YouTube, Jon Stewart, George Bush and Fair Use

[via BoingBoing]

YouTube Takes Down Comedy Central Clips Based on DMCA Claims

I received a couple of emails from YouTube this afternoon (see below) notifying me that a third party (probably attorneys for Comedy Central) had made a DMCA request to take down Colbert Report and Daily Show clips. If you visit YouTube, all Daily Show, Colbert Report and South Park clips now show “This video has been removed due to terms of use violation.�

For a long time, Comedy Central has passively allowed the sharing of online clips of its shows—because let’s face it, it’s helped them generate the kind of water cooler talk that has made them a ton of money.

Mathew Ingram’s been all over this and the whole issue about whether Google’s takeover of YouTube was smart business.

The cultural and social importance of Daily Show clips as part of the political blogosphere can’t be understated. Without Jon Stewart’s recontextualizing political figures’ propaganda, public discourse would suffer. Yes, I’m serious. Clearly there is a public interest in fair use.

Stewart Goss

But apparently, all good things come to an end when there is money and attorneys involved. I assume the only online clips that will remain will have to qualify under fair use – probably short clips, with social or political importance.


So how is the average user/contributor to YouTube going to determine fair use? Like a good user, you read your terms of use and consult YouTube’s handy Copyright Tips page:

While videos that are direct copies of someone else’s content are clear copyright violations, there are certain very limited circumstances in which the use of very short clips of a copyrighted video or song may be legal even without permission. This is known as the “fair use” principle of copyright law.

To determine whether a particular use of a short clip of a copyrighted video or song qualifies as a “fair use,” you need to analyze and weigh four factors that are outlined in the U.S. copyright statute. Unfortunately, the weighing of these four factors is often quite subjective and complex, and for this reason, it’s often difficult to determine whether a particular use is a “fair use.” If the copyright owner disagrees with your interpretation of fair use, the copyright owner may chose to resolve the dispute in court. If it turns out that your use is not a fair use, then you are infringing the copyrights of the owner and you may be liable for monetary damages.

OK, maybe not so handy.

YouTube won’t tell you what is fair use, and they certainly aren’t giving their users legal advice, so forget YouTube actually providing guidance on the four factors to determine what is fair use in U.S. copyright law and how they are balanced. But they provide some handy links to other sites that discuss the topic. So here you find the four factors:

the purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes;
the nature of the copyrighted work;
amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
the effect of the use upon the potential market for or value of the copyrighted work.

Ok, somebody dumb this down for me. If I upload a clip of Jon Stewart doing a bit making fun of George Bush, is it fair use on its face? Is it fair use if I use the video to make a comment on this blog? Is sharing and talking about a news item via the Jon Stewart clip fair use?

Now what about Canada’s fair dealing exception?

And realistically, who will push back to test fair use in a YouTube context? Copyright owners probably won’t sue users as long as YouTube complies with removal requests, so the line likely won’t be tested in court. Could a more active approach by content owners have a chilling effect on the vibrant fair use culture that has developed around YouTube?

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