One of the biggest fears of gamers who post content to YouTube is the constant threat of copyright infringement penalties. Some entities like game publishers, movie studios and game publishers have aggressively used take down notices on anything that remotely uses their content. This is frustrating to YouTube creators who are often within the bounds of Fair Use when this happens. A federal appeals court in the U.S. recently affirmed a ruling that benefits YouTube content creators in this regard. The courts have affirmed that copyright holders must check to see if the content violates Fair Use before issuing take down orders.
The ruling came in Lenz v. Universal, often called the “dancing baby” lawsuit. Back in 2007, a woman posted a 29-second video of a baby dancing to “Let’s Go Crazy” by Prince (or whatever he calls himself at present). Universal Music Group sent YouTube a notice under the Digital Millennium Copyright Act (DMCA), claiming that the family video infringed the copyright in Prince’s song. The Electronic Freedom Frontier sued Universal on Lenz’s behalf, arguing that Universal abused the DMCA by improperly targeting a lawful fair use. The EFF won the case, and now, they also won the first appeal.
“Today’s ruling sends a strong message that copyright law does not authorize thoughtless censorship of lawful speech,” said EFF Legal Director Corynne McSherry in a press release. “We’re pleased that the court recognized that ignoring fair use rights makes content holders liable for damages.”
Certain groups have used DMCA notices to try and censor content on YouTube they don’t like. For example, political candidates who don’t like the way a YouTuber has compiled clips of them have sometimes tried to use DMCA to get the content removed. This ruling affirms that using DMCA in this way is wrong, and that the publisher is liable for damages if they issue take down notices without checking to see if the content is line with Fair Use.
What This Means for YouTube Gamers
As gaming on YouTube grows in audience and importance to the medium, game publishers have tried to find ways to influence the content produced and make money from it as well. Nintendo is notorious for its Content Publisher Program that requires many YouTube video about Nintendo content to be submitted to the program first for approval and then gives Nintendo a portion of the revenue generated by the video. Nintendo is known for aggressively taking down content they don’t like or that is outside the their Content Publisher Program.
While these publishers have a legitimate case for things like Let’s Play’s, using portions of contents for reviews or when talking about the game in a list show is normally within the realms of Fair Use. This ruling affirms that improperly sent takedown notices infringe on the rights of the video creator, and that said creator can seek damages. Though there are likely a few more appeals of this issue on the way, it seems that the law and courts will side with consumers. Publisher’s like Nintendo will have to be a bit more wary when flagging content on YouTube. Otherwise, they may find themselves shelling out a lot of money in damages if people decide to fight back.
YouTube itself will also need to work on a better system for checking videos for copyrighted content. At present, the system scans the audio and video for any pieces of copyrighted material, but it doesn’t check at the video itself to see if Fair Use applies. To illustrate, in my recent Top 6 Times Cartoon Let Evil Win video, I was prevented from monetizing the video because of three clips. The clips were less than 10 seconds each in an 18-minute video and were part of a review video, YouTube’s algorithms should have been able to see that and realize that Fair Use is in play. Ensuring the Fair Use rights of content creators helps YouTube generate more revenue and encourages more people to create content. So it’s likely that they are working to make the platform more Fair Use friendly.