dmca-brokenCourt’s language on “fair use” won’t change fight against online piracy

Indie filmmakers and musicians who find their work uploaded to YouTube without permission are probably pretty familiar with sending DMCA notices to Google.  I know I am.  I also know that the 9th Circuit U.S. Court of Appeal’s decision in the EFF’s infamous  “Dancing Baby” lawsuit will have ZERO impact on how I approach sending those notices moving forward.

In the wake of Monday’s decision, much has been made (and written) about the potential impact it will have on content creators who must use the DMCA to remove infringing/pirated copies of their work online.  Debate centers around the court’s interpretation of “fair use” and whether a rights holder must consider whether fair use applies before sending a takedown notice. Fact is, I already do that each and every time I send a notice.

When I find a full copy of our film on YouTube, I send a takedown notice.  When I find our film uploaded in parts on YouTube (part 1, part 2, part 3, etc) I send a takedown notice.  When I find sections of our film more than 3 or 4 minutes long uploaded on YouTube, I typically send a takedown notice.  When I find someone has edited and uploaded a mashup using short clips from our film I generally just monetize the video (usually the music is owned by someone else) and leave the clip alone.  As much as I believe that the DMCA is broken--and weighted against creators–it’s the only tool we have to protect our work from online theft so I use it…often.

In terms of judging whether something is “fair use” I consider how much of our film is used and the way it’s used.  While I’m pretty well aware of what “fair use” means, I’m sorry to say that those who upload content to YouTube are not.  In a number of instances YouTube users have uploaded copies of our film in its entirety.  When I find these copies I immediately issue a takedown.  No brainer right?

Many YouTube users don’t understand “fair use”

Well, apparently many YouTube users don’t have a clue as to what fair use means since some protest my takedowns saying they have the right to upload my film because doing so is “fair use.”  When this happens I reinstate my claim and send them a polite note explaining that they are wrong and that it would be a good idea to review YouTube’s own explanations as to what fair use actually means:

The four factors of fair use

In the United States, fair use is determined by a judge, who analyzes how each of the four factors of fair use applies to a specific case.

1. The purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes

Courts typically focus on whether the use is “transformative.” That is, whether it adds new expression or meaning to the original, or whether it merely copies from the original. Commercial uses are less likely to be considered fair, though it’s possible to monetize a video and still take advantage of the fair use defense.

2. The nature of the copyrighted work

Using material from primarily factual works is more likely to be fair than using purely fictional works.

3. The amount and substantiality of the portion used in relation to the copyrighted work as a whole

Borrowing small bits of material from an original work is more likely to be considered fair use than borrowing large portions. However, even a small taking may weigh against fair use in some situations if it constitutes the “heart” of the work.

4. The effect of the use upon the potential market for, or value of, the copyrighted work

Uses that harm the copyright owner’s ability to profit from his or her original work are less likely to be fair uses. Courts have sometimes made an exception under this factor in cases involving parodies.

I must say, however, that as a filmmaker I’ve not really taken advantage of fair use.  When I co-directed and produced the documentary Fighting for Our Lives-Facing AIDS in San Francisco  we used  short video and music clips from various secondary sources.  Sometimes the video clips we used were only a few seconds long, but we always asked for permission (in writing) from the creator(s).  Sure, we probably could have used most of this material without asking, but as a filmmakers we respected the work of other creators.

Just last week I received a request from from a national network for permission to use some of our clips from Fighting for Our Lives for a new documentary on the AIDS epidemic that’s being produced.  As with past requests for footage, I will say “yes” because I do believe that there’s value in sharing the precious pieces of history we recorded during the height of the AIDS epidemic in the 1980s.    However, if someone grabbed bits and pieces of our documentary without bothering to ask, I would not be pleased.

Over the years respect for the work of creators has been undermined by an online ecosystem where anything digital is assumed to be ripe for the picking.  Those who routinely rail against creators and copyright are saying the Lenz case decision didn’t go far enough, but I would flip it around and propose that the court should have asked whether YouTube users “unambiguously contemplate” whether a clip would infringe someone’s copyright before uploading content to the site?

When I teach my film students about copyright I start by asking them if any of them have ever downloaded music or movies from the internet.  Not surprisingly, most sheepishly raise their hands.  However, as the semester progresses and they learn that it will be their work that’s at stake, perspectives gradually shift.  My students realize their work has value and the effort that went into creating should be honored.

Perhaps if we stop justifying our lack of respect for creators by demonizing the business of creation ( i.e. the record companies and Hollywood studios) and start appreciating (and rewarding) the work done by creators–both individually and collectively–we won’t have to depend on courts to determine what’s fair.

The DMCA is a dated and dusty law and puts an undue burden on creators, but until Congress takes action, it’s the only tool creators have to protect themselves.The silly dancing baby clip in question was actually allowed to remain on YouTube after a counter-notice was submitted because the creaky system had actually worked as intended….much ado about nothing–save for the fact folks at the EFF saw an opportunity to further their anti-copyright agenda.

Has this decision made it even harder for artists to compete in the digital age?  Perhaps–but for me, and probably most everyone else, it’s merely business as usual.  I’ll continue to consider fair use before I send that takedown notice on YouTube (or elsewhere) and in doing so,  give more thought to the process than those (who routinely flout copyright law) do at the other end.