EFF looking for victims of 'YouTube's January Fair Use Massacre'; seeks plaintiffs for web video fight

EFF Senior Staff Attorney Fred von Lohmann had a very interesting post today on what he calls "YouTube's January Fair Use Massacre" -- and what others might call copyright owners' efforts to enforce their rights on the web. According to von Lohmann, things have gotten "much worse" for YouTube posters over the past few weeks, for 2 reasons:

First, it appears that more and more copyright owners are using YouTube's automated copyright filtering system (known as the Content ID system), which tests all videos looking for a "match" with "fingerprints" provided by copyright owners.

Second, thanks to a recent spat between YouTube and Warner Music Group, YouTube's Content ID tool is now being used to censor lots and lots of videos (previously, Warner just silently shared in the advertising revenue for the videos that included a "match" to its music).

While I reserve the word "censor" for instances where the government does the silencing, I think von Lohmann otherwise accurately describes what's happening. So what does he propose to do about it?

First, YouTube should fix the Content ID system. Now. The system should not remove videos unless there is a match between the video and audio tracks of a submitted fingerprint. When we made this suggestion in October 2007, YouTube assured us that they were working on improving the tool. Well, it's been more than a year. If YouTube is serious about protecting its users, the time has come to implement this fix. (Some will point out that this implies that record labels and music publishers can never use the Content ID tool to remove videos solely based on what's in the audio track. That's right. I think that adding a soundtrack to your home skateboarding movie is a fair use. If copyright owners feel differently, they can send a formal DMCA takedown notice, and with any luck, we'll see each other in court.)

A few things. What if the music copyright owner submitted only a music fingerprint (i.e., not a whole music video)? Would it not be able to use the audio-based filter to block videos, since there is not "a match between the video and audio tracks of a submitted fingerprint"? Seems to me it should be able to use the filter, especially because of the rising popularity of "music videos" that are nothing more than a static image with the music playing (example here). As I understand von Lohmann's proposed "fix," music copyright owners would not be able to use an automated system to ID and block such "videos," which I think is unwarranted.

As to whether "adding a soundtrack to your home skateboarding movie is a fair use," I tend to disagree with von Lohmann, but I'll be the first to admit that there is no clear precedent covering this precise issue. Moreover, von Lohmann doesn't address the common scenario of homemade YouTube videos that include a scene (or scenes) from a movie or TV show, synched with some other piece of music (which video would likely include 3 separate copyrights: video, sound recording, and musical composition). Does von Lohmann believe those videos are all fair uses? Is it OK to use either automatic audio or video ID systems to block those?

Next, the fun part. EFF to the rescue:

Second, YouTubers, EFF wants to help. If Warner Music Group took down your video, ask yourself if your video is (1) noncommercial (i.e., no commercial advertisements or YouTube Partner videos) and (2) includes substantial original material contributed by you (i.e., no verbatim copies of Warner music videos). If so, and you'd like to counternotice but are afraid of getting sued, we'd like to hear from you. We can't promise to take every case, but neither will we stand by and watch semi-automated takedowns trample fair use.

While he doesn't say it explicitly, it sounds a lot like von Lohmann wants a court test of his "home skateboarding movie" scenario. I can see it happening like this: 1) kid uploads movie of himself skateboarding, synched with professional music; 2) video blocked by content ID system, which catches music; 3) kid disputes block (with EFF's help, though all it takes is filling out a very simple online form); 4) record label files DMCA notice; 5) kid/EFF submits DMCA counternotice; 6) record label refuses to roll over and sues kid, and/or kid/EFF sues under 17 U.S.C. § 512(f), alleging a bogus, bad-faith takedown. And then they duke it out in federal court.

Which would not be the worst thing in the world (easy for a bystander like me to say, I realize). One of the reasons that there is so much uncertainty over fair use on YouTube videos is that litigation over them is so rare. I am not aware of a single lawsuit brought by a copyright owner following submission of a DMCA counternotice on a YouTube video (I will happily amend this post if anyone can identify such a suit). Believe it or not, but copyright owners simply have much bigger fish to fry than kids who put homemade skateboarding videos on YouTube. So no fair use precedent gets made -- and instead we all go to conferences and participate in lively, albeit academic, debates about whether videos like this one qualify as fair uses). A bit of fair use clarity as to YouTube videos would, I believe, be welcomed not just by EFF, but by many copyright owners as well.