My First Day at (YouTube Copyright) School

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As you may have heard, yesterday Google unveiled its new YouTube Copyright School.  YouTube users who are alleged to have violated copyright law must watch a video discussing some of the basics on copyright law (more on that later) and pass a quiz or risk having their account deleted.  The idea isn't all bad: educating the public about copyright law is a good thing, and so is stopping copyright infringement.  But this new Copyright School has some serious flaws, and I think on the whole will only discourage the creation of new (legitimate) works while doing little to actually prevent infringing uses.

First, some say the Copyright School is like mandatory traffic school after you get a ticket, but I disagree.  This is like mandatory traffic school after someone calls the police station and says they saw you run a red light.  Of course, as a private entity, it's perfectly within Google's discretion to punish its users before it's established that they actually violated the law, but that doesn't make it fair, or good policy.  Also, you may notice that the new Copyright School requirement is a little one-sided: users accused of infringing copyright must take the course, but copyright owners accused of making false or fraudulent infringement claims don't.  This is especially odd when you consider that the works most often subject to copyright abuse are very likely to be important and valuable to society (for example, politicians making an unmerited copyright claim to censor opponents).

The Copyright School video itself also has some problems. About two and a half minutes in, the video singles out remixes and mash-ups for a special warning.  Of course, the video doesn't explicitly say anything that's legally incorrect: remixes can potentially violate copyright law, and the fair use exception is the most likely provision to exempt a remix author from liability.  But the video implies that fair use protection is a non-starter, and users shouldn't even bother with it.  Once the fair use talk begins, the narrator starts imitating the fast-paced verbal fine print that you hear at the end of prescription medicine commercials while the screen fills up with a small-print summary of fair use, which I found difficult to pay attention to anyway because I was too distracted watching Russell try to push the fair use text off the screen.  And that's it—no explanation, no examples, no nothing.  Even though every other part of the video manages to explain the law in simple, clear terms, the clear implication here is that fair use is way too complicated to understand, and users should only rely on it if they're willing to pony up for a lawyer to defend them.  Sadly, one could argue that this is actually a (cynical but) true description of the state of play in fair use jurisprudence, but it goes against the whole import of the Copyright School.  My sense is that the video is supposed to give users a basic, accurate primer on copyright law, not to discourage people from relying on established statutory protections.

Of course, right now Google is clearly under a lot of political pressure to show they don't support piracy, and seems to have responded by becoming more risk-averse when it comes to possible infringement by users.  Just last week members of Congress grilled Google for not doing more than it already does to block search engine users from finding infringing uses of content on the internet.  Add to that Viacom's current lawsuit, trying to hold YouTube liable for infringement by users, despite the safe harbor provisions of section 512 (PK's amicus brief is available here).  While I can see why Google has started to roll out new punishments for alleged infringers and sacrifice false positives for the sake of preventing actual infringement, I just can't support a program that discourages the creation of new, creative, perfectly legal works.

I went ahead and took the Copyright School quiz (if for no other reason than to get a good score and tuck it in my PK promotion file), and was somewhat surprised to find that one of the questions on my quiz was wrong.  Question 4 on my quiz read: "Copyright infringement occurs when a copyrighted work is ________ without the permission of the copyright owner:" and then asked me to choose between reproduction, distribution, performance, and public display (or all of the above).  Two problems here.  First, section 106 only gives authors the right to public performance, not all performance.  Second, the question assumes that if you don't have the copyright owner's permission you must be infringing, when the Copyright Act has no fewer than sixteen separate sections that establish limitations and exceptions to the author's rights (sections 107-122).  For example, if your use is a fair use, you need no permission whatsoever from the author, and you've committed no copyright violation.  What's more, Google knows this, because it's relied on these statutory exceptions in court time and time and time [pdf] again.  I don't think Google actually means to take a "fair use for me but not for thee" position, so perhaps we can give Google the benefit of the doubt and assume it was intended as a trick question.

When I refreshed the page to take the quiz again I saw more questions that caused concern.  "The following is not a good subject for your YouTube videos...."  But "good" is a normative term, and copyright law has nothing to do with whether your work is good or not—just because your use is legal doesn't make it good, and vice versa.  What Google really seemed to mean by "good" was "lower risk of infringement allegations."  Again, as a private company it's Google's prerogative to decide what videos it wants to encourage users to post based on its own value judgments, but this seems to go against YouTube's reputation as an open space for users to create and express themselves freely.

Next I got this question:

"The following could be an example of originally created content:

 a) Video content "ripped" from a DVD

 b) Music downloaded from another website

 c) Music "ripped" from your own CD collection

 d) Video created with your own webcam or camcorder"

Another trick question?  The truth is, any of these could be considered originally created content, depending on how you're defining original, who is the "creator," and what subsequent uses you envision.  In the video, Google dismissively describes remixes as merely "clever," but gives Russell an enthusiastic "That's more like it!" when he makes an "original" YouTube video.  After all, reasons the narrator, "original content is what makes YouTube interesting."  This is a little confusing—does YouTube discourage derivative works because of its litigation risk analysis, or because it thinks they're artistically inferior to "original" works?  The latter is certainly implied, but how can Google take a normative stance against derivative works when its own Copyright School video uses pre-existing characters: Russell and Lumpy from the Happy Tree Friends?  If purely original works are inherently better than derivative works, then why did Google not make up entirely new characters for its video?  What's more, Lumpy and another HTF character, Splendid, are generally considered to be loosely based on (or possible parodies of) two other cartoon characters: Rocky and Bullwinkle.  I think that's great, and I am certain Google ensured that its legal ducks were in a row before publishing the video, but it's interesting to note that Google tells us that only "original" work creates value in society while building on the creative works of others which themselves were built on the creative works of others to create its video.  This conflation of legal status and inherent artistic value troubles me, as I imagine it would trouble anyone who does not want the meaningfulness of their art measured by legal analysis.

There's another problem here, though—the video seems to define "original" works as "not built on anything else," and more deeply, assumes that such works exist.  This is an issue that’s bothered me for a while, but I’ll wait to talk about this point more in a separate blog post next week.

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