YouTube announced its new and “improved” copyright policies yesterday, and it’s a mixed bag for YouTube users: they have a new opportunity to remove strikes on their accounts, but they have to watch some copyright propaganda first.
First, credit where it is due: YouTube is doing the right thing by jettisoning its one-size-fits-all three strikes termination policy. As YouTube recognizes, legitimate users may nonetheless get hit with takedown notices, and a repeat infringer policy should account for the fact that “there are different degrees of on-line infringement, from the inadvertent and noncommercial, to the willful and commercial.” We’ve suggested broader changes, but this is an important step in the right direction. We're also glad to see that the re-vamped “Copyright Education Center” contains good resources on fair use.
However, YouTube is also now requiring users who receive takedown notices to go to “copyright school," and that school has a pretty misleading curriculum.
As an initial matter, if YouTube is going to ask users to learn more about copyright when they get a takedown notice, they should require the same of rightsholders whose takedowns are disputed. As we have been reminded all too often, many content owners are badly in need of copyright education.
YouTube's lesson plan is equally troubling. Taken together, the materials send a strong message to users that they will get into legal trouble if they post anything other than content that is entirely self-created and/or drawn from the public domain – despite the multitude of important transformative uses that are permissible under the law and a fundamental part of our cultural experience.
Users are first asked to watch a short movie which celebrates avoiding legal trouble by “making your own video” – and it is clear that “your own video” does not include mashups and remixes. Fair use gets short shrift -- instead of explaining the term and how it might apply in various circumstances, the video simply shows users a short legalistic blurb (with a sped-up voiceover) and tells users who have any doubt to ask a lawyer. They also better consult a lawyer before sending a counter-notice: users get a stern warning that misusing the counter-notice process can get you in “a lot of trouble.” (The same applies to folks who send improper takedown notices, but there's no mention of that.) The video concludes by congratulating the protagonist for making a video with 100% self-created content. “That’s more like it!” says the narrator.
Taken as a whole, the video leaves the impression that there’s something legally wrong (or at least highly risky) about making videos that build on existing creative works – no matter how transformative. Good thing the amazing folks who created the videos compiled in our test suite didn’t go to YouTube's copyright school, or they might never have dared to make them – and we’d be the poorer for it.
The quiz that follows continues the theme and adds to the confusion. For example, in case users have not yet gotten the message, one query asks users to agree that “Creating 100% original new content for YouTube will help to protect you against claims of copyright infringement." Many users will take this to mean that posting anything else will invite a takedown, or a lawsuit. Another query gives users the impression that they can only send counter-notices if they have permission from the copyright owner to use a copyrighted work (“Q: If my account is terminated for multiple copyright violations, I can send a counter notification to reinstate the account even if I have no permissions from the copyright holder to use the content.” A: “False. The counter-notification process may only be used in cases of mistaken identification or to claim that the content was not infringing.”) If a use of third-party content is authorized by law, e.g., fair use or de minimis, there’s no need to ask permission -- but that's not what many users will believe after they take the quiz.
We're all in favor of copyright education. But YouTube needs to develop a new curriculum that helps users -- and content owners -- understand what's possible, not just what's forbidden.