Automated Circumventing of Fair Use Law on YouTube

[Iggy Autry]

This is more an academic curiosity than seeking legal help...

Question:

Would there be any way to take Youtube to court for creating an automated system for it and entertainment industry corporations to circumvent Fair Use and the legal rights of powerless individual Youtube users?

Someway somewhere in some court to bring this out in public to publicize the mind-boggling hypocrisy of Youtube...

I'm not particularly interested in whether a case would have a good chance of winning or not. I'd love to see legal activists do something like taking a massive class-action case of wronged individual users into some court somewhere in the world to bring attention to just how immoral and unethical Youtube has been its entire existence.

The Situation:

Youtube says that the automated system it set up was legally mandatory. It had to provide a way for the entertainment corporations to check if its Copyright material was being "illegally" used on Youtube.

As I understand the instructions Youtube put up concerning the basic process:

The automated system flags material that matches in a database copyright material owned by these companies.

The company can then apply its own automated system to notify Youtube's automation that it wants to claim Copyright Law infringement.

Then --- once the user is notified his clip has been flagged and removed from viewing - he/she can file a counter-claim in the system.

Now, as I remember it, the Youtube info page said --- submitting the user counter-claim invoked a legal proceeding. It became formal - legally speaking.

Then, the company would receive the counter-claim, and, it would have to physically review the material to determine if it wanted to formally take legal action to assert Copyright Law.

---At least that is how I read what Youtube required me to read when submitting my counter-claims.

But --- that is ----- NOT ---- what happened:

When I submitted my counter-claim, I was told I would hear from the company or about its decision within X number of days (about two business weeks). If I didn't, the case would be closed, and the video would be unlocked and the flag on my account removed.

Instead --- I got an email from --- Youtube - stating - Youtube staff had reviewed the case, and "It has concluded you do not own the rights to the material used." - so - the video would remain down and the flag in place. (Getting two more would result in the closure of my account and loss of all material submitted.)

---- What happened to the legal procedure?

---- What happened to Fair Use?

---- What happened to the company having to take the time - and spend the money - to use human eyes to decide if it felt my clip fit Fair Use or not?

Screw The Law (Again):

It seems to me - despite what Youtube says in its documentation about what they do and why they do it:

They have joined with the entertainment corporations to --- circumvent the courts and law - because they know there is nothing individual users can do about it.

When I was waiting for a legal response from the corporations - what I got was a generic Youtube message that refused to mention Fair Use at all.

I never claimed I owned the rights to the material used.

I claimed it was Fair Use - just as they allowed me to do when they said my formal counter-claim was initiating a legal proceeding - which was a lie. Youtube is not a court. Nor judge. Instead of putting the ball in the entertainment corporation's non-automated hands - Youtube just said the process was over. No law. No court.

Why I Think This Should be Noticed The World Over:

Think about the massive amount of money Youtube made for the people who ran it early on. Just think about that a good amount of time:

They got fabulously wealthy by ---- raping Copyright Law wholesale - because they knew there was nothing courts or the corporations could cost-effectively do about it given the nature of the Internet and technology at the time and the capabilities of the courts and the limits in laws that tightened Copyright enforcement and so on.

It was the Wild West.

Full-length movies - even ones currently in the theaters - and whole TV episodes remained online.

Then, after Youtube made its billions, it became corporate itself.

Did that mean --- it became ethical and moral and did its best to follow laws?

No!!!

We are seeing --- it just did a 180 degree turn in illegality!!

It has now joined hands with the very industry and corporations it raped for so many years - to create another automated system designed to --- IGNORE THE LAW AND COURTS!! Why? Because the people they want to screw now are - again - virtually powerless to stop them...

Conclusion

When I think about how Youtube made those guys so vulgarly rich....

When I think about how they are now using their technical expertise to automatically stomp on all individual users - with no consideration of what the law says.

The hypocrisy is mind-boggling...

And I believe - the amount of money they made flaunting the law and courts around the world means --- activists should care about this.

Someone or some groups need to work together to organize the millions of individual users the Youtube and Google of today are laughing at as they delete their accounts wholesale and thumb their nose at the law again.

There should be payback for such hypocrisy - even if justice is too unlikely...

[jk]

---- What happened to Fair Use?

