In a video posted last week week, famous YouTube sensation The Nostalgia Critic laid out the amazing case against the “big media” who are using YouTube to bully independent creators, regardless of their right to fair use. He titled the beautifully articulated argument “Where’s the Fair Use?” and created the now famous hashtag #WTFU.  His argument brings to light many of the strange, and borderline abusive, devices used to take down videos that are clearly within the realms of fair use.

In honor of Fair Use Week, we present an interview with the team behind #WTFU:

Kyle K. Courtney (@KyleKCourtney): Before we get into the #WTFU controversy, please tell us a little bit about your work, and how fair use is a critical aspect of that work. [Channel Awesome]: We do a variety of shows that hinge on pop culture, but our most popular show is the Nostalgia Critic, a show that we have been doing for over eight years. The show revolves around reviewing movies, and with reviewing movies we show clips. The clips shown are either directly talked about as a voiceover during the clip’s presentation or after the clip has been shown. The discussion of the clips can direct criticism or commentary and in our newer videos these clips lead to a parody sketch. Fair use states that clips from movies and television can be used under the basis of commentary, criticism, education, and parody.
Your #WTFU video has gone viral among many different communities beyond your typical YouTube movie fanbase, including (from our research) lawyers, librarians, think tanks, IP policy makers, artists, documentarian, and more! (It has had over 1 million views, 100 thousand “likes,” and 15 thousand comments). What was the moment, or “the straw that broke the camel’s back” that caused you to make this video? This has been something that we have dealt with for most of our existence. We originally had to leave YouTube back in 2008 due to the constant copyright claims on our 5 Second Movies and early Nostalgia Critic episodes. Back then you didn’t have the ability to fight it, and after three claims your channel was gone. We started our own website (thatguywiththeglasses.com, now channelawesome.com) and used blip.tv to host our videos. We started bringing our content back to YouTube with the help of blip.tv in early 2013 on the League of Super Critics channel, and then we created our own channel in July of 2014. (achannelthatsawesome) We finally bit the bullet and started uploading our new Nostalgia Critic episodes in May of 2015 and started seeing what to expect on YouTube. Claims from people stealing public domain content and saying they owned it, false companies claiming content, and claims on dozens and dozens of Nostalgia Critic reviews. The videos that we recently made on the subject were something that we were planning to do for a while now, and with what has been happening on YouTube with people starting to really discuss it, it just seemed like the time was right. We were not getting any answers from YouTube or the people claiming our content, and the longer content creators stayed silent the more frequently this was going to happen.

We have talked about it before though. On the Tommy Wiseau Show, filmed during our The Room, How 5 Second Movies Work, and Leave 5 Second Movies Alone, both related to our initial exodus from YouTube.) Heck, we flew 10 people out to DC during the SOPA/PIPA fiasco and met with Representatives and staffers, informing them how those two laws would affect our small business.
You mention a few uses of the copyright takedown system being used for ulterior motives, outside of the protection from copyright infringement. One is the use of takedowns to suppress, scare, or censor opinion, speech, or viewpoint. Can you tell us more about that and its potential effect on all web-based content producers? Aren’t there repercussions for fake takedown abuses like this? The example provided by Jim Sterling is a perfect example on how companies can use the DMCA system to take down negative reviews; honestly, he sums this up perfectly.

As far as we know, there are no repercussions for false claims and takedowns, as these companies continue to do so, even after releasing manual claims and letting DMCA takedowns expire.

In your experience, which YouTube claims are more dangerous: the claims made through the rightholder’s automated algorithm or manual claims, which means a human being actually viewed and decided that their claim was valid? The takedowns done through DMCA are of course the most dangerous, at least on a creator’s account. YouTube automatically issues a strike after a DMCA claim is processed. Generally one strike on an account limits you to videos that are 15 minutes or less, but the most infuriating thing about what one strike does to an account is the fact that you can’t appeal any more claims while the strike is active. You can fight it and win (this can take 10 business days), but if you let it sit then that penalty would last for 6 months. On the other side, Content ID claims are just as bad in some cases. Through the automated system, using as little as 15 seconds of a piece of work can cause the Content ID system to place up to four different infractions on the video. 1) Tracking: they can track our videos stats (I have never seen this used). 2) Monetization is disabled: no one can make money off the video. 3) Monetization is taken: the claimant takes the money the video makes until the content owner files a counterclaim, and then no money is made on the video until the claim is resolved (this can take up to 3 months). 4) Blocked videos: this one most people aren’t talking about but I believe it’s the worst one. The claimant is basically getting the effect of a DMCA takedown without issuing one. A DMCA takedown requires YouTube to take the video down (no one can see it); a global block does the exact same thing. No one can see the video. Global blocks can be placed automatically after “infringing” content is found by the Content ID system without a human looking at. Companies are getting a DMCA takedown without the legal process of one!
I think one of the most shocking aspects of the video was the section where you cover the options for the takedown claimant, which includes, without proof of an actual, legitimate takedown, the fact that the claimant can take your monetization of a video (for those that are not YouTube savvy, this means engorging any profits made by the video producer) until you file a counterclaim, and even potentially keep that money. Can you talk about when this happened to your program? Could you recover that money at all?

