Clips under 20 seconds, + clips for commentary/education

[Gary High-Fruit]

I had an upload blocked (contentID) for an 11 second clip of the Olympics. One problem is, I have to re author and re upload a 17 minute video when such a small clip should be allowed.

Also, I do commentary/education, and it helps to show the viewers clips. (it helps audience retention too). I have many videos with clips of Dr. Oz, and lately these videos are getting taken down, even tho the clips are under 30 seconds each.

"Fair use" is a real thing, and we shouldn't have to go to court (and be subject to the intimidation process) just to do my work of educating people on what's wrong with content on Dr. Oz's show.

I want to dispute the removed videos, and prevent it from happening again. What can I do?

 

[subversiveasset]

I think you have a misunderstanding of fair use. Yes, fair use is a thing, but fair use is an affirmative defense -- meaning that you use it in a court to defend against the accusation of copyright infringement. It doesn't prevent claims from being made against you in the first place.

There is no "bright line" safe harbor for time, either. So, I think there's a misunderstanding if you think that "under 30 seconds" automatically is OK.

Ultimately, fair use can ONLY be decided in a court of law. Anything else may be that the copyright owner doesn't want to go through the hassle, but it's not the same thing as establishing fair use.

That being said, whenever you get a block, you should have an option to dispute the claim (as long as you didn't delete the video). This will give the copyright owner a set period of time to respond, and if they don't, then the claim will be dropped after a period of time.

 

[Gary High-Fruit]

...the copyright owner doesn't want to go through the hassle, ..... then the claim will be dropped after a period of time.

If the copyright owner does want to follow thru, and I lose, do I get penalized? (at least by YT).
How can I be confident that the Olympic committee doesn't wanna drag me into court for their 11 second clip of beach volleyball women slapping each others butts? ... Or an even more serious case: Dr Oz desire to not be schooled by a Youtuber?

 

[subversiveasset]

If the copyright owner does want to follow thru, and I lose, do I get penalized? (at least by YT).
How can I be confident that the Olympic committee doesn't wanna drag me into court for their 11 second clip of beach volleyball women slapping each others butts? ... Or an even more serious case: Dr Oz desire to not be schooled by a Youtuber?

If the copyright owner does want to follow through, and you lose, then likely your block will become a copyright strike, which would not be good for your YouTube account.

You can't know for sure that the Olympic committee doesn't want to drag you into court. I mean, realistically, they don't want to spend the money either (even though they assuredly have more time/money to spend on things like this than you do.) I have personally never heard of someone actually going to court for this. But I wouldn't be so confident.

 

[Gary High-Fruit]

That's what I thought. Seems the individual has no power, even tho we might have the right to use clips, we are taking a risk. Seems YT shouldn't even bother having their system.

A Youtuber who isn't using clips of something popular, has a disadvantage over the competition who DOES. I'm already struggling. Big channels are breaking the rules, including the biggest. Sure Pewdi can buy the rights, but a big youtuber I know is breaking rules (even made a false DMCA claim). We're wondering how she's still up, and screwing other youtubers.

 

[subversiveasset]

I agree that the system is slanted against users, but I don't think it's really YouTube's fault entirely. Rather, it represents the biases of the larger copyright system. (YouTube has to take action if they get a DMCA takedown notice, for example. And while there are some court cases that suggest that copyright owners should consider fair use BEFORE issuing takedown notices...ultimately, the law doesn't really provide any punishments for copyright holders who issue too many claims or who don't take fair use into consideration before issuing a takedown notice.)

 

[Idec Sdawkminn]

One thing I'd like to clarify is that, technically, Fair Use isn't an affirmative defense. An affirmative defense retains that the action was taken and that it was illegal, but it excuses it and removes the negative consequences. Fair Use, on the other hand, is an exception to what Copyright law normally protects. If someone's use falls under Fair Use, then no illegal action or infringement ever took place. But it is similar to an affirmative defense in that it can only be determined in a court of law.

 

[subversiveasset]

One thing I'd like to clarify is that, technically, Fair Use isn't an affirmative defense. An affirmative defense retains that the action was taken and that it was illegal, but it excuses it and removes the negative consequences. Fair Use, on the other hand, is an exception to what Copyright law normally protects. If someone's use falls under Fair Use, then no illegal action or infringement ever took place. But it is similar to an affirmative defense in that it can only be determined in a court of law.

