Most recently in our CIU111 class, we have been discussing Copyright, and how it affects us as content creators. If you have been on YouTube any time in the past few months, you’ve likely heard of or seen videos discussing “fair use”. The subject of Fair Use and more broadly, Copyright are contentious and carry significant consequences for the future of YouTube and creators in general.
Copyright protects creators from having their work stolen from them. It sounds rather simple, but the definitions are quite vague. For example, what constitutes a “work”? Is it the finished product? Is it the conceptual idea of the product? Does Copyright apply if two people have the same idea? What about if you work as a programmer, and you implement the same system twice, but these two systems are for your previous and current employers. Are you in trouble for a breach of copyright? Before we break it down, we must examine the key terms I will be using for this discussion. Copyright is the “the exclusive and assignable legal right, given to the originator for a fixed number of years” which means that copyright protects any creative work. Intellectual property is an “intangible property that is the result of creativity, such as patents, copyrights, etc.” which are the properties where our creative ideas manifest, such as a video game franchise, comic book heroes, etc. The creation of something immediately enables rights under copyright. Similarly, patents are used for copyright protection of inventions. Other examples are those we see in video games, where a developer might unveil a “new IP”, or “new intellectual property” whereby announcing a new game franchise. In the case of games, this means that the developer has a new creative work, which copyright law will protect. Finally, the topic for which stirred this discussion surrounds the concept of “fair use” the idea that – as long as something has changed – a creator can directly derive their work from another. Often, fair use is employed by YouTube’s creators. As I stated before, fair use is the idea that someone’s creative work can be derivative of someone else’s. Disagreements with regards to fair use often occur within “Let’s plays” – videos where creators will record themselves playing the game.
Let’s play culture is a thriving community of developers, creators, and viewers. Only recently have confusions and contentions regarding fair use arose after YouTube’s copyright infringement system was abused. YouTube – to protect its copyright holders – has a system for the removal of infringing content, called a DMCA takedown, This form of takedown complies with the Digital Millennium Copyright Act. A DMCA takedown will remove an infringing video from YouTube, while also placing the channel’s copyright stance in poor standing, placing a “strike” on the channel. Too many strikes and the infringing channel gets deleted. The benefit of this system is that it is effective – copyright holders can quickly remove infringing content, such as if someone uploads a movie or TV show onto YouTube. The downside of the system is that it is too easy to use. YouTube features another system for creators to manage their copyright – ContentID. ContentID is a system whereby creators can detect if their content is being used elsewhere – usually music and video. YouTube will automatically detect audio and video that it flagged, and allow the original creator to extract the AdSense revenue from the infringing video, mute, block and track the video in question.
Fair Use dictates that content may be reused in other content, so long as that content is transformative. For example, showing parts of a movie in a review is considered transformative because the film isn’t uploaded in its totality and is being used to demonstrate the points that the review makes. A similar principle is true for Let’s Plays, where playing a game is deemed “transformative” content. The distinction between movies and games is that a content creator can play the entire game back-to-front, and the experience of playing that game is considered “transformative”, thus protected under Fair Use. The ease of use of YouTube’s DMCA Takedown system means that developers can abuse it to remove videos that they don’t like – with little recourse on their part. #WTFU – “Where’s the Fair Use” was born out of the unrest within YouTube’s community as its Takedown system was abused, removing Protected videos as a means weapon to punish the creators.
The history of Fair Use abuse. Most commonly, a DMCA takedown strike can be issued against a critic by a creator who disagreed with their practice, their content or their misunderstanding of copyright law. Sony Pictures issued a DMCA takedown to Blender Foundation’s short film Sintel (2014); however, Sony Pictures had no legal merit to the movie whatsoever. Furthermore, Fair Use was dragged into the gaming spotlight when Wild Games Studio issues false copyright takedowns against Totalbiscuit’s video “WTF is: Day One: Garry’s Incident”. The video’s removal sparked outrage from the gaming community because the takedown was falsely used to censor Totalbiscuit’s negative critique of the game. A similar situation happened against reviewer and critic Jim Sterling, where Sterling published his first impressions of Digital Homicide’s (then called Imminent Uprising) game, The Slaughtering Grounds. Digital Homicide issued a Takedown notice against the video – an illegitimate claim – which removed Sterling’s criticism for 14 days. Because Sterling disputed the claim, which Digital Homicide was unable to appeal further (which would have involved taking Sterling to court), the video has been reinstated. Fair Use abuse in this manner is not new and includes many more spurious claims of videos by popular YouTube creators like Totalbiscuit with Guise of the Wolf, Jim Sterling again with the Greenlight trailer to Skate Man: Intense Rescue and I Hate Everything with his critique of Cool Cat. Finally, after videos by NostalgiaCritic, Jim Sterling, Totalbiscuit, and other YouTube celebrities called YouTube to protect its creators with #WTFU, they finally listened.
YouTube was mostly silent during this controversy before revealing the YouTube Fair Use Protection Program in 2015. The YouTube Fair Use Protection Program protects developers from Fair Use abuse by upholding rightful videos, and pledging up to one million dollars in legal fees to battle frivolous Fair Use infringement claims in court. Jim Sterling’s critique of the Steam Greenlight trailer for Raging Citizens and The Simplest Game was issued a DMCA takedown, which YouTube rejected and protected his video, among three others. The Fair Use Protection Program is a sign from YouTube that they are listening to creators, and want to protect their rights
With YouTube’s support, Fair Use abuses could become a thing of the past. As of late, YouTube has not committed to changing the DMCA takedown system, which still enables spurious content claims to take place, however, YouTube can shoot down these claims and provides the money to protect its videos in court. YouTube has the responsibility to do better by its creators, in the future, there’s hope that creators might finally see the action they desire.
DMCA Horror Stories. (2016). Takedown Abuse. Retrieved 24 June 2016, from https://www.takedownabuse.org/stories/i_hate_everything_vs_cool_cat/
Fair use – YouTube. (2016). Youtube.com. Retrieved 24 June 2016, from https://www.youtube.com/yt/copyright/fair-use.html
Kalia, A. (2015). YouTube Backs Its Users With New Fair Use Protection Program. Electronic Frontier Foundation. Retrieved 24 June 2016, from https://www.eff.org/deeplinks/2015/11/youtube-backs-its-users-new-fair-use-protection-program
McFist, G. (2016). Tay.kinja.com. Retrieved 24 June 2016, from http://tay.kinja.com/totalbiscuit-fights-against-total-boneheads-update-1523253478
Stim, R. (2013). What Is Fair Use?. Stanford Copyright and Fair Use Center. Retrieved 24 June 2016, from http://fairuse.stanford.edu/overview/fair-use/what-is-fair-use/
The Jimquisition,. (2016). The Slaughtering Grounds. Retrieved from https://www.youtube.com/watch?v=VfI7pAaOH9c
The Jimquisition,. (2016). YouTube Fair Use Protection Program. Retrieved from https://www.youtube.com/watch?v=w-UgOXP82UI
What is Intellectual Property?. (2016). Wipo.int. Retrieved 24 June 2016, from http://www.wipo.int/about-ip/en/