YouTube, being the world’s biggest online video sharing and streaming service, has become a topic of discussion of ethics in various groups. Everyone can create a YouTube account and start uploading videos and everyone around the world have easy access to this. However, various issues has arises, especially issues on copyright and fair use on YouTube.
The most widely discussed issue on copyright and fair use on YouTube is using copyrighted materials as part of own work, such as for illustration or example, especially when it involves clips from popular materials. With the use of parts of copyrighted materials in their own work, even in a very small portion, may indirectly help them to promote their work If a user wants to use music or clips created by others, that user will need to know the legal implications of doing so. Getting permission depends on the particular piece itself and whether it needs a license or not. In the purest sense, the only time users do not need to secure special permissions to use a work is when that work is in the public domain. Some older works have made their way into public domain and if the user is using works that are not in the public domain, users will need to get a license to use it. The more formal the license, the more protected it is when using it. Users will have to bear in mind that many works such as recordings does not only have a copyright for the song, but also for the recording of the song itself. In that case, users will have to get two licenses to use a copyrighted work. Other than that, there are also users, specifically video makers that quotes copyrighted materials like music, videos and animation not to comment about it, but because it appropriately portrays an dispute or a point. (Centre for Media and Social Impact, 2008) For example, SOFA Entertainment Inc has filed a copyright infringement lawsuit against Dodger Productions Inc, claiming that Dodger had infringed its copyright when Dodger uses a seven-second clip of Ed Sullivan’s introduction of the Four Seasons on “The Ed Sullivan Show” and could not confirm the unlicensed use of the clip as ‘fair use’. The clip was used to mark a historical point in Four Season’s career in Dodger’s musical on “Jersey Boys”. The court held that, using the clip for biographical significance, Dodger has diffused it with new meaning and had done it without seizing any demands that was available for the original clip. Dodger was entitled to prevail on its fair use as a matter of law and to retain the attorney’s fees award granted by the district court. (Standford University Libraries, 2013)
Apart from that, there are issues on YouTube users that comments or critics a copyrighted material. It is a trend for some YouTube users to make a video, giving their opinions on copyrighted materials that are published in the market. These users may add improbable subtitles to the video that they have made. These video makers may create a fan tribute which offers positive commentary or even ridicule a cultural object which gives negative commentary. They may comment or criticize indirectly such as by the way of parody, as well as direct commentary or criticism. These makers may seek critics by others, who provides the commentary or includes it. These YouTube video makers have every right to use as much of the original material as they want in order to put it under certain scrutiny. Comments and critics are at the very core of the fair use doctrine as a safeguard for freedom of expression. These comments may be explicit, as might be achieved for instance via the addition of narration or implicit that may be accomplished through recasting or reanalyse the original. In the case of negative commentary, the fact that critics may cause economic damage for the quoted material, as what a negative review or a scornful piece of ridicule might cause, is unrelated. The use should no be so extensive or pervasive that it ceases to function as critic and instead becomes a way of satisfying the viewer’s taste for the thing or the kind of thing that is being quoted. In other words, the new use should never become a market substitute for materials or other similar materials. To give an example, on 15 February 2016, Ethan and Hila Klein posted a video on YouTube titled ‘The Big, the BOLD, The Beautiful’. The video was used to criticise a video by Hosseinzadeh, where he portrays his character “The Bold Guy” with the attempt to pick up women. The Kleins video shows short clips of Hosseinzadeh’s video included with their reactions, criticism and various jokes that ridicule the original work. Hosseinzadeh filed a Digital Millennium Copyright Act (DMCA) takedown notice against Kleins’ video in 23 April 2016, requesting for the removal on copyright grounds. YouTube complied but was quickly responded by the Kleins as they filed a counter-notice-requesting that YouTube restore their video. The video would have been restored in two weeks if it were not for the lawsuit. About three days after the counter-notice, a lawsuit against the Kleins was filed by Hosseinzadeh, which caused the Kleins to post a video about the case with the title ‘We’re Being Sued’ on 24 May 2016. After three days, Hosseinzadeh filed an amended complaint by adding allegations on defame to his lawsuit based on the content of Kleins’ video. However, after the initial controversy, the lawsuit seems deteriorated. In June, H3H3 filed a motion to dismiss, it was denied and gave both sides an opportunity to look for discovery and set up motions for summary judgement, which was done by both sides. The judge ruled those motions for summary judgement and sided completely with the Kleins, ruling their use to be fair use on 23 August 2017, dismissing alleged misrepresentation of the Kleins counter-notice and dismissing defamation claimed by Hosseinzadeh, resulting in H3H3 winning the summary judgement. (Jonathan Bailey, 2017)
Last but not least, issues where owner of copyrighted work had not authorized or given permission that their video being used for viewing, and thus encouraging viewing of copyrighted works on YouTube. Currently, it can be seen that there are users that copies a copyrighted material, such as album, songs or video and puts it onto YouTube without permission and thus enabling other users to view the content without paying to the copyright owner. (Sean Flynn, 2017) This can be seen in the case where Viacom sued YouTube for $1billion in damages concerning this issue on March 2007. Viacom is a corporation that owns MTV, VH1, BET, Comedy Central and other popular media outlets. Viacom said that the video streaming site had engaged in copyright infringement by allowing users to upload and view copyrighted material owned by it, listing some 150,000 clips of Viacom’s programs, such as “The Daily Show” or “SpongeBob SquarePants.” The complaint further said that YouTube was promoting and engaging in the infringement. In 2008, the case took a controversial turn , when a court requested YouTube to provide data on the viewing habits of all users who watched videos belonging to Viacom on the site. As expected, this raised a lot of privacy issues since users could be identified by combining their IP addresses and log in names. About 12 TB of data were handed over following the request. Google fought back and said that some 18 different marketing agencies were hired by Viacom to upload content to the site, which means it was unreasonable for the company to know which videos were uploaded without permission. Later in 2010, when judge, Loius Stanton ruled that Google was protected by provisions of the Digital Millennium Copyright Act, the company argued that it was not alright for it to police every uploaded video, since it would contravene the structure and operation of the DMCA. The judge eventually agreed with this and ruled that it was enough that YouTube had successfully taken down a huge number of infringing videos as a result of the lawsuit. Then, Viacom appealed the decision in front of the court again in 2012, trying to disqualify YouTube from safe harbor protection after some internal emails between employees indicated that they were aware of specific instances when copyright was infringed. The appeal court eventually decided that the case needed to reach a jury trial. Heading back to court in 2013, the judge once more decided that YouTube had no actual knowledge of any specific instance of infringement on Viacom’s content and therefore hadn’t turned a blind eye. The mass media company appealed this decision again, which led to out of court settlement. However, the settlement details were not revealed publicly, although sources suggest that the deal does not involve any financial elements. (Gabriela Vatu, 2014)
In a nutshell, the law does not provide a clear or direct answer, especially when fair use is applied in a specific situation as each must rely on its own unique facts. In order to achieve a decision, each proposed used shall be carefully analysed in terms of the four factors of the fair use doctrine. Reasonable minds may differ on the applicability of fair use in particular circumstances, and results in some risks that incurred in arriving at a decision. If the work leaned in favour of fair use based on the factors in fair use doctrine, the proposed use is most likely allowed without permission, else if most lean towards the opposite direction, the action will most probably unfit the fair use exception and permission from the copyright holder shall be required. (The California State University, 2007)