YouTube announced that it will “offer legal support” to a small set of videos that it thinks are “some of the best examples of fair use on YouTube” and “represent clear fair uses which have been subject to DMCA [Digital Millenium Copyright Act] takedowns.”
Many people complain of abuse of the DMCA process and intimidation from copyright holders. The threat of litigation and statutory damages cause most people hit with a DMCA takedown to accept it without much more than some grumbling (usually in blogs and comment sections). The costs and risks involved simply far outweigh any potential benefit to challenging the takedowns for most individuals.
However, with the support of a company like YouTube, some of these takedowns may actually be challenged in court. This would be the best case scenario as new case law would emerge in an area that has largely been governed by private DMCA takedown procedures. A safeharbor provision in the DMCA provides content hosts, such as YouTube, with immunity if they remove infringing content after a complaint. Normally the content is removed and that’s the end of it, unless the content provider chooses to challenge the takedown.
YouTube’s presence should serve to more adequately balance the relative resources of the parties involved. To be sure, some case law has emerged such as the recent decision by the 9th Circuit Court of Appeals holding that copyright holders are required to consider the existence of fair use before sending takedown notifications. That’s all well and good, but if the cases never make it to court because of the size of the parties involved and a simple cost-benefit analysis, then the legal requirement has little effect. That case involved Universal Music Group’s takedown notice for 29-second clip of a toddler dancing to a Prince song (the song itself is barely intelligible). The mother that posted the video didn’t take on Universal Music Group alone, either. The Electronic Frontier Foundation offered pro bono legal counsel to make the case possible. The fact that this particular case began in 2008 and will now go back down to the district court for further proceedings shows just how important resources are in establishing case law.
A second best scenario would be a change in the DMCA takedown culture. Copyright holders may adjust their behavior knowing the scales are more balanced. This wouldn’t result in case law that would clearly establish the rules of the game, but it may result in a more considered approach to takedown requests that infringes less on free speech. If other content hosts stay out of the fray, then this may have limited impact on overall use of the DMCA notice and takedown provisions.
The publicity involved in an actual trial may prove sufficient incentive for copyright holders to adjust their behavior and focus on genuine instances of copyright infringement. That said, the Electronic Frontier Foundation already hosts a Takedown Hall of Shame (most of which involve examples of political speech, criticism, or abnormally aggressive use of the takedown process), yet many on the list have yet to alter their behavior.
Of course, YouTube has an interest in all of this. Those videos provide advertising revenue that YouTube shares with the provider. It’s actually somewhat surprising that more content hosts are not providing this type of support already. YouTube cherry picks “some of the best examples of fair use on YouTube” which probably means their legal team has determined there is little likelihood that they would proceed to trial once the copyright holder knows that they won’t be able to outspend the individual content provider. I wouldn’t be surprised if all that is required is a letter on YouTube letterhead stating their intent to support the video to get the copyright holder to retract the takedown request. There is probably little risk for YouTube, but some great publicity and perhaps greater revenue from a decrease in takedown requests.
It will take time for the effect of YouTube’s new stance, if any at all, to emerge. However, it is a step towards balancing the scales so that a fairer system can develop.