Where’s the Fair Use? We still have to fight for it.

If you use YouTube a lot, you’ve likely come across a number of videos that exclaim “WTFU”, or “Where’s the Fair Use?”. This is because on social media, there are many wrongful copyright claims that have the effect of stifling the expression of opinions.

A fresh example of this is the recent removal of a video by Steven Crowder, in which he explained why Democratic Socialism doesn’t work. The video was removed from YouTube at the request of Mashable, with the claim that Crowder’s use of portions of their video was a violation of their intellectual property rights.

Here is a video of Crowder’s opinion on the matter (Trigger Warning: Steven Crowder is a Conservative comedian. If you’re an SJW or similarly weak-bladdered, you might be exposed to an opinion that is not your own):

In American law, there is a legal protection called “Fair Use”. Fair Use allows for the limited use of copyrighted materials for educational, review, or satirical purposes without being considered to have broken copyright law. Crowder’s video, like those of many other YouTube personalities, falls nicely under Fair Use.

So, what’s the problem? The doctrine of Fair Use is being ignored, that’s what.

It gets worse when you consider that YouTube’s policy on copyright claims is horribly flawed. When a copyright claim is made on a video, the channel that uploaded it gets a strike on its account. Strikes can be contested, but the uploader is faced with the burden of proving that they didn’t violate copyright law, instead of placing the burden of proving that a violation of copyright law occurred on the one filing a complaint, which is right where it belongs.

It gets worse. When a copyright claim is made against a channel, any money that the video would have made the uploader goes to the person making the claim until the claim is resolved. Even once it’s resolved, the person making the complaint doesn’t have to pay it back. Because of this, there are people who abuse the system by making false complaints to make some money for themselves. As of this writing, they actually get away with it.

And it gets worse, still. Once a channel has three strikes, it’s deleted. The whole channel.

That’s a catastrophic blow for a channel that has gone big. Channels that have over 100,000 subscribers can easily make the account owner as much money as a minimum wage job. For some people, their YouTube channel is their livelihood.

As you’ve likely already gathered, a person doesn’t need to be the copyright holder to file a copyright complaint. On YouTube, false copyright complaints are rampant. In many cases, as is the case with Steven Crowder’s video, a false allegation of copyright infringement can be filed in an attempt to silence an opinion that they don’t like. Sometimes, a company will file a copyright complaint in order to remove a review that might hurt the sales of their product, even if it’s obvious that the copyrighted material has been used in a manner consistent with the allowances afforded by Fair Use.

So, what can we do about it? On the one hand, you could do as Doug Walker did and make a video pleading for the administration of good, decent sense:

Look at those puppy eyes! Don’t you see that all this copyright abuse is making him sad?

Yes, you can be another messenger in a world full of messengers that are easy to ignore because most of them won’t actually do anything proactive about their problems.

On the other hand, you can do something about it. Because when it comes down to it, most problems don’t go away by themselves, even if almost everyone is aware of them. Sympathy posts to attempt to bring attention to a matter are usually pleas to have someone else do the work.

So, what can we do about it?

Phoenix Wright lawyer up

That’s right, lawyer up. If someone makes a false copyright allegation against one of your YouTube videos, take them to court, win, and in so doing, establish a legal precedent that would serve as a deterrent against anyone who would attempt the same thing.

You would have the law on your side. According to the Digital Millennium Copyright Act (DMCA), filing a false DMCA claim is punishable by up to five years in prison. Of the Federal variety.

I’ve seen videos begin or end with splash images claiming that the limited use of copyrighted materials in the video falls under fair use. If you really want to deter false flaggers, here’s the kind of thing you should use:

YouTube warning

Make it clear that you’re serious.

If you’re wondering where the Fair Use is, it’s because we’re not done fighting for it yet. Until a YouTuber that’s brave enough steps forward to defend their freedom, we’re likely to keep hearing about things like #WTFU for quite some time. Not that that means that anyone’s doing anything about it.

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