San Francisco - Online video-hosting services like YouTube have ushered in a new era of free expression online, as well as vigorous copyright enforcement efforts. Today, the Electronic Frontier Foundation (EFF) and a coalition of leading public interest groups issued a "Fair Use Principles" document that sets out six concrete guidelines designed to minimize the collateral damage that copyright enforcement efforts may inflict on video creators who are "remixing" copyrighted material into new video creations.
Fair use is the copyright doctrine that permits unauthorized uses of copyrighted material for transformative purposes. Creators naturally quote from and build upon the media that makes up their culture, yielding new works that comment on, parody, satirize, criticize, and pay tribute to the expressive works that have come before. Consequently, much of the new "remix" creativity on video hosting sites like YouTube depends on fair use.
As part of their own "UGC Principles" effort announced last week, video hosting services and major media companies emphasized the importance of accommodating fair use. The "Fair Use Principles" released today propose detailed steps that content owners and video hosting services can take to make good on that promise.
"As video hosting services begin to implement copyright filtering technology, it is time to discuss concrete strategies to protect creative videos that remix material from movies, TV and popular music," said EFF Senior Intellectual Property Attorney Fred von Lohmann. "Our aim is to speak for the interests of the millions of amateur creators who are fueling the popularity of YouTube and similar sites."
Fair uses have been mistakenly caught up in copyright enforcement dragnets in the past. For example, earlier this year blogger Michelle Malkin's video about rapper Akon was erroneously taken down from YouTube after Universal Music Group (UMG) claimed copyright infringement. In that case, two excerpts from Akon music videos were embedded in a longer commentary about the rap star. Although UMG ultimately admitted its mistake, automated content filtering raises the possibility that commentaries like this might be blocked preemptively in the future.
With cases like this one in mind, "Fair Use Principles for User-Generated Content" describes six steps that service providers and copyright owners should take to minimize damage to fair use during copyright enforcement efforts. One key principle is "three strikes before blocking" -- verifying that the video matches the video of a copyrighted work, that the audio matches the audio of the same work, and that nearly all of the clip is comprised of that single work. In addition, if a video is blocked by a content filter, the creator should be given an opportunity to dispute the filter's determination.
To accompany the "Fair Use Principles" document, EFF has also posted a gallery of videos that could be jeopardized by automated copyright filters, in hopes that video hosting services and content owners will be able to test their filters against these fair use videos.
The coalition supporting the principles includes the Center for Social Media, School of Communications, American University; Program on Information Justice and Intellectual Property, Washington College of Law, American University; Public Knowledge; Berkman Center for Internet and Society at Harvard Law School; and the American Civil Liberties Union of Northern California. In addition, the Fair Use Project at Stanford Law School's Center for Internet and Society contributed to the development of the document.
For "Fair Use Principles for User-Generated Video Content":
For the gallery of fair use videos:
For more on fair use and free speech:
Fred von Lohmann
Senior Intellectual Property Attorney
Electronic Frontier Foundation