Modern Fair Use

Jason Beghe, a former Scientologist, spoke out. I’d seen the tease for the above-linked interview and was checking back to see if the full interview had been posted. Then one day the YouTub account of the poster was suspended for prior incidents of alleged copyright infringement.

Currently the trend of media is wholesale ownership of content and increasingly comprehensive restrictions on fair use. YouTube has become an exemplar of this trend, with their shoot-first, answer-questions-never (except “with the user who posted the materials”) policy. They do not have a transparent process for reviewing content removal decisions. If a video could be construed as infringing without examining the complexities of copyright (including fair use) they’ll pull it.

What’s more, they’ll remove the offender’s account and will, in the future, disable any accounts that person makes if they find out. In short, YouTube is behaving as a barrier to free speech. Obviously it’s the company’s right to do as they please with regard to content, but a subordinate organization to Google, one would expect more from.

Examples of YouTube’s strong stance against freedom can be found in at least two examples I’ve personally followed. The first was covered here awhile ago also involved copyright infringement : Back on YouTube! That case amounted to the infringing use of music to accompany what was otherwise non-infringing content.

This time around the issue is xenutv posting Viacom-owned Stephen Colbert clips about Scientology. Xenutv got removed from YouTube before for this, and apparently their policy of banning repeat offenders caused another account removal more recently. Xenutv posted their Jason Beghe interview, and somehow that triggered the account removal.

There are two problems here. The first is a question of fair use. If one so-called channel on YouTube is dedicated to a specific topic when is it not fair use to post a directly-related clip? Arguably posting the Colbert clips is fair use as it was a small portion of the original work that had little, if any, potential of damaging the ability of Viacom to exploit the work commercially.

Viacom is acting for one reason: they don’t want their content reused except by direct permission. They don’t want fair use. And YouTube has been complicit in this sort of behavior. The DMCA takedowns do not account for fair use. There is no review process. Effectively, the DMCA along with its corresponding protocol amongst the media companies is effectively skirting the notion of fair use altogether.

But, in my view, there is a much larger problem. Accepting the current behavior of media companies and YouTube in handling infringement, it should be second nature to hold the process up to the light. That is the opposite of the situation. Content can be pulled from a major site like YouTube at any time for any reason, but it would seem reasonable to expect them to give the public a reason. There should be a public review process that allows the average user to see why the company took action.

Wikipedia does this via the article History does this. You can look at the revisions, you can look at the talk page. While YouTube is no Wikipedia, they should still strive to be open about why content was taken down. Otherwise we have no reason to believe it wasn’t outright censorship rather than alleged copyright infringement.

So, from all of this discovery we can tune forth a few rules for the modern media:

1. Be transparent.
2. Only remove the infringing content.
3. Offer an alternative source if applicable.

That is, put a process of review in place where users can find out what the reason was for a removal and see that it was handled properly. Don’t cull the forest to remove the weeds. And finally, if Viacom streams the offending episode, maybe YouTube and Viacom could offer the offender the choice of linking to that content instead.

In both the above cases the initial reaction of sane-minded individuals is not copyright infringement, but actions by those who disagree with the content to get the accounts pulled. That definitely was not the case in the first example. Was it, in the second? We don’t know. Obviously something triggered YouTube’s radar. Was it the volume of hits that the interview tease received? We will not know unless YouTube opens their process up to public scrutiny.