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YouTube just announced that it has opened up its coffers and will foot the legal bill for DMCA takedowns of a small number of videos, which the company believes are clearly "fair use."
This is welcome news to YouTube users who have been hassled by DMCA piracy complaints for reasons that have little to do with copyright protection.
Free speech protection applies against the government; fair use applies to private parties. And fair use has been the the quiet and un-celebrated ally of American citizens who have been odiously crediting "free speech" whenever they feature copyrighted content in any critique, parody, or educational usage. Free speech has been getting the credit without doing a thing!
But people can generally understand that legal issues get implicated when someone plays a copyrighted movie and charges a fee to see the film. That's because someone who slaps a DVD into a player or simply tunes into Netflix has not added enough creative work to make the work "transformative." So, no fair use. And for a while, people didn't seem to make much fuss about fair use.
That was before the Digital Millennium Copyright Act of 1996 and the world of YouTube. Content providers generally defer to copyright owners' requests to tear down videos that feature content that is even remotely a violation. Safe harbor rules mandate the services like YouTube take down a video and leave the busywork of filing a counter-claim against an owner to the person who posted the video. And such lawsuits can get ugly and drag on for years...
YouTube is taking a bold step for Vox Populi when it says that it will take four examples of clear "fair use" and defend it with its war coffers. It's especially nice because forced takedowns over cases involving a negative review is something that would make most copyright holders think twice now that YouTube is on the other side.
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