This happens all the time. I believe we currently have nine videos being monetized by the claimant, and currently are fighting two of them. The system allows only three counterclaims to be open at a time on a YouTube account, well at least on the creator’s end. Filing three at once potentially could result in a channel deletion if all three come back with takedowns, plus what if we have a new video that gets claimed right out of the gate. We’d want to fight that right away. Our Event Horizon review was claimed a day after it went up on YouTube, and I guess luckily for us the claim was released in 2 days. We can’t recover the money. The period for when the video is claimed by the claimant and then countered by us results in the claimant keeping the money. After a counterclaim is in place, YouTube will not put ads on the video until the claim is settled. This results in lost money for the YouTube content creator if they win their case.

You talk about an uptick in the amount of takedowns issued over the last year. What do you think is driving this move? Honestly, we have theories, but really at this point they are just that.
These programs create “safe harbors,” why do you think legitimate content makers, like yourself, are being lumped in with pirates who are actually infringing? Intentionally? No. Unintentionally? Yes. The system currently in place is and has been abused for a while, and over time claimants have realized that they can claim anything and everything and not have a single repercussion. One of our friends, Brad Jones, had a video that had zero copyrighted footage in it claimed. That video was just he and a friend talking in a car about a movie they just saw. Another YouTuber, Chibi Reviews, had DMCA takedowns done on his account just because he used a thumbnail with a copyrighted image on it; nothing else in the video had anything remotely copyrighted. They’re just taking advantage of the system, because it allows them to.

The #WTFU video notes that you have changed your production in order to try to avoid getting these takedowns (not using clips, re-enacting scenes, etc.). Has this helped at all in lowering the amount of takedowns you have received? And, from a creator’s perspective, how frustrating is it that you have to change the way you make your show and, in fact, alter your creative output because of fear of legal action? Over the past 3 years we have been inserting sketches into content, shortening the clips used, muting any audio from the movie that we aren’t directly talking to or critiquing, and recently we started doing reviews with just reenactments and no footage. These are done on titles that we know will get claimed instantly. Having a new Nostalgia Critic episode claimed takes away a large chunk of money from us, and doing clip-less reviews is the only way to make sure we’re safe, but, as stated in above, even that might not be true going forward. Frustrating? Last year a new claim was a weekly occurrence while this year we’re dealing with claims almost every other day now. It’s tough to get through the backlog of claims when A) you have a bunch of them (we’re currently sitting on 14), and B) you really can only fight two at a time and hope it takes less than 3 months.

You recommend developing the same types of penalties in the system for copyright infringers as for those that make false claims. In your words, how would those “false claim penalties” work? For the false claim penalties, blatant repeat offenders need to have some sort of action placed on them. The tricky part is they all have some agreement with YouTube after the Viacom case, and with that said all these issues aren’t fully on YouTube’s end. YouTube will never get an OK from them to disable their claim process via Content ID because there are people who still upload full movies, television episodes, and music onto YouTube. So, penalties at least relating to Content ID would never happen.

What could help this is adopting a universal percentage used on content through the video. Fifteen seconds should not be the beginning of this and 20 seconds shouldn’t be the standard that they use. The EFF proposed 90% of the original work be what is considered infringing. Heck, we’d be fine with 40% becoming the new bar.

Then there are manual claims and DMCA takedowns. Manual claims mean that someone “viewed” the video and then claimed it as infringing. The DMCA has you state, under perjury, that you believe the video is infringing on your copyright. So, when these claimants check that little box about perjury, and then let the claim lapse after the counter DMCA is filed, shouldn’t perjury possible be brought to the table? Manual claims should be the same, as they are doing the same thing as a DMCA claim, by manually claiming that they saw the video and found it to be infringing. If the claimant issues a manual claim and releases the claim, or if the claimant issues a DMCA takedown and lets it lapse or releases the claim, then their ability to do so in the future for 6 months should be limited just as our accounts get limited by their actions.

