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Law

Internet Creators Are Pressuring Youtube To Respect Fair Use Laws

Doug Walker, better known as the Nostalgia Critic, and fellow Youtubers Alex from I Hate Everything and Adam Johnston from Your Movie Sucks, have launched a campaign to bring attention to Youtube’s harassment of creators who use fair use in their videos. The campaign, using the hashtag #WTFU (or Where’s the Fair Use), launched with an educational video that has received nearly 1.2 million views in less than a week.

Fair use is the exception to copyright law that allows content creators to use the otherwise protected works of others – without the copyright holder’s permission — if that use is for education, criticism, parody, news reporting, or research, among other similar uses. No license fee or other payment to the copyright holder is required.

Fair use is essential to creators like The Nostalgia Critic, who creates satirical reviews of popular movies, especially movies first released during the 1980s and ‘90s, such as Children of the Corn and Labyrinth. Like any movie review program, Walker incorporates clips from the subject movies; the I Hate Everything and Your Movie Sucks channels create similar content, offering humorous and critical takes on pop culture.

Unfortunately, Google-owned Youtube, under pressure from corporate copyright holders, such as the major movie studios, uses draconian copyright protection measures to wall off copyrighted works from purportedly infringing uses by Youtubers such as the Nostalgia Critic.

Youtube has a two-pronged system for allowing copyright holders to protect their work, and seems to have a “no questions asked” policy before allowing the copyright holder to make its claim. A copyright holder can either (1) make a “copyright strike,” in which a rights holder demands that Youtube take a supposedly infringing video down, whereupon Youtube will simply comply without investigation or consideration of the rights of the video creators; or (2) make a content ID claim, where the rights holder claims its protected work is being used by a video on YouTube, and can then either block the video or actually confiscate any advertising revenue the supposedly infringing video earns.

More troubling, these provisions allow for third parties, so-called “rights-management” entities, to make a claim of infringement on behalf of copyright holders.

And, perhaps most egregiously, YouTube even allows for automated claims: when a computer detects the use of copyrighted material on a YouTube channel by cross-checking against a database of protected works, it can automatically make, with no human involvement, a claim of copyright infringement.

Factors used to determine fair use. (Image: Gregory Paul Johsnon/CC BY-SA 3.0 US)
Factors used to determine fair use. (Image: Gregory Paul Johsnon/CC BY-SA 3.0 US)

This system allows copyright holders, including the major studios, but also smaller companies and individuals, to wildly abuse Youtube’s policies and to restrict the free speech rights of other content creators, to confiscate their earnings, and to damage their livelihood. And abuse it they do: As Doug Walker reveals in his video, he is forced to deal with a copyright takedown notice or other such hassle every other day of the week.

Then, like some lost scene from the Terminator series, Youtube requires creators to fight back against these faceless rights-management entities and computer claimants in their lengthy, opaque appeals system, often without knowing against whom they are actually fighting.

All simply to recover their legal right to free speech.

The abuse heaped upon the content creators is consistent with the studios’ general abuse of copyright law, evidence of their hysteria over digital content, as covered on this site previously.

Until Youtube makes reforms to protect the rights of the content creators from whom it earns its profit, creators must rely on well-established third-party organizations that seek to protect the rights of content creators who lawfully use the copyrighted works of others. The Fair Use Project was set up by the Center for Internet and Society at Stanford Law School, led by renowned law professor Lawrence Lessig. It’s “the only organization in the country dedicated specifically to providing free and comprehensive legal representation to authors, filmmakers, artists, musicians and other content creators who face unmerited copyright claims, or other improper restrictions on their expressive interests.”

There’s also the Electronic Frontier Foundation, or EFF, the leading nonprofit organization defending civil liberties in the digital world.” While dedicated to a wide range of digital rights, EFF counts fair use among its key issues.

On Youtube’s informational page about copyright strikes, it claims that “[w]hen a copyright owner formally notifies us that you don’t have their permission to post their content on the site, we’re required by law to take down your upload.” Not only does this statement completely misstate the law, it ignores fair use entirely.

Youtube allows such copyright strikes to be removed from an alleged infringer’s record if they attend the company’s “copyright school.” But it would be helpful if Youtube learned more about copyright law itself before lecturing others to do the same.

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  • Chris B

    Clearly some people have been unfairly treated on YouTube and this issue needs to be resolved – but there is another side to this coin. Using Doug Walker as one example, I’ve seen (and enjoyed) a bunch of his videos before, but even at the time I thought ‘how does he get away with this?’ because multiple items listed on that Fair Use chart were violated. He would do 30 minute-isa long movie review, going through and revealing the entire plot of the movie, while only occasionally filming himself for new footage (it was mostly showing clips from the movie itself). So, in those cases, I would agree with the big bad movie studios, because Doug’s new work was not predominantly original content, it did diminish the original product, and a very large (not a “small) portion of the original work was used. So, it’s reasonable to see why some videos are pulled IMO.