I suspect you do not know what fair use actually allows. I suspect you also do not understand that fair use is an affirmative defense if sued and until you are sued, provides you with no rights.




so, please describe what you are doing that you claim is allowed under the fair use doctrine.

[Iggy Autry]

Yes, I am no legal scholar or even novice. I am largely going by what Youtube said itself.

If Fair Use is not actual law but a legal means of defense, then I see it offers no legal means to attack what Youtube is doing.

Is there nothing in the laws to penalize abuse of Copyright Law? Or what Youtube is doing?

Reiteration:

Youtube's instructions and info pages connected to a user being flagged by the automated system said in part that the user could file a counter-claim that included an explanation of why my clip did not fall under Copyright Law or was allowed within it (Fair Use).

Youtube said such a counter-claim would be considered initiating a legal procedure. The company that filed the complaint with Youtude (using an automated system) would then have to decide whether to exercise its copyright by filing a legal claim against my video clip.

Then, the courts would be the ultimate authority of whether it violated copyright or fit Fair Use.

Nope:

That is not what happened.

Instead, I got back a simple email from Youtube saying its staff had determined I did not own the rights to the material - end of discussion.

Conclusion:

I don't care about my pitiful little, short clips. I will not lose sleep if Youtube deletes another account just like it did a previous one - ignoring what it said the procedure would be exactly like in the case above.

I do think some activists somewhere should care...

Isn't Fair Use ultimately about Free Speech (and Free Speech Law)?

It is my understanding, Fair Use was left vague on purpose, because the crafters of Copyright Law were weary of too broadly infringing on Free Speech. That individuals should be able to use copyrighted material in some circumstances, and the court should be the one to have the authority to determine these issues.

I fail to see how what Youtube is doing with corporations is a real legal application of Copyright Law.

I fail to see how what it has set up with the entertainment corporations is not a means to circumvent the courts. It has given the power of those corporations to have material easily, effectively, and automatedly yanked off Youtube wholesale with no consideration of the materials legal standing.

If there are no laws to address such a blatant misuse of Copyrights - and the infringement of what Copyright Law says about Fair Use - then maybe their should be.

And when I think about how that entity made those guys so very wealthy, it pisses me off...

To me, this hypocrisy rises to the level - even if it is not technically illegal - Youtube behaving just as immoral and unethical as it always has - should result in public opinion being raised against it.

[jk]

they are complying with the laws in place.

do a little reading on a dmca take down notice and you will see why youtube is going to comply with such a notice. if you believe you have a right to post whatever was taken down, there are provisions in place to dispute the take down.

f there are no laws to address such a blatant misuse of Copyrights - and the infringement of what Copyright Law says about Fair Use - then maybe their should be.

there is so when/if you are sued, you can invoke such a defense if you believe it is applicable

Isn't Fair Use ultimately about Free Speech (and Free Speech Law)?

Not even close. You have copyright law all backwards.

let me ask you this: if I came and took your car and used it as a taxi, would that be ok with you? Probably not.

copyrights are a lot like that car. If I own them, I get to control what is done with my works. In some cases, the courts have determined that it is ok if somebody uses my car but in very limited situations. Now, if somebody thinks they have a right to use my car and they do, well, if I don't want them to, I get to sue them. That is where fair use comes into play. If the person that is using my car thinks the law allows them to do what they are, the assert a fair use defense.
'

and then, yes, a court decides who is right so they already have that part taken care of for you.


here, read this:


http://www.copyright.gov/fls/fl102.html

that is the copyrights publication on fair use (or one of them actually). It might help you understand what fair use is and why what you are doing is not likely to be covered under fair use.

[jk]

so, have you filed a dispute with the take downs? What was the result?

Copyright Law protects the creators of intellectual property from having it blatantly ripped off - but as I understand it - the law provides loosegrounds by which copyright permission does NOT have to be sought or gotten if it falls within Fair Use.

actually, you aren't understanding copyright law. It is not to prevent anybody from being blatantly ripped off, well that too but the basic tenet of copyright law is:

I OWN THE WORK and I have a right to control it.

if anybody uses my work without my permission, they best have a valid legal argument as to why. Fair use is one of those few exceptions but again, fair use is an affirmative defense to be used in a court of law.

so, have you filed disputes of the take down notices and if so, what was the result.



also, understand that as a private entity, Youtube has no obligation to allow you to post anything at all and they can refuse to post anything they choose to not post. That is some more of those darn Constitutional rights you are hollering about.

