People have gotten themselves in trouble on YouTube, both with the site and with the law, from not understanding what's allowed and what isn't. You don't need four years of law school to understand what's OK and what isn't. YouTube spells it out for you.
In its terms of service, YouTube prohibits uploading anything you do not completely create yourself or have express written permission to use. In writing, YouTube does not allow fair use. Here:
http://help.youtube.com/support/youtube/bin/answer.py?answer=55772&topic=13656 (URL 6.16)
YouTube states the following:
What is your policy on copyright infringement?
YouTube respects the rights of copyright holders and publishers and requires all users to confirm they own the copyright or have permission from the copyright holder to upload content. We comply with the Digital Millennium Copyright Act (DMCA) and promptly remove content when properly notified. Repeat infringers' videos are removed and their accounts are terminated and permanently blocked from using YouTube. For more information about YouTube's copyright policy, read our Copyright Tips.DISCLAIMER: WE ARE NOT YOUR ATTORNEYS, AND THE INFORMATION WE PRESENT HERE IS NOT LEGAL ADVICE. WE PRESENT THIS INFORMATION FOR INFORMATIONAL PURPOSES ONLY.
A BROADCAST TOWER IN YOUR HOME
A perfect example of tools of art and communication being available to use that used to be available only to corporations and governments is podcasting, which can be done with either video or audio. Since I was a little kid, I have always wanted to have a worldwide broadcast facility in my home. Now, thanks to podcasting, RSS, and BitTorrent, I do. The weekly 1-hour episodes with me and Debra Jean yacking in our living room get 70,000 downloads a month, all over the world. And this is all without requiring a license or a transmitter and without being censored. All it took was a $200 Zoom H2 recorder, a $450 dedicated BitTorrent server computer, and an ongoing commitment to putting a few hours a week into recording, editing, and promoting.
I now have my worldwide broadcast facility in our little nest of a home. Figure 6-6 shows pretty much how I picture my house in my mind these days.
Figure 6-6. Nestenna image taken from Fickr. License: Legal remix by me of house photo by Flickr user Robert C. Wallace, www.flickr.com/photos/robwallace/ (URL 6.15), used with permission. This was originally marked Creative Commons noncommercial use only, but I asked the author for permission to use it in this book.
YouTube covers itself legally in writing with the previous statement and by removing alleged violations when asked by the copyright holder. In practice, however, YouTube has a lot of copyrighted material on the site, and it often stays there until a copyright owner complains. This is not YouTube being disingenuous; it's simply that the incredible amount of content on YouTube makes it almost impossible to police it all. It's rather like the Wild West, where you'd have one sheriff and a few deputies policing an area the size of a modern county. Or larger. There just weren't enough resources to check under every bush for cattle rustlers.
Media companies' desire to extract brutal legal justice on 12-year-old girls and 78-year-old grandpas and everyone in between seems to hark back to the Wild West. In the American frontier, the few sheriffs couldn't possibly catch every cattle rustler, but when they did catch one, the trials were short, the sentences were stiff (usually death by hanging), and the hangings were very public to discourage further offenses.
YouTube deals with perceived copyright violations in several ways. If you upload copyrighted content made by someone else or use copyrighted music or video in a project you make and upload, you will probably be in violation of the YouTube terms of service.
YouTube may delete the video and send you a notice or not send you a notice. YouTube might also completely delete your account.
How YouTube deals with it may depend on how many subscribers you have and whether you're a YouTube partner. If you have five subscribers, YouTube may just delete your account. If you have 20,000 subscribers and are a partner, YouTube might be more likely to just give you a warning.
Companies are learning that fair use is sometimes collaboration, not always stealing, and that it can actually help them "ship units" if people quote the content of those "units" without permission in a vlog or blog. But don't count on every company thinking this way.
