A More Fair Approach to Fair Use

2000px-US-CopyrightOffice-Seal.svgIntellectual property law in the U.S. has not aged so gracefully with the development of internet content publishing. Obviously, this development could not have been foreseen until the very recent past, so it comes as no surprise. As usual though, the law is slow to adapt to the fast-paced changes that society at large is facing today.

Fair use is an aspect of IP law that has particularly caused issues in our modern ‘cut-and-paste culture. The confusion is detrimental to most of the important parts of U.S. copyright law, which is not always clearly defined anyway, and is often misunderstood. Fair use compliance is by nature something that can’t be quantitatively measured, which has turned out to be both an asset and a liability for those seeking protection under its wing. I believe the lawmakers behind IP laws recognized that a simplistic rubric for defining fair use could not ably address the nuances and complexities inherent in the issue, and that it must be dealt with on a case-by-case basis. This gives those appealing for fair use designation the opportunity to defend themselves and their work. The downside is that it gives full discretion to the court.

In this internet age, there is so much content being produced and distributed that it’s not at all feasible to deal with intellectual property disputes on a case-by-case basis anymore. Copyright infringement is handled by computers running algorithms which alleviate people from having to do the grunt work, but are incapable of handling the nuanced and flexible nature of fair use laws. Copyright has always been ‘opt out’ by default, but until now the drawbacks of such a system have not been completely evident.

So in response to the problem, Youtube is announcing that they will provide legal services for select videos which fall victim to indiscriminate removal over copyright charges. Youtube has become a platform that is especially plagued by these issues. Hundreds of videos are uploaded to Youtube every minute by everyday internet users, many of whom will make use of copyrighted materials such as music, pictures or movie scenes. I’m sure most of us have clicked on a Youtube link only to receive a ‘content unavailable’ message, at least several times in our lives.

The number of small insignificant cases vastly outnumbers the large critical cases since now anyone (including many who have limited knowledge of copyright law and fair use) can upload content through platforms like Youtube. It’s safe to assume that most of the videos removed are not important enough to warrant legal action by the parties whose IP is potentially being infringed upon. Those same videos, therefore, are probably also the products of people who don’t have the means to take countermeasures. Making a case for fair use can be complicated and costly. The ‘opt out’ nature of copyright as it stands means that the cases not worth looking into will always be ruled in favor of the copyright holder unless an appeal to fair use is made, which discourages the legitimate use of copyrighted material for creative or educational purposes. This is antithetical to the original intent of copyright law, which was to encourage the production of new intellectual property.

This policy of ‘guilty until proven innocent’ is also damaging to sites like Youtube, for whom it is in the best interest to encourage content creation and to make users feel free to upload videos.

In the best case scenario, Youtube would be able to provide legal service for all users, but this is clearly not possible, considering the scale of such an undertaking. An undisclosed Youtube publisher, quoted in the ZDNet article linked above, noted that it’s a step in the right direction, but implementing an ‘innocent until proven guilty’ mandate would go much further towards finding a solution, since it is not possible for Youtube to offer protection for all users.

Youtube’s move to defend fair use content illustrates that they are aware of the value it contributes to the platform they operate. Thankfully, they are willing to do what they can to even the score. The real solution will not be to simply bandage the hole. Musicians and artists have begun to call for a more fundamental change in the archaic copyright law being applied to internet age IP disputes. For the time being, we may have to settle with band-aids.