1. Don’t Take Services for Granted and Be Prepared to Defend Yourself

When someone has been uploading content to YouTube as much and for as long as I have – over 140 videos so far over the past 4 years – it’s easy to feel comfortable, even when the notifications of copyright violation start popping up in one’s inbox. For three years, up until the start of 2009, of the many videos I uploaded – some consisting of completely original material, some consisting of clips taken unadorned from existing material, and the majority a combination of both – I had only received one copyright violation notice through YouTube (ironically initiated by a company whose owners I know personally and consider friends!).  Anyone who spends more than a few minutes surfing videos on YouTube has to wonder how seriously the company takes copyright enforcement, given how much copyrighted material is freely available.

But apparently in 2009, YouTube has adopted a firmer stance towards enforcing copyright claims, whether because more claims are coming from copyright owners (Warner Music being a biggie, having withdrawn all of its content from the site after failing to agree to terms with YouTube), or because YouTube has thrown more resources towards enforcement.

So for those of you out there who post work on YouTube or other sites that may possibly run into a copyright claim and be removed, be sure to have these links at the ready:

Instructions for filing a DCMA or International Copyright Counternotice: http://help.youtube.com/support/youtube/bin/answer.py?answer=59826&topic=10554

Printable online form for drafting and printing out a DCMA counter-notice:

http://www.chillingeffects.org/dmca/counter512.pdf

Note that it may take between 10-14 days for this claim to be processed and your video to be put back up.  I consider it the price one has to pay for working with YouTube.  Despite the headache this ordeal has given me, I still think YouTube is a prime place to go in terms of reaching an audience, as it still has 10 times the traffic of its nearest competitors, Daily Motion and Veoh. If anything, content creators like myself who use existing content under fair use laws have as much of a claim to a site like YouTube as anyone else.

Additionally, there has been talk amongst my peers about setting up a self-contained online resource for multimedia works of film and media criticism that operate under terms of fair use.  Should a site like this materialize, I would fully endorse it and have my own clips hosted by it.

2. It Helps to Have Passionate, Eloquent Friends

I give a lot of thanks to the dozens of friends and supporters who wrote to me via email, Facebook, or on this and other blogs in the past week expressing concern, outrage and solidarity.  I especially thank the following people (and many others who I may not know of) who wrote about this issue on their sites:

- Catherine Grant at Film Studies for Free (amen!) devoted multiple posts to my saga, and more importantly took it as an opportunity to gather as many relevant links and resources as she could find to educate readers on fair use and user-generated online video. By all means bookmark this link and this link if you want a one-stop resource to understanding the rights and limits of fair use.
- Karina Longworth on Spout broke the news. I blushed when I read her assessment that “These videos represent the first real advance in film criticism as an art form in, at least, decades.” Now if I can just get her to record that and loop it on my iPod…
- Matt Zoller Seitz of The House Next Door, who wrote a long, eloquent post that’s perhaps been the article most cited by others about this imbroglio. My favorite passage opens quite a window to what wonders lie beyond Big Media’s narrow vision of the future of multimedia creativity and art:

For the first time ever, when someone says to a critic, “Show me the evidence,” the critic doesn’t need to unlock a film archive vault or even haul out a DVD player to produce it. He can call it up online anytime, anywhere, for anybody… The implications are astounding. The technology’s potential has only begun to be tapped. And as you know, there’s more to it than classroom-style argumentation. Digital editing software and DVD-ripping technology permits anybody with filmmaking skill and the right tools—say, Handbrake to rip discs, MPEG Streamclip to convert them to edit-able format, and iMovie or Final Cut to put the pieces together—to manipulate commercial media in all sorts of ways, then post the result on the Internet. Suddenly mass entertainment became as malleable as paper or clay.

- Aaron Hillis at the GreenCine Daily, who, in addition to writing an impassioned defense of my work, took the opportunity to combine some photos revealing my penchant for karaoke bars with his Photoshop-enabled wit. I can’t wait to get him back for this…
- Scott Macaulay at Filmmaker:

What I would point out is that these issues are not new — documentary filmmakers have been grappling with the limits of fair use for years. (And it’s why some clip-oriented docs, like The Celluloid Closet, have big budgets and an array of big traditional media funders while others, like L.A. Plays Itself, have no such backers and only play on the non-profit circuit.) The problem in most fair use cases is that while a creator may be legally right, in the absence of clear test cases partners on the distribution and exhibition end are usually uninterested in funding the massive legal fees required to embark on a fair use battle. The Center for Social Media at American University has done some work in this area. Particularly noteworthy is their “The Code of Best Practices in Fair Use for Media Literacy Education.” The document is intended for educators, and obviously an online essay outside of the classroom is slightly different, but much of the discussion in this document is still relevant. Issues surrounding fair use and our emerging “remix culture” are also at the center of Lawrence Lessig’s new book Remix, and Lessig is interviewed by Weiler in the upcoming Filmmaker article.

- Nate Anderson at Ars Technica, the first article to come from outside the admittedly insular world of online film and break fully into the realm where digital technology, arts and the law intersect:

It’s one thing to go after complete film clips that are five minutes, ten minutes, fifteen minutes long, and complete copies of films are obvious and totally acceptable targets for DMCA takedowns. But given all that low-hanging fruit to pluck, it’s a mystery why the content industry continues to harrass these other sorts of use that, if anything, would drive more viewers to watch the films in question.

These kinds of short-sighted legal actions have the unintended effect of revving up opposition to all rightsholder complaints, legitimate ones included, and they encourage a disrespect for copyright. If the content industry is serious about abiding by its own set of UGC principles, granting far more leeway in areas that simply don’t matter would go a long way toward keeping people on its side when content owners protest far more offensive practices.