Sometimes the legal department of a company will issue cease-and-desist orders to everybody, and if people contact someone else at that company, an exception will be made. Sometimes. Don't count on it, but it does happen. YouTube user renetto, http://youtube.com/user/renetto (URL 6.17) made videos of himself reading essays (in their entirety) from an NPR series of essays called "This I Believe." renetto believed that this fell under fair use. NPR sent a takedown notice to YouTube, not knowing that renetto could lose his YouTube account for this.
renetto says in this video
| http://youtube.com/watch?v=M9zDyrBLDz4 (URL 6.18) |
that he later spoke to an attorney, and after speaking to the attorney, renetto believed he probably had crossed a line with his readings. (Keep in mind what I said earlier that "Fair use is determined by the small amount of the borrowed material versus the larger amount of the original material and the relevant and direct expansion of the borrowed work by the new work.")
renetto contacted NPR and asked them nicely not to have YouTube take down his account, and NPR contacted YouTube on his behalf. renetto still has his account, which is good, because he has a lot of subscribers (38,259 as of this writing) and has worked hard at creating and growing his YouTube presence.
NPR even wrote him back and said, in part, "We are not at all opposed to anyone who wishes to make similar videos of their favorite 'This I Believe' essay. We simply ask that they contact us first to receive permission and proper copyright attribution from us and the individual essayist."
While this is a case of someone quickly undoing the trouble they got into from incorrectly assuming that their use of something would fall under fair use, you shouldn't assume that things will always go this much in your favor, and it seems (according to renetto's vlogs on the subject) to have caused a lot of worry.
All around, for myself, I'd say it is better to be safe than sorry and also remember that something is usually considered valid fair use if you use a small bit of someone else's material and expand on it rather than simply using all of it, even if you read it or perform it yourself.
Note
YouTube takedown requests occur and are challenged between mainstream multiplatinum artists. Here's an article about Prince asking YouTube to remove a fan-shot cell phone video of Prince and his band performing a Radiohead song at a concert. Radiohead singer Thom Yorke said, "Really? He's blocked it? Well, tell him to unblock it. It's our song."
http://tinyurl.com/5g29hj (URL 6.19)
Here's a good two-step test on fair use from the Center For Social Media: www.centerforsocialmedia.org/rock/backgrounddocs/bestpractices.pdf (URL 6.20):
Did the unlicensed use "transform" the material taken from the copyrighted work by using it for a different purpose than the original, or did it just repeat the work for the same intent and value as the original?
Was the amount and nature of material taken appropriate in light of the nature of the copyrighted work and of the use?
And here is a good resource (from the same PDF) for what generally may constitute fair use:
Employing copyrighted material as the object of social, political, or cultural critique
Quoting copyrighted works of popular culture to illustrate an argument or point
I recommend reading that entire PDF if you want to learn a lot about fair use.
Keep in mind that as YouTube says in its own words that "WE ARE NOT YOUR ATTORNEYS." YouTube leaves it up to you to make sure you stay on the legal side of the law and will do nothing to defend or protect you if someone tells them you've broken the law. This is by necessity, because YouTube would go out of business if they had to provide lawyers to give legal advice to every user on the site.
YouTube also has deals with many record companies and will sometimes monetize (literally, to turn into money) your video with advertisements rather than take it down and give the non-YouTube share of the profits to the people who own the content you use. (When you are in the partnership program and monetize one of your own original videos, your share of the profits is 55 percent. YouTube keeps the other 45 percent. The advertisers are paying, not the viewers. You'll learn more about this in Chapter 11.)
YouTube reserves the right to do this, even if you use only a little bit of the record company or movie company's material and the bulk of the video is your original work. When a video of yours is found to be in copyright violation, the owner of the copyright has the right to monetize and take the 55 percent share, and they can do this whether you're in the partnership program or not. This is why you will occasionally see ads next to nonpartnered videos.
It's up to the record company or movie company, not YouTube, whether the video is monetized or removed. YouTube gives the companies the option; the companies review and decide.