After years of missteps, blunders and disasters in which Youtube users have been censored through spurious copyright claims or had their accounts deleted altogether, Google has announced an amazing, user-friendly new initiative though which it will fund the legal defense of Youtube creators who are censored by bad-faith copyright infringement claims.
Google will pick select Youtube videos that they "believe represent clear fair uses which have been subject to DMCA takedowns" and defend them in court, if necessary. The move comes in the wake of the Electronic Frontier Foundation's stunning victory over Universal Music in the Lenz "dancing baby" case, which set the precedent that rightsholders who do not consider fair use before issuing takedown notices can be held liable for courtroom fees from eventual litigation.
Google's statement explaining why they're doing this is an excellent acknowledgement of the shortcomings of the DMCA takedown process, and explains some of the tactical thinking behind the move -- they want their litigation history to become a "demo reel" of "what fair use looks like online." This is hugely important. The cost of litigating copyright questions means that there's very little case-law that demonstrates what fair use is in the 21st century, so when lawyers are asked to venture an opinion about whether a use is fair or not, they usually err on the side of caution and nix virtually all uses.
We’re doing this because we recognize that creators can be intimidated by the DMCA’s counter notification process, and the potential for litigation that comes with it (for more background on the DMCA and copyright law see check out this Copyright Basics video). In addition to protecting the individual creator, this program could, over time, create a “demo reel” that will help the YouTube community and copyright owners alike better understand what fair use looks like online and develop best practices as a community.
While we can’t offer legal protection to every video creator—or even every video that has a strong fair use defense—we’ll continue to resist legally unsupported DMCA takedowns as part of our normal processes. We believe even the small number of videos we are able to protect will make a positive impact on the entire YouTube ecosystem, ensuring YouTube remains a place where creativity and expression can be rewarded.
A Step Toward Protecting Fair Use on YouTube
[Fred von Lohmann/Google Public Policy]