Last week, we were reminded of the DMCA’s potential for abuse when film critic Kevin B. Lee’s video essays were removed from YouTube as the result of a DMCA takedown notice. In the ensuing analysis, we noted that our friends at the EFF, among others, were working to address a related issue: a provision in the DMCA that prevents film critics and others from legally ripping DVDs in order to make fair use of video content. Now, in the wake of a series of dubious takedowns, the EFF has decided to confront both YouTube and the copyright holders head-on, in an attempt to bring some balance to YouTube’s notice and takedown regime.
In a post to the Deep Links blog yesterday, EFF senior staff attorney Fred von Lohmann makes it quite clear that he’s had enough of Big Content’s efforts to squelch fair uses on YouTube. He points to a recent spate of abusive takedowns–largely believed to be the result of a breakdown in negotiations between YouTube and the Warner Music Group–as evidence that the DMCA notice and takedown system is now being used blatantly as a tool for censorship, rather than copyright enforcement. His proposed solution comes in two parts. First, YouTube must fix Content ID, its automatic digital fingerprinting/filtering system:
…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…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.)
Second, von Lohmann thinks that it’s time for a little impact litigation and he’s looking to the YouTube community for 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.
If you meet the criteria above, be sure to head on over to DeepLinks, read the rest of Fred’s post and consider getting involved. In the battle over online fair use, the time may have come to fight fire with fire–so let’s make sure that Fred and the rest of the folks at EFF have all the kindling that they need.