Thanks also to Jim Emerson, Matthew Kane Parker and Luke McKernan for their posts, as well as any others I may have missed.

Thanks to these and other posts, and the lengthy threads of comments they inspired, YouTube finally took notice and send me a personalized email, four days after shutting down my account, advising me on what steps I could take to get it reactivated.

3. Fair Use Rights Isn’t the Same as The Ability To Enforce Them, or Why YouTube May Not Be to Blame

“One thing I’ve learned from this though that rights don’t mean jack unless you’re in the position to uphold them.”  I wrote this to a friend the day after my account got pulled. I originally was referring to myself and my inability (or so I thought at the time) to defend my rights to fair use, but my friend’s reply assumed that I was referring to YouTube/Google!  Thinking about it further, he was onto something. I’ve received many emails, some from US copyright lawyers, that have yielded some pragmatic insights (I hope they don’t mind if I share some of their comments anonymously, because I do think they are valuable):

[YouTube] is a private enterprise; they’re entitled to make the calculation that keeping his postings on their site, under threat from Big Media, is more trouble than it’s worth.  That’s a completely legitimate business decision for them to make… It is not their mission or purpose to defend users’ postings against claims of infringement, and they have little motivation to do so…

YouTube is a website, privately owned, by a company that’s in business to make
money, not to guarantee the free speech rights of everyone who posts something.  YouTube
is entitled to take down anything on there, for any reason or for no reason: because it’s
pornography, because it’s indecent, because it portrays Youtube in a bad light, or because
it creates a risk of monetary loss.

Matt [Zoller Seitz]‘s anger [in his article], and his [proposed] lawsuit, should be directed at the content owner(s) (in this case, the studios), who are sending frivolous takedown notices to Youtube. (I say frivolous because, from what I’ve seen, Matt’s fair use defense is a clear winner here.) It’s not YouTube’s policies that are the problem here — it’s theirs.

Another email I received, while agreeing that YouTube was well within its rights to act as an online “saloon keeper” mediating disputes between two parties taking place on its premises, also had words of caution for how YouTube should manage the impact of these incidents on its own brand value:

YouTube chooses to act conservative in a playing field that’s out-and-out progressive. They’re driving with the brakes on. Forward-thinking brought them where they are today and I very much doubt that this new taking-down policy will do their business any good. It goes against everything that made YouTube popular in the first place and, in the end, modern consumers will go wherever they get more freedom.

In the meantime, it may very well be true that all roads ultimately lead to Big Media (or as others have suggested, the copyright laws passed by Congress that Big Media has had no small measure of influence in writing).  They’ve spared no expense in developing new technologies that can crack down on any possible acts of copyright violation. Witness this excerpt of an email I received giving background on INA, the party responsible for reporting the copyright violation to YouTube that triggered the suspension of my account:

“Here is an article I found from Dec 22, saying that the French INA pressed charge twice against YouTube, because of the presence of counterfeit videos on their site, containing copyright protected oeuvres, and because of Google’s unreliable watermark detection system (Video ID).
So it wasn’t against you personally, or that film in particular. It must be a global campaign to hunt down fingerprints undiscriminatively. And they can’t be bothered to look into the details of Criticism Fair Use, if they don’t actually watch the videos.

This war will continue to be waged so long as Big Media’s fear that they are losing millions of dollars to piracy overshadows their ability to comprehend how they could stand to benefit – and even profit – by utilizing user-generated appropriation of copyrighted materials to their own advantage.

4. How To Join the Fight for Digital Rights:

Throughout my travails, here are three of the most widely cited resources and authorities, among the many that are out there on the issue of copyright law and fair use – many of them, and many more, are also linked at Film Studies for Free:

- The Electronic Frontier Foundation confronts cutting-edge issues defending free speech, privacy, innovation, and consumer rights today. Thank you especially to Fred von Lohmann for his counsel. Here’s some information I received from him regarding one of EFF’s current campaign:

EFF has asked the Copyright Office to create an exemption to the DMCA to permit DVD ripping for fair use activities. Public comments supporting the proposal are due on Feb. 2, and it would be very helpful if content creators write a letter describing their work, and why DVD ripping is necessary for it (particularly why using alternatives like “video capture” is inferior — the movie studios always say that everyone should just use video capture cards instead of ripping).

If you’re interested, EFF’s proposal to the Copyright Office can be found here (the DVD ripping proposal starts on page 13):
<http://www.eff.org/files/filenode/dmca_2009/EFF+RM+proposals.pdf>

Such statements, as well as inquiries or requests for help, can be sent to information@eff.org

- The Center for Social Media at American University has a free and invaluable publication titled Recut, Reframe, Recycle: Quoting Copyrighted Material in User-Generated Video. I read this publication last year and it reassured me that the video essay work I was doing was strictly within the realm of fair use. (Of course, feeling that you’re within your rights doesn’t prevent other parties from violating them…)

- Lawrence Lessig is a Professor of Law at Stanford Law School and founder of the school’s Center for Internet and Society. For much of his career, Professor Lessig focused on law and technology, especially as it affects copyright. The newest of his many books on copyright is Remix, which discusses the evolution of youth “remix” culture, its many social benefits, and how copyright law is hindering its growth.

Also, on the issue of how free content is evolving online, here’s news from Scott Macaulay’s blog: “Lance Weiler‘s latest piece in the new Filmmaker… talks about the dangers of filmmakers aggregating too much of their data on social networks that can delete their accounts — and this data — at the blink of an eye. He’s mostly talking about social networking data, but his argument applies to content as well. In the piece he directs people to the Data Portability Project, and I’d recommend people check out this organization’s good work.”

You are welcome to contribute additional resources and links in the comments section.

Thanks everyone for your support.