Google Gives Fair Use on YouTube a Fighting Chance

Last month, Google announced a groundbreaking policy that may help shift the balance of power between copyright claimants and those who upload YouTube videos that may be covered by fair use. According to Google’s Public Policy Blog, users upload more than 400 hours of video every minute. Those uploads sometimes make use of existing video or music clips in new and transformative ways. When uploads transform the original work in this way (such as a parody or critique), it adds social value beyond the value contained in the original work. In the United States, a transformative use is considered a fair use and exempted from copyright infringement liability.

Under the Digital Millennium Copyright Act (DMCA), copyright claimants have long had the right to demand that YouTube remove videos or other content they contend infringes their rights. Those who posted videos rarely had the funds to fight copyright holders. Content creators can ask for a video to be restored to the YouTube and other sites, but the process can take weeks and does not shield them from copyright lawsuits.

But Google’s new policy may change that. Google has started a fund to pay the legal costs of a handful of video content creators who upload clips that appear to be lawful, but which allegedly aggrieved copyright claimants’ demand they take down. Google’s offer includes keeping the videos live on YouTube in the Unites States, featuring the videos in Google’s educational Copyright Center, and even defending the content creators in Court.

Google’s new policy will educate the public on legitimate fair uses by promoting videos that it views as good examples of fair use. According to Google, “[i]n 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 ….”

Google’s new policy will also level the playing field between historically outmanned new content creators and traditionally better resourced copyright holders. Google indicated that the policy would not allow them to defend all creators with good fair use defenses, but would allow them to resist some baseless DMCA takedown notices, protect “YouTube’s ecosystem,” and “ensure YouTube remains a place where creativity and expression can be rewarded.”

With Google using their deep pockets to weigh in on the fair use issue in such a big way, there are smart legal and public relations reasons to carefully consider the basis for a DMCA takedown notice. The Ninth Circuit’s ruling in the “Dancing Baby” case may make it easier for fair use victors to claim legal fees from those who have wrongfully removed their videos. And, Google’s new policy changes the risk for some content creators, who may in turn feel emboldened by it. Celebrities and other content holders who have aggressively and routinely issued DMCA takedowns in the past may want to give future notices further thought. After all, who wants the video you demanded to be taken down to not only stay live on YouTube, but also become flagged as a great example of fair use and promoted on Google’s education page as a fair use best practices video?