Accidently on purpose.
September 14th, 2009It seems to me, when you are dealing with large companies, you much more often receive bills in error than you receive refunds in error, no?
Of course, if the “errors” these companies make are indeed in one direction only – always in their favor rather than in your favor, for instance – then those are not really “errors” at all, are they?
A similar situation now exists regarding copyright law and, most particularly, the concept of “fair use.” There are currently provisions in copyright law for the use of copyrighted works without permission — under certain conditions. One of the more significant of these conditions is “fair use.”
Most generally, “fair use” of copyrighted material is use for limited and transformative purposes, e. g., for comment, criticism, or parody. This includes educational use.
As an example, consider videos on YouTube. Specifically, consider this video:
If you listen closely, the toddler in that video is dancing to a song by Prince. And, Universal Music, as owner of the rights to that song, requested that this dancing toddler video be taken down as an infringement of their rights of ownership.
Now, you might think this request by Universal Music is just plain silly, but, when that request was made, YouTube did not consider it silly. YouTube pulled the dancing toddler video. And that video stayed pulled for (according to Wired magazine) about six weeks.
This is YouTube’s policy on the matter: If YouTube gets any sort of request like this (i. e., a “DMCA request” ) asserting that a copyright violation has occurred, then YouTube complies with that request and removes the video from their site.
The problem here – as you might suspect – is that there are lots and lots of big companies like Universal Music paying lots and lots of lawyers to file thousands and thousands of DMCA requests, and there are very few, if any, mommies video-taping their dancing toddlers who want to get into any sort of long, drawn-out battle with the lawyers.
As a result, YouTube is much more likely to make an “error” in over-zealously restricting what videos can be shown than in over-liberally allowing copyright to be infringed. This means that lots and lots of videos will be taken down that really shouldn’t have been. ((Including, by the way, a Lawrence Lessig video.)
But don’t take my word for it. Judge for yourself. Check YouTomb, which keeps track of all the videos YouTube has pulled from their site.
Over time, this creates a decidedly chilling effect on fair use – not just for mommies with dancing toddlers but for anyone and everyone who would like to take advantage of their fair use rights.
Some people – like the mom above – are trying to fight back, but without really much help from the government that created our current copyright laws. It’s more often non-government agencies — the Electronic Frontier Foundation, for instance — that offer legal aid and support for fair use and other important and publicly beneficial components of existing copyright law.
Of course, YouTube appears more than willing to acknowledge and correct any “errors” made in complying with specious DMCA requests. But they seem much less willing to make sure those errors never happen in the first place.
