Has the fat lady finished singing at YouTube?

YouTube has recently started muting videos with commercially available music (see the notice at the bottom of the video screen). 

It’s an interesting approach to a complex issue and not the first time YouTube has had to confront the music copyright issue (for example, “Let’s Go Crazy”, and the Obama parody).  

Music is protected by copyright and reproduction of a musical work without authority will be an infringement … most of the time.  Fair use of copyright material is permitted in many common law countries.  Fair use permits use of a copyright work without authority for a limited number of purposes, such as review and comment, news reporting, teaching, research and parody (but the scope of those is different in each country).  The categories are narrow and sometimes determining what is fair may be a little counter intuitive. 

YouTube could review each video and have different rules depending on factors such as the country in which the copyright was created, the country in which the video was made, where it’s being viewed, where it’s stored, the countries in which YouTube undertakes business,  the countries in which YouTube wants to undertake business, etc, etc.  Obviously with the number of videos available on YouTube, while possible, it’s just not practical.  So at some point YouTube needs to make a decision on how it balances the risk of being sued by a copyright holder with providing a compelling service consistent with end-user expectations.  Achieving that balance in a volume oriented, user content driven service is a really difficult task. 

With the example at the top of this post YouTube seems to be on fairly safe ground.  But as one forum post pointed out, one of YouTube’s most popular videos “Evolution of Dance”  (with over 110 million views) contains many popular commercial music tracks spliced into one 6 minute video. 

It doesn’t really have the same impact without sound…


5 Comments on “Has the fat lady finished singing at YouTube?

  1. YouTube doesn’t actually mute the videos; it gives the video uploader the option to mute the video rather than have it taken down.  In the US, fair use is used as a defense to infringement once in court (there is a debate about whether it is actually an exception or a defense to infringement).  Most YouTube posters don’t have the means to slog into court to defend their probably fair use uses.  Many choose to simply silence their videos rather than have them removed.For more info, see: http://news.cnet.com/8301-1023_3-10142694-93.html?part=rss&subj=news&tag=2547-1_3-0-20

  2. Hi goldenrail
    Thanks for the link and your comments. 
    Yes, giving users an option to mute the video has been around for a while (and YouTube’s technology for identifying potentially infringing videos is really interesting).  However, the recent breakdown in licensing discussions between Warner Music and YouTube has (reportedly) resulted in YouTube proactively muting videos.
    This action was foreshadowed early in December 2008 – see http://news.cnet.com/8301-1023_3-10127666-93.html?tag=mncol;txt
    “Fair use” is characterised in similar ways in the US and Australia:
    US – “…fair use of a copyright work … is not an infringement of copyright”.
    Australia – “A fair dealing [with a copyright work] … does not constitute an infringement of the copyright in the work”.
    Both are to be raised by a defendant in response to a claim of infringement.  I understand the discussion in the US relates to whether fair use should be a “right” (with similar standing to the exclusive rights granted to a copyright holder) or a “defence”.  What’s your view?

  3. I’m actually reading the pleadings from Lenz v. Universal Music Corp. (the Prince v. dancing baby case, 572 FSupp.2d 1150) right now and a lot of it turns on the issue of whether or not fair use is a defense to infringement or not an infringement at all.If we take the debate to the level of right verses defense I’d have to lean on the side of it should be a right – in the sense of the way the US Constitution outlines rights in the Bill of Rights, meaning a negative right to be free from others interfearing with your ability to use content in a fair use way rather than a positive right of being able to create.  The way the law has been working in practice (at least from my understanding) is that fair use is brought up as a defense to allegations of infringement (regardless of whether it’s technically a defense or a non-infringing use).  Because the content creators have much more economic (and social, in some circles) power than the users, the users often don’t get a chance to claim fair use.  So the content creators can use copyright as a bludgened to stop any uses of which they do not approve, fair use or not.  Without giving fair use the power to fight back (perhaps by looking at it as a right), it’s basically useless.

  4. For those that might not know the full details, the Lenz v Universal Music case related to a baby dancing to a (very short and hard to hear) soundtrack of Prince’s “Let’s Go Crazy”.  It was removed from YouTube after YouTube received a DMCA takedown notice from Universal Music (who has always insisted that it only acted on Prince’s demand).
    The US DMCA takedown process has some built-in safeguards aimed at preventing the abuse of takedown notices by copyright holders.  Essentially, before sending a takedown notice, there needs to be a good faith belief that the content is not authorised, including by law.  Relevant to this matter, the judge considered that all aspects of copyright infringement (including whether the use was a “fair use”) should be taken into account in order to form a good faith belief and before sending off a takedown notice.  Such a position makes sense – a safeguard which didn’t consider fair use wouldn’t be very fair at all.

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