Current Videos on YouTube with a Fair Use Score

The Take-Down Trap

One of the criticisms of the Notice and Take-Down provisions of the DMCA is that there is great potential for abuse. There is a lot of media posted on the web that incorporates third party media generated by our culture industry. Some of this may be considered infringement, but much of it is justified. As a Cultural Industrialist, just by sending out a DMCA notice, you can get work immediately yanked off YouTube, Boing-Boing, MySpace or whatever seditious social networking site is jerking your chain.

The poor slob at the pointy end of your barb now has to figure out what your Take-Down notice actually means (and probably hire a lawyer to assist in this). The lawyer will tell the poor slob that the only alternative to rolling over is to goad you into an expensive lawsuit by filing a counter-notice. If you are a media conglomerate like Viacom, Sony or the NFL, the poor slob may have serious reservations about taking you on. But should he summon the moxie to do so, he can file a counter-notice to the OSP explaining why his work is not infringing (presumably because of some fair use argument). The OSP will forward this information to you, at which point you have an additional 14 days to cool your heels and decide whether to sue the slob, or just do nothing. If you do nothing, after the 14 days runs out, the OSP will put the work back up. Congratulations, you have just received about three weeks of free government sanctioned censorship.

Why is this important? After all, if a media conglomerate can get your Yuh-Gi-Oh parodies pulled from YouTube for three weeks, what's the big deal? Aside from the equitable concerns about whether posters of such parodies have adequate resources or inclination to oppose such Take-Downs, the issue becomes darker when considering time sensitive speach. Consider a Take-Down of incriminating video two weeks before an election...

The Fair Use Score -
Proactive Notification of Non-Infringement

The only real deterrent to issuing a Take-Down in the first place is DMCA § 512(f), which states:

• (f)Misrepresentations.—
  Any person who knowingly materially misrepresents under this section—
  • (1)that material or activity is infringing, or
  • (2)that material or activity was removed or disabled by mistake or misidentification,
• shall be liable for any damages, including costs and attorneys’ fees, incurred by the alleged infringer, by any copyright owner or copyright owner’s authorized licensee, or by a service provider, who is injured by such misrepresentation, as the result of the service provider relying upon such misrepresentation in removing or disabling access to the material or activity claimed to be infringing, or in replacing the removed material or ceasing to disable access to it.

Consequently, in the case of a fair use works, the strategy is to put potential Take-Down Noticers on notice that the work is not infringing. For example, in the case of uploading a fair use work to YouTube, it would be nice to have a mechanism that could automatically determine if an allegedly infringing work is actually a fair use work.

Here at the Copyright Website Labs, we have created a prototype of a system for use with YouTube. The process starts with using the Fair Use Visualizer to determine the Fair Use Score of your work. When you upload your video to YouTube, add the tag 'fairuseScore' followed by a space and then the number of your actual Fair Use Score. For example, you you uploaded a video about NWA sampling George Clinton in a song which appeared in the movie "I Got the Hook Up", you might use the following tags: "fairuseScore 89 NWA Funkadelic sampling". The tags can appear in any order, the only requirement is that the actual score of 89 follow by one space the tag 'fairuseScore'.

In this way, anyone can browse YouTube and see that the video has a Fair Use Score and is presumptively non-infringing. Also, analysis can be automated using the YouTube API. In the box above, the YouTube API is accessed to determine if a particular video has a Fair Use Score. Somewhat redundantly, the table at the top of the page accesses the YouTube API, retrieves all vides with the 'fairuseScore' tag and extracts the Fair Use Scores for all videos posted on YouTube that are so tagged. You can see the Source Code here.