On Thursday, Google announced a new program that would take steps to protect YouTube video creators from overly aggressive copyright claims. Under this program, Google will select examples of legally protected "fair use" videos and agree to pay to defend those videos in copyright lawsuits.
That means if Google is asked to remove a video for copyright infringement that it believes is legal, it will not only refuse to remove the video, but will also pay the video maker's legal costs to defend their right to publish it.
The New York Times described the arrangement as an "unusual step of financially supporting YouTube creators so they can fight back." But it's really not so unusual. It's the latest step forward—though a massive step forward, to the tune of $1 million per video—of giving internet users back their legal rights in the face of a copyright content industry often determined to take those rights away.
Copyright is a legal right given to authors and artists, which generally makes it illegal to copy or distribute their original works without permission. This seems perfectly reasonable until you realize that every time you quote an article, reply to an email, repeat a joke, or do any number of ordinary things, you've engaged in some sort of copying or distribution. One article estimated that a hypothetical law professor, in a single day, would "infringe" copyright 83 times and owe $12.45 million for it.
That's an absurd situation, and the law handles it through an idea called "fair use." According to that concept in the law, many acts that would otherwise be copyright infringement are legal if they are "fair" in some sense. Fair use is what allows a newspaper to quote a source, a musician to make a parody of another song, and a VCR to make recordings of shows for later viewing.
But who's to say what's fair? In many cases fair use may be all but certain, but it can only officially be resolved through a court. Thus, judge and copyright scholar Pierre Leval lamented that "legal advisers can only guess and pray as to how courts will resolve copyright disputes."
This is the latest effort to even things out in a world where so far the scales have been tipped in favor of the copyright owners and against fair users. But it's not the only one
This was a source of real frustration for lots of creators. If, for example, a political comedy duo wanted to make a funny video of two presidential candidates singing a folk song, they would be forced to roll the dice and wait to be sued by the original songwriter. Worst case scenario, they owed up to $150,000 in statutory damages. Best case, they walk away—after paying possibly massive attorney fees. Even if a use seems obviously fair, the need to go through a full, expensive court proceeding to prove that fact presents a real risk to those creators. And it's a real loss to the entire public if creative commentary like JibJab's videos are shut down due to inability to defend against really questionable copyright claims.
That's what makes the new YouTube program so powerful. Video creators within Google's program receive extra assurance that their works won't cause them financial ruin. And on the flip side, copyright owners will think twice before launching a copyright lawsuit, knowing that a million dollars of legal firepower are on the other side.
This is the latest effort to even things out in a world where so far the scales have been tipped in favor of the copyright owners and against fair users. But it's not the only one.
Just two months ago, in the Lenz v. Universal decision, the Court of Appeals for the Ninth Circuit declared that if a copyright owner ignored fair use before demanding removal of a video, then the copyright owner could actually owe the video maker money for the mistake. It's not a perfect decision—indeed, the Electronic Frontier Foundation is asking that court to revise the decision to go further—but it's a strong signal. As law professor Lateef Mtima explained recently, after the Lenz decision, copyright owners who ignore fair use do so at their own peril.
That's a sea change from the world where the video makers and other creators of the world had to "guess and pray" about what a court would do, and how much it would cost to get there.
The idea of putting up the legal costs for a fair use defense has precedent too. In 2006, Stanford's Center for Information and Society founded its Fair Use Project to provide free or low-cost legal defense and advice to filmmakers and artists who relied on fair use in their works.
This is not to minimize YouTube's new program; it shows that it is part of a growing trend to give due value to fair use and to fair users such as creative video makers. One hopes that other services follow suit, coming up with new and creative ways to protect those users from improper copyright threats and takedowns. Because that's exactly in the spirit of fair use—in the spirit of artistic creation generally: that old ideas are built upon and transformed into new ones. That's what creates new works; that's what keeps the internet growing and moving forward.