The Lenz case was viewed as a victory for fair use over these abusive takedown claims. Why do you think the situation has gotten worse, despite the Lenz’s holding that requires a fair use inquiry prior to issuing a takedown notice? Currently, we don’t see any change resulting from that ruling.

On a side note, we have had videos of ours show on TV without asking our permission, and we’re fine with that. Most of the short videos used were shown under fair use. The people showing our videos edited them and then provided commentary or criticism on said video. Fair use is a two-way street. One party should not control both sides because currently the idea of a fair use defense only benefits them.

In the end, this problem, while running rampant on YouTube, is caused by the very outdated copyright law that we currently have here.  One of the more frustrating things to come from this is people telling us that this whole situation has them scared to continue doing their videos on YouTube, and then hearing others say that they’d love to start up a YouTube channel but the current system in place has them too frightened to even try.

In Defense of Fair Use: The Slow Food Movement Tells Us Something Important About Our Fair Use Rights

by Brandon Butler

Eat food. Not too much. Mostly plants.

That, more or less, is the short answer to the supposedly incredibly complicated and confusing question of what we humans should eat in order to be maximally healthy.

Michael Pollan, Unhappy Meals, NY Times Magazine, Jan. 28, 2007. Available online here.

Use fairly. Not too much. Have reasons.

That, more or less, is the short answer to the supposedly incredibly complicated and confusing question of how in-copyright works can be used lawfully under the fair use doctrine.

Food writer Michael Pollan has made a big impact on the way people think about what they eat. In a series of magazine pieces, books, lectures, and a recent documentary, Pollan has proposed a kind of paradigm shift, away from what he calls “nutritionism” and toward a simpler approach to healthy eating embodied in his seven-word epigram, “Eat food, not too much, mostly plants.”

I’m a big fan of Pollan’s thinking and writing, and not just because my law clinic students helped to vet the fair uses in the PBS documentary about him (#humblebrag). The forces he describes as shaping (and misshaping) the way we think about food are actually at work in many areas of life. Indeed, almost everything Pollan says about our dysfunctional relationship to food is in some sense true of copyright law, and especially of the doctrine of fair use. Let me explain.

The Problem: A Pseudo-scientific and Alienating Ideology

Food

Pollan calls our dysfunctional relationship with food “nutritionism.” In “Unhappy Meals,” he describes nutritionism as:

not a scientific subject but an ideology. Ideologies are ways of organizing large swaths of life and experience under a set of shared but unexamined assumptions.

… In the case of nutritionism, the widely shared but unexamined assumption is that the key to understanding food is indeed the nutrient. From this basic premise flow several others. Since nutrients, as compared with foods, are invisible and therefore slightly mysterious, it falls to the scientists (and to the journalists through whom the scientists speak) to explain the hidden reality of foods to us. To enter a world in which you dine on unseen nutrients, you need lots of expert help.

Eaters in the throes of nutritionism are bombarded with the latest theories about which nutrients are good for them and which are bad. They go to the grocery store looking for foods that proclaim an abundance of fiber, or the absence of carbs, for example. This orientation systematically favors processed foods over natural foods, as the former can be easily engineered and branded to fit the latest trendy research. It disfavors simple foods like fruits and vegetables, and nutrient-blind advice like “eat less.” Instead, we are led to believe that so long as our cookies and beer are low-carb or rich in “good” cholesterol, or whatever, we can eat and drink as much as we like.

Fair Use

The situation is alarmingly similar where fair use is concerned, thanks to what I call “copyFUD.” For years our basic orientation toward copyright has been one of fear, uncertainty, and doubt, with the sense that whatever it is that makes acts infringing or fair, it’s not something ordinary people can see or understand. No one can know what their rights are without a judge’s pronouncement, or at least a lawyer’s very expensive professional opinion. Even advocates who claim to speak for the public interest have said things like “Fair use is just the right to hire a lawyer.” Ouch.

Just as nutritionism leads you to the tender mercies of processed foods, copyFUD leads you to cramped guidelines and needless licensing. You cling to advice like “Fair use allows 10% or 1000 words, whichever is shorter,” or “Fair use is just an affirmative defense, so if you can buy a license, then you had better pay up.” According to copyFUD, the law, like the microscopic particles that make food good or bad, is not something an ordinary person can perceive or understand. Count calories, count words and pages, consult obscure legal-looking guidelines. Buy some low-fat Oreos™ and a blanket license from someone or other and everything will be OK. Anything else would be irresponsible.

