As we have written elsewhere on this blog, the Ninth Circuit Court of Appeals recently held that copyright owners must consider fair use before submitting takedown requests to internet service providers under the Digital Millennium Copyright Act (“DMCA”). The DMCA provides a “notice and takedown” mechanism under which copyright holders can formally request file service providers remove unauthorized online postings of the copyright holder’s works.
YouTube, which is owned by Google, issued a statement on November 19, 2015, indicating it will “now protect some of the best examples of fair use on YouTube by agreeing to defend them in court if necessary.” The statement is short on specifics, but YouTube states that, with the approval of the video creators, in response to certain takedown requests it will keep the videos posted in the U.S. and will cover the cost of copyright lawsuits brought against the party that posted the video. YouTube expresses hope that its program will result in a “demo reel” that helps copyright owners and the YouTube community better understand what constitutes fair use.
Although YouTube does not go into detail about the criteria it will use to determine which cases to defend, on its Copyright fair use page YouTube states that it will focus on videos that “are most illustrative of fair use.” This page also indicates that up to $1 million of a video creator’s legal costs will be covered by YouTube.
There are many more questions than answers at this point about the effect this policy will have. For example, will YouTube favor any particular types of videos in its program, such as those that are mainly transformative in nature or those that levy criticism or commentary in the social or political spaces? And will copyright owners elect to pursue litigation over takedown requests if they know YouTube will be financing the video creator’s defense?