    • partyrobotmachine

      no it is not they take away monitization amd people lose there lively hood and what is wrong with doing a review it is clearly following the fair uses law

    • Kyle Voltti

      Provide a link to a thirty minute video that does this and besides, spoilers, no matter how extensive, do not violate copyright. The videos produced are reviews. they have almost constant voiceover and cutaways not to mention often placing clips out of order.

      • GS

        Running a constant audio commentary under a movie is not Fair use. It’s the 21st century version of Mystery Science Theater 3000.

        • Mesterius

          “Running a constant audio commentary under a movie is not Fair use. It’s the 21st century version of Mystery Science Theater 3000.”

          This is taken completely out of context. I’ve watched tons of Doug’s Nostalgia Critic reviews over the years, and he never shows even close to the entire movie. Rather, he shows a selection of clips (often with voice-overs), contrasted with his own comments on the clips and on the movie as a whole. This isn’t a violation of Fair Use. It IS Fair Use.

          • Austin Papageorge

            Using over 10 minutes of the movie’s footage might not be fair use. I wouldn’t want to go to court over it, mainly because I might lose big.

          • Austin Papageorge

            I know you’re a fan of Doug Walker, but his claim of fair use isn’t ironclad. For instance, the Supreme Court ruled in favor of the copyright holder in Harper & Row v. Nation Enterprises. The issue was 400 words quoted verbatim in a review, and the Nation magazine tried to use the fair use defense.

        • Honest_Miss

          I get the sense you’ve not actually seen a Nostalgia Critic video.

          • Dusty Ayres

            I think that they have.

      • marti386

        Well, he did a 33 minute long review of Food Fight:

        https://www.youtube.com/watch?v=Lf85ZaAfixM

        Another reviewer did a 55 minute long review of Food Fight:

        https://www.youtube.com/watch?v=9tjh-IxP6yM

        As much as I loathe Food Fight, I have to think that some of these “movie review” guys on YouTube are going way over the line of “fair use”.

        One of the best reviewers on YouTube is Jeremy Jahns. He does reviews all the time, and he never shows a single clip from the movie. at all.

        • Jray

          The length doesn’t matter. It’s a REVIEW, so it’s transformative in nature, meaning it is fair use. Now if he just sat there and didn’t help the viewer to see the movie in a new light or add anything at all, that would Not be fair use

          • marti386

            NO, a “review” is what Siskel & Ebert used to do back in the day. A 5 or 6 minute review with two or three quick scenes in it. Cuz that’s really ALL you need to make your point.

            This is 33 minutes long, and a good 85% of it is actual scenes from the movie. The 55 minute one is even worse. This movie is only like 90 minutes long. They’re showing a good third or more of it.

            I’m as much for “free use” as the next person. But as someone who’s a creative professional who makes a living from my artwork, I kinda balk at this sorta stuff. Because it’s going WAY beyond what I would consider “fair use”.

          • Reviewtainment Apologist

            While these reviews can have what is perceived by people in the film industry as a liberal sprinkling of clips, I have never found that watching one of these reviews has replaced the experience of watching the movie itself. Somehow, if I wanted to watch a movie, (to make up my own opinion about a film), watching someone constantly interrupt the movie with sarcastic commentary, rants, dubbed dialogue and cutaway gags with Flash animation seems like a far from ideal way of watching a film. Even with bad movies, riffing a film at home with your friends is a different experience, because you are making your own jokes and interrupting the flow of narrative at your own pace.

            But anyway, I must admit to you that I would say that something like the Nostalgia Critic is actually quite a different genre from At the Movies.

            The Nostalgia Critic is part review, and part satire. And yes, the comedy is largely dependent upon the clips, but the running commentary and cutaway jokes completely transform the experience. Watching the NC review of Foodfight! is very different from watching Foodfight! itself. (watching Foodfight! uncut is far, far more painful.)

            Yes, the Nostalgia Critic style makes use of a lot of clips, but they do not replace the original work’s value (or lack thereof). And look at it this way: I bought a lot of movies BECAUSE I saw reviews like this. Good movies and bad. You’ll notice that when many of these Youtubers film their reviews, they shoot in front of their DVD and videogame collections. A lot of these people are very, very active consumers. And every review, whether the critic showers a work with praise or condemnation, is giving a work publicity. These people are friends of the industry. They watch (and buy) a lot of movies, and encourage others to do the same.