[Iggy Autry]

[A previous longer comment I posted to your 2nd to last reply got fouled up somehow with the reply below to your last, so I had to delete it. I think there is enough clarity in the thread for what I'm saying.]

I understand what you are saying. And I did read that link or one very similar to it after my original Youtube account had items flagged, and I filed a counter-claim, but then out of the blue, the account was deleted.

I think you are missing what I'm saying.

Copyright Law protects the creators of intellectual property from having it blatantly ripped off - but as I understand it - the law provides loose grounds by which copyright permission does NOT have to be sought or gotten if it falls within Fair Use.

A movie is not your car you bought or manufactured yourself. If I steal the DVD of Iron Man you bought, then the car analogy fits, but were are no longer talking about legal copyrights.

If a teacher - say - shows a film in class, as a treat, then the studio can sue for copyright violation - which I believe Disney has done a few times - or at least threatened to do to the point the teacher was fired or the school/school board made amends.

If the same teacher - however - shows the same film in class as part of an educational product - like a lesson plan designed to teach the students analytic viewing skills, which they will then turn into a written product - a film review of their own - then - Disney could still sue - but - would likely lose under terms of Fair Use.

Which is why the guys at redlettermedia could end up establishing a nice website, complete with donation links and advertising apps, thanks to a very long, detailed analysis of Star Wars I that went viral - and why they can still get away with using many extended scenes and more from Hollywood movies they review.

Point:

I did not claim the copyright holder has no right to file a legal claim against ANY file on Youtube it believes violates that copyright.

I did not say I was angry at Youtube because it made it so easy for such a claim to lead to the file being removed from viewing.

I am saying Youtube claims the copyright holder will have to file a legal claim against the user in order to move the case forward if the user files a counter-claim within the system.

And that would make sense - given what the law that forced Youtube to design a system said - and what Copyright Law says.

But that is NOT what happens.

What happens is ignoring the courts and the copyright holder's need to file a legal action.

[jk]

here is the answer to all of your problems:


start your own "Youtube" where you can post anything you want to post. Until that happens, there is always going to be somebody that says; ok, we'll post that or nope, not going to post that and there isn't a damn thing you can do about it. That is their right as a business owner to operate their business as they see fit. Your option is to start your own business or operate within the rules of theirs.

[Iggy Autry]

I lost another, earlier reply as two replies got meshed. I am only going to repost the last below:

You are again bypassing the heart of what I've been saying.

I respect your posts and your right to your opinion, but I'm not going to continuing taking so much time to write out in detail what I'm talking about just to have much of it sidestepped and in short form.

In part, because I also hope others with knowledge will join in the thread instead of it just being a conversation between two people. We've made our points above.

I hope others will speak up on what I want to focus on:

Which is - Youtube has so egregiously flaunted laws and courts and rights its entire existence.

It made some individuals filthy rich doing so.

Couple that with what it is doing to circumvent the courts and proper use of Copyright Law - and - some people with the ability --- ought to rally public opinion against this horrible company.

[LawResearcherMissy]

Oh dear sweet gods of Asgard.

No. You have not the foggiest notion what you're talking about.

Copyright holders only need to file legal action if they wish to recover damages. If YouTube allows the posting of copyrighted material, the copyright holders can sue not only the poster, but YouTube as well.

Youtube has so egregiously flaunted laws and courts and rights its entire existence.

"flouted". Don't use big words if you can't use them correctly.

YouTube is complying with the DMCA in order to keep themselves from being held culpable for the actions of others.

Read here and here. And stop squawking about "Free Speech", this doesn't have squat to do with the First Amendment.

Then hush. Because, wow.

[jk]

so, how does free speech work in the land of Saud? Can you force private websites to post material they don't want to post? Over here we can't no matter how much you whine and complain about it. Youtube bases their actions on 2 very valid reasons:

removing materials which the owner of the rights has filed a DMCA take down notice as the law requires lest they become complicit in the illegal posting of other's material and using their rights as a private company to post what they want and not post what they don't want.

when you figure out why that is wrong, let me know. Until then, understand that they are operating with the laws and within their rights. Don't like it; don't use their services. It really is that simple.