Fair use advocates hit back with copyright principles of their own

By Eric Bangeman

A couple of weeks ago, the big four TV networks, Microsoft, MySpace, and a handful of user-generated video sites (but not YouTube) issued a manifesto of principles covering video content uploaded by users. They were long on protecting the copyright holders, but gave short shrift to principles of fair use. A new set of principles tries to balance things out, attempting to keep collateral damage to fair use at a minimum.

The Fair Use Principles for User Generated Content (PDF) offer a set of guidelines that user-generated video sites should use in order to ensure that their attempts to keep infringing video offline don't run roughshod over users' rights to fair use of the content. The principles were formulated by a handful of public interest groups including the EFF, the ACLU, Public Knowledge, and the Berkman Center for Internet & Society at Harvard Law School.

Big Content believes filtering is the answer to the question of how to cut down on the posting of copyrighted content, but as we've pointed out before, automated filters don't understand fair use. The public interest groups suggest that any filters used by video sites must have safeguards to ensure that fair use is respected. Any uploaded video must fail three tests before being blocked. First, the video should be a match for a fingerprinted video. Second, the audio track needs to be a match for the fingerprinted video. Last, over 90 percent of the uploaded video consists of content from a single copyrighted work. If a filter is unable to reliably make those determinations, then there needs to be some flesh-and-blood intervention.

Users should also be notified that their videos have been blocked by a filter and be given an opportunity to dispute the filter's conclusions if they believe the contents of the video fall under fair use. If a dispute is filed, the service provider should place a hold on the video for no longer than three days. During that period, a human should review the disputed video, and if it's still judged to be infringing, then a DMCA takedown notice should be issued.

The fair use principles also want the DMCA followed to the letter of the law. If a content owner wants a video to be taken down, it needs to issue a DMCA takedown notice and notify the affected user that the video has been removed. When "fair use 'dolphins' are caught in a net intended for infringing 'tuna'," the groups want users to be able to easily request reconsideration via a dedicated URL or e-mail address. Video sites should also follow the DMCA's provision requiring disputed content to be reinstated after a counternotice is issued.

To illustrate the dangers of relying on filters, the EFF has posted a gallery of videos that it believes might be blocked by automated filters, even though each one of them might qualify for protection under fair use.

Both the public interests groups and the rights holders believe that user-generated video can provide a fertile ground for creativity and free expression. Furthermore, the formulators of the fair use principles believe that the rights-holders' concern over "unauthorized, verbatim" copyright infringements is well-placed and legitimate.

The problem is that the user-generated content principles outlined by Big Content gave a shout-out to fair use, but are weighted heavily towards the interests of rights-holders. Those principles also provide little or no means to accommodate fair use, given their outright reliance on fingerprinting and automated filtering. The Fair Use Principles, in contrast, attempt to look out for the interests of those who are legitimately using copyrighted content. "Our aim is to speak for the interests of the millions of amateur creators who are fueling the popularity of YouTube and similar sites," said EFF senior intellectual property Attorney Fred von Lohmann in a statement.