YouTube's new Fair Use Protection Program

Today YouTube announced a new program to help its users stand up to bogus copyright threats from content bullies. Under the program YouTube will offer select users, with strong fair use cases, who have a video taken down under the DMCA two options:

  • Option 1: Users can follow the current process of filing a counter notice and have the video put back up worldwide in 10-14 days as required by law.
  • Option 2:  Under the new option, users will be able to keep the video up in the US. Google will also provide a vetted list seasoned copyright litigators and up to one million dollars to help with legal fees if they are sued.

While we wish the program didn’t make users choose between keeping the video up worldwide or just in the US, we understand that much of it is a result of the messy state of international copyright law. And we hope that as the program iterates it will be able to expand its scope and hopefully make some great case law reinforcing the legal consequences of sending a bogus takedown in the process. We also like the idea of having a "demo reel" of fair use examples to help YouTubers learn about fair use. You can see the first class of videos YouTube has selected for their fair use program over on YouTube here.

Although we want to applaud YouTube for its program to help users fight back against bogus DMCA takedowns, there is one giant category of claims that this program won’t help with. That is claims made under YouTube’s ContentID system. That system is also often abused by content owners looking to censor speech or individuals seeking to abuse the system to take revenue from creators. For creators that rely on fair use, YouTube's own internal appeals system is their primary recourse because the legal consquences of abusing the ContentID system are far less clear.  As large content holders gain more leverage over user-generated content sites through the threat of crushing litigation, we’re going to start seeing more systems like ContentID pop up that lack critical user safeguards (including legal consequences for abusing the system) present in the DMCA. We don’t point this out to knock YouTube’s new program but instead as a reminder of how far we have to go to truly reform copyright such that it can no longer serve as a tool for those who seek to stifle speech.

We’ll be watching YouTube’s new program with great interest going forward.  If you have thoughts or questions about YouTube’s new program feel free to reach out to us via our contact form.

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