Where Is The Fair Use? Where It Has Always Been.

Copyright law is not the most difficult area of law. Contracts, Torts, and Constitutional Law are massive categories that cover a lot of dense and complex content. However “easy” copyright might be, it is still an area of law with technicalities and layers of exceptions and conditions. Though copyright law doesn’t have the Rule Against Perpetuities or questions of Personal Jurisdiction, there are other complications: the triennial review process for 1201 research exceptions, or the federal preemption exemptions under the 1976 Copyright Act for pre-1972 recordings, for example.

Fair use is a sliver of copyright law that doesn’t seem complicated, but people can still get it wrong. In programming, brackets and semicolons matter if you want your program to run and not crash. In law, words and details matter if you want a favorable result. Being sloppy or lazy, generalizing broadly, or simplifying and condensing are all quick ways to lose in law. The fair use doctrine can feel easy for an educated adult to grasp, but there are important details in this tiny section of US law.

Fair Use Is Not Everywhere

Fair use is not a defense against the abuse of a copyright claim system. A huge part of the #WTFU discussion has been the complaint that takedown notices (or strikes) are issued by people who don’t have any claim to the copyright. This is a problem, but it is not a fair use problem. To use the fancy words: The copyright abuse of which most YouTube content contributors complain is a failure to meet the definitions in section 101, or to meet the cause of action available in section 501(b). Section 107 exceptions to copyright are not implicated. Therefore, there is no “fair use” claim.

Fair Use Is Not Pretending You Didn’t Do It

The true fair use part of #WTFU is that copyright holders issue strikes against critics who (arguably) deserve the protection of fair use. The unsatisfying answer is that this in accordance with the law. Section 107 of the United States Code is an exception to copyright infringement. Fair use is really a defense that says, “Yes, I am violating copyright, but I have an approved reason to do it.” Fair use admits copyright infringement. It does not replace copyright infringement. (The 9th Circuit in Lenz notwithstanding.)  In this case, the law is designed to defend accused infringers, not prevent the accusation.

Fair Use Is Not The Money Maker Yo’ Federal Statutes Gave Ya

Fair use is not meant to protect commercialized activity. Whether Nostalgia Critic is covered by fair use is an interesting question, because he’s “doing criticism,” but he’s also “doing entertainment” and monetizing (even if indirectly) the video. * Fair use is not a checklist that gets someone a total exemption from copyright infringement if any single box gets ticked. It is a balancing test, and all of the factors get considered. Balancing tests make for the least clear and predictable answers in law.

The Best Case For Fair Use On YouTube?

The strongest fair use argument is for “Let’s Play”-style content. Games are meant to be played. They are supposed to engage the decision-making faculties of the brain, in the same way that movies are meant to engage the sight and hearing of the audience. In an important way, filming someone playing a game is like hearing someone read a movie script. Not only is it transformative, but it changes the economic impact analysis. Uploading music or film to YouTube may well replace the original content, but I disagree that footage of someone else playing a game is a replacement for playing the game.** A court might not see things this way.

Situation Normal

The daily internet realities of copyright and trademark don’t match US law. The real problem is not that Google*** is failing to deliver on the legal promise of FAIR USE. The problem is that the law is more or less working as it’s written. There are questions to ask here, but I don’t think Google has those answers.

*There have always been book reviews written for profit, as well as parodies and commentaries of works. But not every case of journalism, parody, or fandom wins under a section 107 defense. And that’s why it’s a grey area- or at least more grey than people realize. It is clear that 17 USC 107 was never meant to support commercial entertainment enterprises, so it is a little off-kilter to hear people invoke it as essential to their livelihoods. However, it’s also clear that Title 17 of the USC was never meant to prohibit criticism or education.

**It is very important not to confuse “Let’s Play”-style content with eSports, because footage of someone else playing a game is a very good replacement for … that person playing that game.

***All of this ignores some relevant DMCA analysis and distinctions between US Federal Court and YouTube’s Content ID System.

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