My name is danah boyd and I'm a Principal Researcher at Microsoft Research and the founder/president of Data & Society. Buzzwords in my world include: privacy, context, youth culture, social media, big data. I use this blog to express random thoughts about whatever I'm thinking.

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Code of Best Practices in Fair Use for Online Videos

Fair use is an uber tricky legal issue. It is meant to provide protection for people to use copyright material in limited ways without seeking permission. (For example, fair use allows academics to comment on copyrighted content as part of their work.) The problem with fair use as a legal doctrine is that it’s defense-only. Anyone can sue you for violating their copyright and you can declare fair use, but you will still have to pay onerous legal bills to defend that claim. Given the typical economic inequality between copyright holders and fair use practitioners, just the threat of a lawsuit tends to silence fair use practitioners. It’s really a sad state of affairs. The lack of clear guidance means that creativity tends to be squelched as copyright holders systematically manage a campaign of terror, even when they’re not in the legal right of way.

Fair use is becoming a bigger and bigger issue as more people get involved in creative acts that involve others’ content. Fan fiction, video remix, video parody, etc. are all practices that involve others’ copyright, but are also arguably fair use. While these practices predated the Internet, the Internet makes them much more visible. This means that more people get to see such creativity, but it also means that the copyright owners tend to get more outraged. And they tend to go on cease and desist rampages, even when the practitioners are engaged in fair use practices.

There’s currently no legal solution, but some of the best minds in cultural practice and law have come together to develop a “Code of Best Practices in Fair Use for Online Videos” (organized by the Center for Social Media). This document is not a legal instruction guide, but a set of best practices. This document also opens up an opportunity for good dialogue about the relationship between law/policy and cultural practices. I commend Pat Aufderheide, Peter Jaszi, and the members of the committee (Michael C. Donaldson, Anthony Falzone, Lewis Hyde, Mizuko Ito, Henry Jenkins, Michael Madison, Pamela Samuelson, Rebecca Tushnet, and Jennifer Urban) for putting together a tremendous set of guidelines for practitioners. Hopefully this will help everyone involved.

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4 comments to Code of Best Practices in Fair Use for Online Videos

  • The problem with this, it takes a starting point and assumes all users are the same. E.g. YouTube, if you Google / that legal case looked at my stats, they’d see a repeated viewing of certain videos, and thus could on its face value (and a hearing norm) be described as non fair use. This is a rather simplistic view, and doesn’t take into account other variables.

    I own legal copies of the music I view, but I will watch the video repeatedly (a) for subtitles or (b) for a visual representation. Why? Because I’m deaf. It takes me many many views to understand the beat, appreciate the song. I can watch something to death.

    However, from a statistical viewpoint … it won’t make any sense, and a hearing majority might assume “she’s breaking the law”. When in fact, I’m just trying to get around structures that exclude me. It fails to take into account how certain cultures exclude (e.g. lack of accessibility through traditional music channels, etc).

    It is vital that minority groups are included in any best practice guidelines, and they aren’t just constructed to suit the majority, or rather based on unintentional assumptions due to a lack of undesrtanding.

  • Alison, thank you for the important reminder that best practices should be inclusive. We think you’re in a great position here. Fair use applies (in some cases) when a new creator uses copyrighted material, *not* when a user watches it. So watch as many times as you like! And when you make your own videos, please consult the Code (centerforsocialmedia.org/remix), which as danah points out, takes the worry out of the question, “Is this fair use or do I have to license this material?” Since the Code is written to have broad and flexible principles, they can apply to a wide variety of situations.

  • I recently got a revenue-sharing offer on one of my more popular YouTube videos, but I’m not sure if I can legally take it or not. Google will automatically send out offers to YouTube users to turn on revenue-sharing for their popular videos. The video in question is tutorial on how to play popular Guns N Roses song Sweet Child Of Mine.. on ukulele. The arrangement that I teach on ukulele is completely my own, is in a different key than the song is normally played in, uses some different chord progressions, and leaves several parts of the real song out. It’s recognizable, but still very different. There are also no lyrics in the video and the arrangement is intended to be instrumental only. Does fair-use protect me in this instance? Would I be able to enable revenue-sharing for this video? Even if fair use did protect me, I’d wonder if Google would be too nervous to approve the video for revenue sharing anyway.. What do you think?

  • How delightful that you got a chance to benefit financially from your creative work! This is a great moment to realize that fair use is NOT, repeat NOT, tied to noncommercial use (even though that can be one consideration). Most fair use, including the extensive fair use employed by all the film studios and TV programmers, is commercial use, and people benefit from it financially. If it was fair use before revenue sharing, it’s fair use during and after revenue sharing as well. It’s fair use as much if you put your video on a DVD as it is if you put it online. So you just need to be confident that your unlicensed use is fair in the first place. Can you explain to others how and why this use deserves to be unlicensed? You’re on the most solid ground when the use is 1) transformative, and 2) appropriate amount given the transformative use. Your use of a different key etc is probably not as significant as the teaching purpose. You also need to ask yourself if you have a teaching justificaiton for using the whole work (for instance, do you need to take people through the whole song in order to teach them all the elements? Or could you teach them, say, one refrain and have them get all the changes needed?) You may want to look at the Documentary Filmmakers’ Statement of Best Practices in Fair Use as well as the Code of Best Practices in Fair Use for Online Video, both of them at centerforsocialmedia.org/fairuse.