Update #7 « evaDlivE Blog

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