October 17, 2007
Pragmatically Challenged: Where Do Quotes Fit in the YouTube Copyright Solution?

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.


On November 10, 2007 at 11:37 AM, Florence Gallez said:


After reading your interesting post on the finer issue of quoting in the currently very hot fair use-copyright debate, I thought I would send you a link to Reuters's freshly published report on Prince's heavy-handed attempts to protect his IPRs and what many describe as trying to police the Internet. [See here below]

The news that he has threatened to sue thousands of fans for breach of copyright, provoking an angry backlash and claims of censorship, has now reached the mainstream media, with reports in The Washington Post, the Guardian, Reuters, Yahoo.com, and ABC News, among others.

This is perhaps not directly related to quoting, but I think that the main issue you identified in online video sharing - that the industry "is casting its net too wide" - can also be observed in Prince's own IP protection battle.
Web Sheriff, the company he appointed to monitor the use of his music and image on the Internet also seems to lump everything together in the same basket -- as you say, "video sharing and quoting and piracy" -- with demands that YouTube and similar spaces remove fans' photographs of Prince-inspired tattoos and vehicles displaying Prince-inspired license plates. The case of a mother from Pennsylvania who posted a clip of her baby dancing to his 1984 hit "Let's Go Crazy," barely audible in the background, and was told by Universal that it is "copyright infringement" is another perfect example of context-critical considerations that takedown notices and monitoring tools should take into account.

Then there are the seemingly inevitable "mistakes" that large-scale indiscriminate control can create, like the Prince fan-grandma who complained on a fan site that photos of her grandchildren in her Photobucket album had been swept away together with her Prince photos in an overzealous takedown notice by the artist's legal team. "I know they are cute, but aren't we going a little too far?" she asked.

Apparently Prince's team has forced Photobucket and other online media-sharing spaces to remove even items to which he does not own the copyright.
I am not a legal expert - although as a journalist I have reported extensively on IPRs in Russia -- but I find the current tensions between the mainstream and user-focused players in the digital media marketplace quite fascinating. I can't wait to see the solutions and new business models they will hopefully produce.

My general non-expert assessment of it all is that the Internet and especially the user-generated content and related online practices and spaces are still very poorly regulated, and the existing legislation is little nuanced.

Perhaps this is why Prince has taken it upon himself to regulate the use of his image and music. And amid the scarcity of nuanced legal standards, he is doing it his own way: yesterday he issued an official response to a statement by the three fan sites he is in dispute with, in the form of - what else - a new song, which seems to spell out his own, very personal solution to the entire copyright conflict:

"But I don't care what people may say
I ain't gon' let it ruin my day
The best remedy for a basket full of lies
Is funk
Ain't nothin' like funky music
Stay funky"
PFUnk, Prince
Nov. 8, 2007

I will certainly stay tuned for similarly creative but perhaps more practical solutions. And to answer your initial question: no, I don't think your concerns about the lack of context-sensitive monitoring tools are unfounded.

Florence Gallez
[Moscow-based journalist]

Reuters story:
Prince moves to sue fan Web sites
Wed Nov 7, 2007 1:50pm EST



Florence, these events are absolutely related to the issues I was discussing in my post regarding YouTube. As you point out, it seems to me that being more controlling than absolutely necessary opens up corporations to all sorts of problems. "Casting the net too wide" in the process means a lack of precision that will not allow them to identify and prosecute the worst offenders, those who really are blatantly undercutting the profit of artists like Prince and the companies who promote him and his music.

The issue with a lot of these copyright questions in relation to the Internet is that there doesn't seem to be any real expert on them, especially when it comes to a lot of fair use issues, of which there is not a definitive law written but rather a lot of questionable precedents and a "chilling factor" that leads many people not to challenge "cease and desists" in court because of a lack of funds and a lack of knowledge/confidence in their rights.

On November 12, 2007 at 9:17 PM, Florence Gallez said:


Yes, I can see now they are related. For the first split second I took "quoting" to mean from text only [remnants of old journalism mindset?:)..] but then realized it can of course be applied to all forms of media.

In reference to the "lack of precision that will not allow them to identify and prosecute the worst offenders, those who really are blatantly undercutting the profit of artists like Prince and the companies who promote him and his music." - interestingly Prince has just announced that he will be filing lawsuits within the next few days in three countries, incl. the US, against The Pirate Bay, one of the world's best-known BitTorrent indexing sites and a highly effective file-sharing tool which has defiantly linked to pirated copies of films, TV shows, music videos and other content.
So that's AFTER taking on the much more innocuous fan sites. Why he hasn't zeroed in on such offenders from the start is a mystery. But it's a clear sign that, just as you inferred, some have been throwing lawsuits around in a poorly researched manner.

" [...] when it comes to a lot of fair use issues, of which there is not a definitive law written but rather a lot of questionable precedents [...]"
I assume here you are referring to US legislation... As said, I'm not a legal expert but I understand that so far these copyright questions are being regulated at the national level. I'm not sure if I'm correct but there seems to be a lack of international legislative standards - perhaps in this lies some of the problems?..
But I agree with you about the need for a definitive law. I'm not sure what US regulators are up to regarding this issue but their British counterparts have just sat down to work on this: I'm including here below the links to two stories from the Guardian Media Law supplement of Sept. 17 which I picked up during my last trip to London - The supplement looks at the evolution of media law in recent years and current reforms. The first article covers specifically copyright laws and issues with some references to the situation in the US, while the second is not about copyright but offers some interesting comparisons between US and British/European regulation of online spaces.
Maybe you or your readers will find them of interest.

Florence Gallez
[Moscow-based journalist]

The wrongs of rights
File-sharing software and websites are running roughshod over traditional copyright law, leaving the entertainment industry struggling to catch up.
Daniel Lee
The Guardian Monday September 17 2007

The battleground in the blogosphere
Tens of millions of blogs exist but regulating them is a difficult and unwanted task. As a result, internet service providers are finding they are picking up the legal slack.
Andy Cox
The Guardian Monday September 17 2007


I'm interested in both of these issues, so thanks for sharing the links! I actually wrote a series a while back on U.S. legislation and how there seems to be contradictory themes of access and censorship in the government, pitting public right to certain information and platforms, on the one hand, against questions of safety and security on the other.

I was thinking of U.S. law in particular but international law as well; as you point out, the standards are not clearly defined in most places on a national level, much less an international one.

Very interesting story about Prince targeting the bigger offenders now, after first attacking fan sites. That sort of undifferentiated blanket response just seems to further demonstrate the disconnect some folks seem to have about what viewers are doing and the motivations behind those moves.

I think that public relations and legal would be at each other's throats a lot less in major companies if they came up with a more precise definition of what is fair use and what types of behaviors they are really trying to stop with their protection of IP...