            And also, even though you may disagree with me, there are still some important points that Doug Walker raises in his ‘Where’s the Fair Use?’ video. Accusers have more rights than defendants. And because a lot of the copyright protection is administered by bots, not human beings, reviews are taken down without any logical discernment at all. As mentioned in the video above embedded in the article mentions, Brad Jones had reviews where he was sitting in a car, talking about a movie, being taken off of Youtube for copyright infringement. Regardless of where you think the limitations of Fair Use/Fair Dealing lie, the current Youtube system is broken and unfair. These problems need to be judged by human beings, not robots.

    • Ash Oat

      My response to this would be that if you were interested in seeing a movie, why would you prefer to watch it with Doug Walker’s voice-overs (and often scream-overs) interrupting the characters, narration, and music of the movie? If it’s judged that 20-30 minute reviews can contain the entire value of a 90-120 minute movie, 1) that’s not saying much for the value of the full content of the movie (acting, sets, cinematography, score) and 2) that makes it sound like “spoilers” are the main issue that studios have. “You revealed the climax and resolution of the movie? Then why would anyone see it!” Well… they’d see it for everything ELSE, and for full context. For the movie as a whole experience. If showing key plot points of the movie is the full value of the movie, then no one would be seeing ANY movies these days, since almost everything from a first scene to a climactic battle is shown in 2+ minute official trailers. Which are readily, and legally, available for viewing online (often in multiple lengthy versions showing different scenes) and thrust in your face in theaters.

      Like you, I don’t want anyone misusing Fair Use, but the discussions about it should be just that – discussions. It shouldn’t be allowing studios, or third-parties, to do whatever they want while denying the opportunity to challenge them and defend your own product.

      • Renard N. Bansale

        Plus, at the very least, these amateur critics are promoting the films they review. All the films that have made a reputation for being bad have remained so because of the Internet. MST3K was great for bringing initial notices for many bad films, but even what they did could’ve easily faded away. The Internet keeps these films alive. It’s rather sad that studios, both big and small, see this attention as infringement instead of free publicity.

    • Honest_Miss

      Doug’s toed the line a couple times, but I can’t think of any instance where he’s actually crossed it.

      I’ve been watching the Nostalgia Critic videos for very nearly as long as he’s been releasing them. While he does show clips, they’re rarely longer than a minute. Longer clips are usually used to prove a point about the silliness of a line or scene. And clips as a whole have steadily shrunk down to nothing over time (as he says in the video).

      I’d be curious to see what kind of treatment Cinema Sins gets from Youtube. They show extremely short clips, but at the end of the day the whole show is dependent on them.

  • Fallen Prime

    And mere hours after this goes up, another one bites the dust. Team Four Star lost their channel not long ago.

    • LikkiCurry

      It’s back up again, thankfully.

      • Fallen Prime

        It is, and that’s a good thing. But the system is broken enough that the channel got taken down in the first place, which is NOT a good thing.

        Reinstating the channel is just putting a tiny Band-Aid on a bleeding gash.

  • Fred

    I can’t remember where I saw this same thing discussed, but in the discussion an animator told a story about how he/she used a free public domain score of Beethoven in their animation and youtube’s nonhuman automated system took the animated video down because the song matched a similar song. The animator found out that there was some dubstep musician online somewhere with a copyrighted song, but midway between the song was the whole Beethoven song, then it jumped back to the dubstep stuff towards the end of the track.
    And because of this, the creative animator who did nothing wrong, got their video deleted because of a youtube robot.

    • Troy

      I believe it was RubberNinja (Ross O’Donovan)’s story. It seems to fit what you’re saying, though chances are it could be different. Here is the story in question from a reddit post: https://i.imgur.com/SStDIKS.jpg

  • Tarek Said

    Clearly this is affecting a lot of Youtube creators, and I think the main reason copyright holders can freely abuse the copyright infringement system is because they obviously have more resources which they could use to sue Google, which clearly tilts the balance in their favor.

    In that case, youtube creators should form some sort of Youtube Media Creators Association (a.k.a. YMCA :P) in order to even things out.

    • TheScorpion0081

      That is not the case. Youtube created the DMCA bot specifically to keep from getting sued. It removes liability from Google and places it directly on the content creator. There are a number of reason why it is being abused, but for critics specifically, it is either because they are being unreasonably protective of their property (like VIACOM, Disney, Nintendo), or out of spite for the negative criticism.

      Sad thing is, because of the fact that it is their property, they have every right to do this if they really want to. On the exact opposit end, their are companies and creators who actually enjoy and even benefit from the attention. Everyone else just don’t care.

      • Honest_Miss

        “Every right” ends when you start illegally garnishing wages without evidence or right.

        • Dusty Ayres

          What does that have to do with the subject under discussion?

      • Dusty Ayres

        but for critics specificallymulas, it is either because they are being unreasonably protective of their property (like VIACOM, Disney, Nintendo), or out of spite for the negative criticism.

