“This is what it’s come to,” writes the Electronic Frontier Foundation’s Fred von Lohmann. “Teenagers singing ‘Winter Wonderland’ being censored on YouTube.
Not long after von Lohmann called for YouTube users willing to fight YouTube’s and Time Warner’s “January massacre” of fair use principles, the Associated Press hurled copyright infringement claims at an LA street artist who created a popular Barack Obama campaign poster based on an AP photograph.
Whether a video or artistic rendition of a photograph is fair use is likely a question for the courts to decide. The problem is, the only ones with pockets deep enough to prove their fair use rights in court are caving into media giants to save court costs.
Google, a company with so much cash the SEC once warned they may be considered an investment fund, seems on the surface the perfect defender of fair use, especially when so much of its business model depends on fair use survival.
Instead, Google has picked its battles, hedged its bets, and has caved more often than not on the issue. Though known for spreading money around to various issues—spectrum usage, Net Neutrality, environmental causes, etc.—this seems like one battle the company seems unwilling to fight on all fronts.
The company won fair use arguments in the past, most famously against Perfect 10 regarding the indexing of image thumbnails. When Viacom slapped Google with a one billion dollar lawsuit over content appearing on YouTube, the company was obliged to defend itself and has yet to reach any agreement or settlement.
But when it came to linking to and indexing snippets of news stories, or usage of Warner Music tunes in YouTube video backgrounds, Google suddenly became a copyright enforcement media lapdog. Google settled with the AP by licensing AP content instead of sticking to its fair use indexing guns. Last month, YouTube used its Content ID system to go on a deletion spree on behalf of Warner.
The Content ID system is an automatic system matching up audio tracks to copyrighted music files. Hence why kids aren’t allowed to sing Christmas carols there anymore.
Fred von Lohmann
“Fair use has always been at risk on YouTube, thanks to abusive DMCA takedown notices sent by copyright owners…,” writes von Lohmann. “But in the past several weeks, two things have made things much worse for those who want to sing a song, post an a capella tribute, or set machinima to music.”
Von Lohmann fears it will just get worse, and that nothing will be considered fair use any more unless somebody takes these issues to court. That’s why he’s calling on YouTubers who had their videos taken down thanks to Warner Music to contact him. If well-heeled Google’s not going to defend its (and its users’) fair use rights who will?
Thanks to Google’s bending to the AP, the press organization is now emboldened to go after transformative art. The poster, for which creator Shepard Fairey made no money, is a clear instance of fair use, according to the executive director of the Fair Use Project at Stanford University, Anthony Falzone.
Though that assertion is disputed by other lawyers, another argues Fairey’s poster was used for political and civil discourse rather than for commercial usage. In fact, the popularity of the poster likely increased the value of the photo rather than diminished it. The irony now is that the very copyright legislation stiffening penalties Obama voted for during election season will doubtlessly be used to prosecute one his biggest fans.
No one would argue that companies needn’t be aggressive when protecting their intellectual property. The problem here is abuse and lack of willingness to make distinctions between blatant thievery for personal gain and artistic license—even free promotion.
Which is the bigger insult? That the AP and Warner Music don’t understand fair use, or that they just don’t care? One’s thing’s clear. Despite what should be Google’s vested interest in fair use, the company thinks its somebody else’s problem.
