More on, "Where's the Fair Use?"

Where's the Fair Use?  In a courtroom in front of a judge?  Is that even necessary?



I recently linked to a video by Channel Awesome/Nostalgia Critic regarding YouTube's Content ID system.  The video pointed out many problems and issues with the system and the fact that it is in need of a complete overhaul.  It also specifically references what is known as 'Fair Use'.

It's no question that I personally support the objective and the goal of the #WTFU movement.  The Content ID system has been used to remove completely legal video content from YouTube since day one, both intentionally and by accident.  I do not blame YouTube for this, as they are only the ones supplying the tools to the content owners.  It is the content owners who are the ones making the decisions as to what happens to the detected content.  It is not only Hollywood content owners doing so, as the music and video game industry are doing the same thing.  YouTube itself isn't the problem.  You probably wouldn't blame your car manufacturer for a traffic ticket just because it was allowed to drive faster than the speed limit, right?

So, about that Fair Use.  Fair Use is actually not an excuse that allows anyone to do whatever they want with content owned by someone else.  It is in fact a defense which can be used in a court of law.  And most likely, if disputes against these Content ID claims went far enough, the judge would rule in favor of Fair Use.  It shouldn't have to go that far, though.  Unfortunately, the way the Content ID system is being used, and the way the law is currently set to protect said content, the current situation is difficult to fix.  The Content ID system doesn't seem to care what purpose the content was used for, and in the cases where an actual person reviews the content, there isn't much to stop those people from being overprotective.

While I could say that I took a course in college regarding broadcast law and Fair Use, saying that claiming Fair Use means nothing until a judge is involved, instead I will link to this article by the Law Offices of Ryan P. Morrison, P.C. saying the same thing (note I am personally not advertising this law firm, only linking to the information provided).

Thing is, a lot of the laws which define what Fair Use is currently were put into place years ago, before YouTube and Content ID.  It exists in the first place because specific rules and circumstances were not clearly defined (if at all) regarding what was allowed and what actions could be taken in the case of sampling or parody.  Fair Use exists because someone spoke out.  Rules and laws can change.  The Content ID system was designed to save time and money, but has resulted in only costing it for many.

While the future is unclear at this point what will eventually happen to the Content ID system, there is a bit of hope.  YouTube themselves have responded, and even YouTube's CEO claims to be listening to what the community is saying. 

The Content ID system had good intentions, but it's clearly been abused.  The solution is not to remove the system, but to prevent it from being misused.