        There is a solution for that for these companies: don’t create the same formulaic stuff as before. Foreign and domestic American independent films/TV shows don’t use the same formulas to tell their stories, and they don’t usually end up getting critiqued by people like Nostalgia Critic or Your Movie Sucks (notice how nearly every movie on one of these shows is American?) If said companies commissioned and made more works that were less (or not) formulaic (and also not just released them in a limited fashion through their boutique divisions), then there wouldn’t be all of these web shows blasting movies (or at least, they reviews would be favorable.)

  • well…

    A lot of channels on youtube make money off of using preexisting content and then commenting on it. The most egregious ones are “reaction” videos where it’s just a person watching a video (complete unedited) and a small screen of them in the corner reacting to it. Sometimes maybe 2 or 3 reactions per 10 minutes. Clearly reuploading the creators’ content and trying to exploit the loophole. Original content creators get screwed. I’ve had my original content stolen, reuploaded by other users, reuploaded to facebook and other video sharing sites. It is a PAIN in the ass to get them removed. And i am not a big company with an arsenal of lawyers. I have to go to each individual stolen video and file a claim…then wait.. So I am on the side of enforcing copyright infringement. This Nostalgia critic makes a fair argument, but for everyone one of him there are hundreds of people all over ripping off videos and putting them up on channels. Stuff they didn’t create and that they do not own. They monetize and put ads up on the said content and make money off of it. It’s horrible. The millenial generation wants to have their cake and eat it too. They want everything to be free. They torrent free movies and they get their content from youtube for free. They don’t pay for anything anymore. I understand the studio plight. I understand the creators’ plight. And it takes a lot more time, money and effort to create something original than to pick up an old vhs of a shitty movie and make fun of it for 10 minutes. Or play a video game and comment on the video game. These channels are parasitic. they make their money off of other peoples’ hard work. And this fanboy/girl mentality feeds itself. People make “parodies” of cartoons they grew up with. They make fanart. They make everything but ORIGINAL content. There is a reason why there are a ton of reaction/review channels and not a ton of original content channels, because the former is a lot easier to do. It’s the most low budget thing to produce. sit in a room and comment on a video you ripped from online. Sitting in your room and drawing 4000 drawings then coloring them to make a complete animated film is different. Hiring actors, reserving sets and locations, filming and writing short live action films take a lot more effort. So i don’t really have much sympathy for these guys. Original content creators should always be put first. After all, without them, these critics would have no content to criticize.

    • Cindy Gagnon

      The problem right now with Youtube, there is NO WAY of contacting them to get claims resolved quickly, it’s impossible to speak to a human being. Small people can lose their Internet livelihood because of false claims. Even original content is not safe, if bots detect something in your video because you are unlucky or an asshole wants your profits, you get a claim and you lose money as long as it is up.

  • Pikapetey

    neat I did animation for “I hate everything”

    • Jray

      Yeah it was awesome!

  • Zekey

    I’ve told this story before but I’m telling it again because it’s very relevant for this particular Youtube controversy.

    A few years ago a friend of mine named Willva and I collaborated on an animated short. It was Minecraft-themed so of course got a huge crowd watching it. What we didn’t expect was it to get 2 million views.

    When we started producing the short, one important thing we both wanted to do was have composed music for the short. No copyrighted tunes. So Willva rang up a friend of his who is a musician and a glorious little OST was made for our cartoon. We made the decision early on to put youtube ads on the film so any money generated could be split 3 ways between the musician, himself, and me.

    A week or two after our film went up Willva was informed by Youtube that a company whose name escapes me at the moment (Shoutingfish or Yellfish or something) had filed a claim on the music in our film. Now obviously they did not own the music in the film, it was all original. That apparently did not matter to Youtube in the slightest. They eagerly dumped all the ad money on this company. To add insult to injury, this company who claimed our music proceeded to then host the Youtube .flv of our cartoon on their website.

    Willva emailed them asking them to take it down and after a long period of time they did. However the matter with the music remained. By the time Youtube finally responded and gave us back the rights to our film (and the income it was generating) the film had already hit it’s peak and now nobody was watching or cared about it anymore.

    All the money from the 2 million hits generated by the ads had been siphoned off by this Fish studio with no intention of ever returning it. I can’t even be upset about it anymore. I haven’t been in this business long but I can already say animators are generally treated like animals, nobody cares about us, and nothing is ever going to get better.

    • Ben Reynolds

      Something similar to this has happened to me as well. Basically anybody can just file a claim on a popular video and collect the ad revenue without any consequence. It’s pretty sickning.

  • Here is my take on the issue: https://www.youtube.com/watch?v=FPFHflVWwew