Today, Google announced that it would create a sort of legal defense fund for fair use YouTube videos that have received DMCA takedown notices. Under the new program, Google has selected a handful of videos as clear fair uses, despite accusations of copyright holders, and will indemnify the uploaders for up to $1 million in legal fees and possible damages if the rightsholders sued for infringement.
I have to admit that I laughed out loud when I heard this. It’s a hell of a statement, and a nice gesture for Google to put its money where its mouth is, but it seemed like a gesture. After all, who would bother to go up against Google on a small-time copyright infringement case about some random YouTube video? And since Google picks the cases it thinks are the strongest, it’s not putting a lot on the line—it can choose only the most egregious takedowns of clear fair uses.
But while this means that Google isn’t likely to spend much, if any money, in litigating these cases, the program still does two very important things. First, it does in fact protect those uploaders. By giving these videos a stamp of approval, Google’s legal team will make the sort of person who sends a bogus or careless takedown notice think even harder about filing a bogus lawsuit. That sort of reassurance can be enough encouragement for someone to put back a video. Oftentimes, someone receiving a takedown notice can shy away from exercising her rights to have it put back because doing so exposes her to a lawsuit. With this sort of protection, much of that fear disappears.
But perhaps the more useful aspect of the program is that it sets a clear example of what fair use is. As videos are added to the program, other users will have a useful set of models that show what Google’s lawyers, at least, are confident is fair use. That information can help an everyday YouTube user in ways that more text-based and specific guides (for educators, etc.) might not.
And this collection of videos sets an example for far more than just other video creators. The set of fair uses on display can act as a living example of the predictability of fair use. Too often, the doctrine is considered hazy or indefinite or impossible to determine. And while there are lots of cases that can exist in a gray area, there’s even more cases that actually are pretty black or white. Most people have seen clearly infringing videos; this program will show a wider audience clearly non-infringing videos. That’s particularly important in the face of other countries who have yet to adopt fair use as a limit on their copyright laws, and have been told that it’s too unpredictable for them to rely upon.
So while the direct effects on individual cases are likely pretty small, there are likely a number of good downstream effects for fair use from this project. Users and other jurisdictions get a nice set of fair use examples, possibly encouraging more fair use and discouraging bad takedowns, and Google gets relatively low-risk kudos for defending some of their users. That’s worth at least a small percentage of a million bucks.