Tech continues to test the elasticity of the law and use case precedent as its own disruptor. The Google Goliath, YouTube, is moving forward to pay several video content creators’ legal fees in copyright infringement disputes that use the defense of fair use.
A copyright is an expression of an original idea through words, music, pictures, computer programs, or any other method conveying ideas as works of authorship. The copyright is governed by federal law and is, unlike many of our laws, explicitly identified in the U.S. Constitution. A copyright gives authors the exclusive control of their works of authorship, including derivative rights. An author controls whether or not the copyright – work of authorship - may be used or displayed.
There is, currently, one minor exception: fair use.
Fair use is a judicially created exception to copyright infringement that is codified in 17 U.S.C. §107. Fair use allows use of the copyright – work of authorship – without the permission of the author for purposes such as criticism, comment, news reporting, teaching, scholarship or research.
The case causing the disruption for online content is, of course, the dancing baby case. Before the great recession, a mom, Ms. Lenz, made a video of her kids dancing to a Prince song and uploaded it on YouTube. Prince’s publisher sued. The case made its way to the U.S. Court of Appeals for the 9th Circuit, which of course covers the Tech Coast and much of the West.
This fall the 9th Circuit allowed the case to go forward and set a new guideline through interpretation and precedent. The new burden:
Copyright holders must consider fair use before asking online services like YouTube to remove content they control.
This burden shifts to the person (read author or owner) claiming copyright violations and puts a first step burden on the copyright owner. Traditionally – but not anymore in the 9th Circuit – fair use is an affirmative defense available to a defendant accused of copyright infringement in a lawsuit.
This new interpretation of an existing law now places a burden on copyright holders to first consider fair use before asserting, even claims (read DMCA takedowns), of copyright infringement.
The scaling of the disruption is coming. YouTube announced it will now begin financially supporting, paying legal fees, to some of its content creators who claim fair use in disputes involving copyright infringement. YouTube’s legal counsel is quoted, in a New York Times piece yesterday, that “We want, when we can, to have our users’ backs…We believe even the small number of videos we are able to protect will make a positive impact on the entire YouTube ecosystem.”
Prepare to see a proxy war between Tech and Tinsel Town.