The Root Cause: Money (duh)

Food

Like so many things, nutritionism and copyFUD have their roots in the machinations of people whose salary depends on your believing them. Pollan suggests that national policy may have been set on a course toward nutritionism thanks to the interventions of the meat and dairy lobbies into a congressional committee on US dietary needs in the late 1970s:

Responding to an alarming increase in chronic diseases linked to diet — including heart disease, cancer and diabetes — a Senate Select Committee on Nutrition, headed by George McGovern, held hearings on the problem and prepared what by all rights should have been an uncontroversial document called “Dietary Goals for the United States.”

…the committee drafted a straightforward set of dietary guidelines calling on Americans to cut down on red meat and dairy products. Within weeks a firestorm, emanating from the red-meat and dairy industries, engulfed the committee, and… [t]he committee’s recommendations were hastily rewritten. Plain talk about food — the committee had advised Americans to actually “reduce consumption of meat” — was replaced by artful compromise: “Choose meats, poultry and fish that will reduce saturated-fat intake.”

The change may seem subtle, but its effects were stark. As Pollan observes,

“the new language exonerates the foods themselves; now the culprit is an obscure, invisible, tasteless — and politically unconnected — substance that may or may not lurk in them called ‘saturated fat.’”

So long as the food could be manipulated or branded in a way to highlight this or that nutritional characteristic, there was no risk of anyone “eating less” (or buying less) of anything.

Fair Use

Similarly, when it came time to rewrite the copyright law (coincidentally around the same time Senator McGovern’s committee was meeting to delibarate about diet), the question of how to protect the interests of the public (especially teachers and students) presented a challenge to publishers and others whose bottom lines would swell if permission or payment was required for every new use of copyrighted materials. Publishers were ultimately able to convince key congressional committees to reject the call for a blanket exemption for educational uses and rely instead on flexible fair use. Some educators’ representatives then negotiated a set of non-binding “Guidelines” that, as McGovern’s commmittee had done, replaced broad and flexible principles (more on those later) with a strained and miserly gloss literally designed to ensure fair use would not touch anyone’s bottom line.

The House Judiciary Committee dutifully included these Guidelines in the legislative history of the Copyright Act of 1976, and they have haunted educators ever since. These Guidelines were initially characterized as a “safe harbor,” i.e., a bare minimum of agreed-upon uses, but thanks to the “right to hire a lawyer” copyFUD that quickly sprouted up around fair use, the Guidelines were often treated as the outer limits of fair use.

The Solution: A Cultural, Ecological Approach

Food

The antidote to nutritionism, Pollan says, is to take “a broader, less reductive view of what food is, one that is at once more ecological and cultural.” Healthy eating, Pollan argues, has always been a matter of being in the right kind of relationship with other organisms in a balanced ecosystem.

Species co-evolve with the other species they eat, and very often a relationship of interdependence develops: I’ll feed you if you spread around my genes.

These relationships are highly complex and involve interactions between multiple aspects of both the eater and the eaten. Most importantly, they are relationships to whole foods, not to nutrients. Their development over time has endowed us with a natural sense of which foods are good for us and when – what looks ripe, what smells delicious, and so on. Processed foods that give us heaps of this or that nutrient but eliminate others, or fool us with artificial color, flavor, etc., undermine that natural sense and lead us astray. Once we think of food at a macro level, we can see where the typical American diet has gone astray and start to see the kinds of changes that would bring us into a better relationship to our food.

Fair Use

What does a cultural, ecological, macro-view of fair use look like? Well, it’s exactly the view we find in the US Constitution, which instructs congress to make copyright and patent laws that “promote the Progress of Science and the useful Arts.” Progress in culture requires a legal system that allows ideas to move and new generations to make new uses of existing works. That, in turn, requires a healthy ecology of makers, fans, teachers, students, collectors, curators, distributors, describers, and on and on.

Like Pollan’s eaters, our senses of fairness, of legitimate community practice, the norms, values, and relationships that have grown up around production, consumption, and reuse of culture over time can give us intuitions about when use-without-permission will make the system work, and when it will undermine the system’s healthy functioning. To a much larger extent than the copyFUD acknowledges, we can intuit when a use is fair and when it is an infringement by engaging our sense of fairness, proportionality, and reason.