I can see you're channeling Lenz here. And I don't think we are in total disagreement, but even Lenz pointed the following out:

Universal’s sole textual argument is that fair use is not “authorized by the law” because it is an affirmative defense that excuses otherwise infringing conduct. Universal’s interpretation is incorrect as it conflates two different concepts: an affirmative defense that is labeled as such due to the procedural posture of the case, and an affirmative defense that excuses impermissible conduct. Supreme Court precedent squarely supports the conclusion that fair use does not fall into the latter camp: “[A]nyone who . . . makes a fair use of the work is not an infringer of the copyright with respect to such use.”​

I think that the whole "can only be determined in a court of law" part is enough to make it an affirmative defense under the first definition (that is, "due to the procedural posture of the case"). What is relevant to youtubers is that even if (per Lenz) copyright holders SHOULD be assessing fair use before they claim infringement, realistically, they aren't, so youtubers have to decide if they're willing to go to court over it -- even if they are confident they would win.

My thoughts are closer to the comments of Kevin Smith via Scholarly Communications @ Duke in "Free speech, fair use, and affirmative defenses"

"I can’t say it often enough — when one is sued for doing something one believes is actually allowed by the law, that “right,” whether it is free speech or fair use, is always presented in the form of an affirmative defense. All that means is that it is something which the defendant must raise to justify herself (something for which she bears the burden of proof), but these things are not rare, disreputable or frightening; they are the very rights that define our citizenship.

...

When we say something is an affirmative defense, all we are doing is indicating how it would be raised in litigation. Many of our most cherished freedoms would be raised as affirmative defenses..."​

 

[Idec Sdawkminn]

Yes, it is an affirmative defense by method of determination. But I just don't like the stigma that goes along with the term "affirmative defense". That would make Fair Use viewed as a less admirable thing like most affirmative defenses. I had a debate with someone on Reddit about this and the other person claimed it was an affirmative defense like self defense is for murder. In that case, you still committed murder and it was still illegal, but in that special case, it was ruled as a permissible illegal act. I argued that Fair Use was unlike that because a use that is Fair Use is not an infringement of copyright.

Do we disagree on any of that?

 

[subversiveasset]

Yes, it is an affirmative defense by method of determination. But I just don't like the stigma that goes along with the term "affirmative defense". That would make Fair Use viewed as a less admirable thing like most affirmative defenses. I had a debate with someone on Reddit about this and the other person claimed it was an affirmative defense like self defense is for murder. In that case, you still committed murder and it was still illegal, but in that special case, it was ruled as a permissible illegal act. I argued that Fair Use was unlike that because a use that is Fair Use is not an infringement of copyright.

Do we disagree on any of that?

Eh, I think that part of the stigma of affirmative defenses just occurs because of extra-legal gut reactions in criminal cases. So I'm not sure if that should change our determination here (firstly because it's extra-legal, but secondly because copyright infringement is generally not a criminal charge.)

But if a person is tried for murder (a particular form of criminal homicide) and their self defense claim is successful, then it's not true that they "still committed murder and it was still illegal, but in that special case, it was ruled as a permissible illegal act." Homicide is not always an illegal act. To the contrary, only criminal homicides (of which murder is a specific type of criminal homicide) are illegal acts, but a determination of self-defense means that someone didn't commit murder. While they still have committed homicide, it's justifiable homicide, which is not illegal (or even a "permissible illegal act.")

I mean, self-defense is an inherent right (see Supreme Court in Heller.) Ultimately, the Supreme Court thinks that self-defense is a right via the 2nd Amendment as much as free speech is a right via 1st Amendment. So self-defense acts are definitely lawful actions (even if yes, they result in homicide). The affirmative defense part comes into play in that if you are in a situation like this, you'll never get to that outcome unless you have a court decide it.

Here, the fact that a homicide occurred is not in dispute. In the case of using self-defense as an affirmative defense against a murder charge, one is not even disputing things such as malice aforethought. (So, it's not a negative defense that challenges the original claim that "he killed someone and had malice aforethought") Rather, self-defense is the introduction of additional facts that when accepted defeat the murder charge. "Yes, he killed someone and had malice aforethought, but that intention was in self defense, so it's not murder."

I think that's similar in copyright infringement and fair use.

No one is disputing that the copyrighted material was used without permission. So there isn't a dispute of existing facts that would, without additional facts, support copyright infringement. To the contrary, one asserts additional facts that defeat the copyright infringement charge. "He used copyrighted material without permission...but he [transformed the work/didn't use for commercial purposes/didn't use a substantial portion of the work/etc.,]"