As those who are either members of the Consortium or who follow C3 regularly may know, we are in the process of doing some in-depth research into YouTube and the types of content that is most prevalent on the video sharing site. With that in mind, we have been paying more attention than ever to what is happening in this space. With the recent launch of the tools designed to cut out the improper use of copyrighted material, or at least offer copyright holders the opportunity to profit from the content's appearance on YouTube by offering ads, I fear that both fair use and the benefits to producers are getting lost in the process.
Let me explain what I mean. It has to do with what I feel is a very legitimate and fundamentally important aspect of YouTube: quoting. There is a substantial amount of copyrighted material on YouTube--of that, we can all surely agree. However, there is something fundamentally different about a segment from a show, a funny bit or a suspenseful bit, that is quoted in particular, versus the many people who post "last night's episode of X, Part I of V." One is trying to find the way around distribution; the other is about sharing a snippet of content that points back to the larger work, pointing to the proselytizing activities that are vital to a fan community and benefit both the fan sharing the link, those who click on the link, and the media company which the quote points back to.
Unfortunately, everyone involved in this process seems to be grouping quoting in the same basket with blatant piracy, and they are clouding the question of fair use and copyright in a way that I would argue does no one any good. Gigi B. Sohn of Public Knowledge was quoted in David Kravets' Wired story as saying that they "don't think that any automated process will be able to determine whether a consumer's fair use rights are being violated." I concur.
But this is about more than fair use, a topic I feel very passionate about in the first place. This is also pragmatically challenged. I was scanning YouTube and found videos pulled that were 10 minutes in length (at the maxmium for a YouTube video) and the second or third part of an episode that had been posted in full through chapters, alongside 30-second "quotes" from South Park. These two content types should not be lumped into one group, and doing so muddies the waters in a way that actually makes it harder to effectively police copyright violations.
I wrote in January of quoting, particularly mash-ups, that "these make vibrant marketing tools, as they show enough content from your show to whet others' appetites (if the show's good, anyway), without users being able to plunk the whole show up for free. I think people very well should be upset about piracy, but quoters are not pirates." See more on my concept of quoting here and here In the latter piece, I discussed the possibilities of being able to monitor online content, concluding that:
Identifying blatantly pirated content is an issue, but I've written about this before and will reiterate--the problem with the industry is that it's casting its net too wide, ignoring the issue of fair use completely and likening quoting with piracy. I think the most effective form of policing this content, of getting the "genie back in the bottle," is not trying to put the whole genie back in. After all, and they'll have to learn this eventually, that genie wants to stay out...it's not just hanging around for three wishes. And the industry really only has one for video sharing and quoting and piracy... pleasegoaway...pleasegoaway...pleasegoaway...
Others, such as Rich Pearson, have discussed the many stumbling blocks raised by instituting such a tool, such as whether Google should apply it to its business at large. These questions, which Rich lists, come in addition to--or at least separate from--concerns about fair use, since automated tools perhaps have a hard time deciding the context necessary for protecting the use of parody or the type of quoting that I feel is unjustly lumped into "copyright violation" territory.
With some movement made on getting screen captures accepted as fair use (see Tom Rhodes' article in The Escapist for more), the question remains how to handle the many legitimate uses of video, such as the quoting practices that are of such interest to me. This also comes after a spokesperson from Nickelodeon spoke out that humorous mash-up videos fall under fair use of their copyright content. For more on that, see Brooks Barnes' New York Times piece on the issue.)
By the way, a really interesting piece on user-generated content is available in this account from Anne Helmond of a talk by Lev Manovich.
I'd love to know what you all think about my concerns. Unfounded? Distorting fair use? Or asking too little? Feel free to e-mail or comment if you'd like to talk.