My version of Pollan’s epigram is, “Use fairly. Not too much. Have reasons.”

Use Fairly

Like “Eat food,” “use fairly” sounds so broad that it’s almost useless, but just a little elaboration is enough to give it some shape, and to connect it to the caselaw. The core of fairness in this context, as courts have told us from the beginning, is that a fair use is not a “merely superseding” use; in other words, a fair use takes from an existing work without displacing it (or its typical derivative works, like film adaptations and sequels) in the market. Some courts (the ones with a more economic orientation) talk about fair uses being “complementary,” which is a similar notion.

A book review is a good example of a non-superseding fair use. A good review can give deep insights into a book’s themes, strengths, and weaknesses, but it is still no substitute for reading the book. It’s a complement to the book—it helps readers to understand and appreciate the book, and (most importantly) to decide whether to read it. Authors, publishers, and reviewers understand that all are better off in an ecosystem where reviewers can copy from their subjects as part of their reviews without payment or permission.

Another touchstone of fairness, and in a way the converse of “not superseding,” is to do something different or new, and to add value with your use. Search engines are a great example of this. Search engines work by copying the full text of the works they index, and some have argued that this means that by definition they do not add value. In reality, of course, anyone who tried to use the internet before good search engines can tell you exactly what a good search tool adds to the pages it copies. And, importantly, a search engine doesn’t replace the pages it searches; internet users still click through to explore the results.

These two aspects of fairness—non-superseding and different/new/value-added purpose—are captured in the legal concept of “transformativeness.” Some critics of recent fair use case law have tried to portray “transformative use” as having gone too far and somehow swallowed the doctrine. In reality, however, “transformative” is just the latest short-hand for this very old notion of fairness. Courts and practitioners lost sight of these basic concepts for a while, distracted by copyFUD and an obsession with highly technical arguments about market failure. The courts’ turn to transformative use is, in its own jargon-y and technical-seeming way, a Pollan-ist return to fundamental principle. The world outside of the courts is now catching up to this shift.

Not Too Much

For a long time, from at least the late 1970s all the way into the 1990s (and in some places still today), “how much?” was considered the key question, if not the only question, to ask when deciding if a use was fair. If you used a sufficiently minuscule amount, your use might be fair. Once you crossed some arbitrary line, however, your use became infringing. This was the approach of the aforementioned 1976 Classroom Guidelines, which gave miserly minima for a variety of contexts—1000 words or 10% whichever is less, etc. More recently, the district court in the Georgia State University e-reserves case used a hard quantitative line as part (though not all!) of its fair use calculus; that part of the opinion was overturned on appeal.

Nowadays it’s clear that there is no simple answer to the question of “how much is too much” for fair use, and that’s a good thing. The appropriate amount depends on what you’re doing with the material. Sometimes, as with search engines or critical use of images, the entire work may be the appropriate amount. In other contexts, as in book reviews, the appropriate amount to achieve your new purpose will be much shorter.

One important final point on the question of amount: necessity is not the standard. Some guides say that you should use no more than is necessary for your purpose, but courts have said clearly and repeatedly that the question of amount is less miserly than that. “Not too much” captures it nicely: it should be an amount that makes sense in light of your purpose.

Have Reasons

This last point is a bit “meta”—it’s not so much about how to know your use is fair as it is about how to be prepared to defend your use if there are ever questions or concerns. In a way, it amounts to not much more than “Be thoughtful.” But, if you want to be more specific, you should be prepared to account for your use with a clear story addressed to the first two parts of this epigram: Why is your use fair in a colloquial sense—not a mere substitute, but something new and valuable in its own right? And why is the amount you used not too much, given your purpose?

Having reasons is easier when you can point to community practices that help explain at a high level why certain kinds of recurrent uses are typically fair, and ways to tailor your use to stay within the bounds of community norms.

Conclusion

So, that’s it. Use fairly. Not too much. Have reasons. In some ways it’s not as “easy” as counting words or paying for potentially needless licenses. But, like buying, preparing, and eating good food, making healthy fair use is deeply rewarding. It keeps the cultural ecosystem in balance, too.

Brandon Butler is Director of Information Policy at University of Virginia.  There he works on implementing programs to guide the University Library on issues of intellectual property, copyright, and rights management for scholarly materials. He is also Practitioner-in-Residence at the Glushko-Samuelson Intellectual Property Law Clinic at American University’s Washington College of Law. Before that, Brandon was Director of Public Policy Initiatives at ARL from 2009 to 2013.