Saturday, November 22, 2008

Fair issue was clarified and the situation resolved with YouTube

I am happy to say that months ago the fair issue was clarified and the situation resolved after I sent the following e-mail to YouTube (I figured I would share with others the e-mail I sent in order to explain the issue of fair use) also see: Fair Use and YouTube:

Dear YouTube Team:

Thank you for contacting me concerning the videos I submitted for monetization and giving me the opportunity to clarify the fair use of them. From what you wrote in your e-mail I understand that you are asking me if I still maintain that the use of the clips in my videos is still fair use even if I make commercial use of my videos.

The answer is yes and I would like to state my case by first referring to the website you sent me a link to in your e-mail. The info at that link makes it clear that I am abiding by fair use principles, both according to the explanation and the examples provided at the website you referred me to. I will go into detail below but I would like to point out that I have the same fair use rights as Viacom and Viacom regularly makes commercial use of the content it uses according to fair use doctrine.

The specific videos you ask me about in your e-mail, I list here as 1, 2, 3 and 4:

Concerning videos numbered 1, 2 and 3, the many clips I use I have a right to use because it is government-produced video of the legislative proceedings of the U.S. House of Representatives and it is in the public domain so I can use it without restrictions. As C-SPAN explains, "Although C-SPAN is the only news media organization that regularly televises the legislative proceedings of the U.S. House and U.S. Senate, it does not hold a copyright in that video coverage. That government-produced video is in the public domain which means that it belongs to the American people and may be used without restrictions of any kind." ( )

Concerning video number 4, my use of a 28 second clip from the 60 Minutes Pelly-Ahmadinejad interview and a 6 second clip from the 60 Minutes Pelly-Bush interview was for the purpose of political commentary and criticism and conforms with fair use doctrine. Section 107 of the copyright law lists four factors to be considered in determining fair use. My use is fair use according to all four factors. The first factor is the one that considers "the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes." This does not say that use of a commercial nature violates fair use doctrine, it simply says it is part of the consideration in determining whether or not a particular use is fair. Commercial use in and of itself is "not at all determinative" of whether a particular use is considered fair but rather "that preference will be granted to works that were created for non-profit educational purposes." I am quoting from one of the "Fair Use Links on the Web" which YouTube provides on its Copyright Tips page. ( )

That commercial use of material can be considered fair use is well established in case law. Even at the site you highlighted, there is an example of a company making commercial use of content under the fair use doctrine. It was legally determined to be fair use for the Washington Post to use three brief quotations from Church of Scientology texts and post them on the Internet. That site says the "issue is whether the material has been used to help create something new, or merely copied verbatim into another work." ( )

The fair use network points out, "commerciality is not the most important aspect in the first fair use factor. More important than commerciality is whether a use is "transformative" or merely substitutes for the original work." ( )

Viacom regularly makes commercial use of video clips it does not own the rights to and it relies on fair use doctrine to do so. "We are very familiar with the doctrines of parody, political commentary and criticism and the way they relate to the use of copyrighted material. In fact, Viacom relies upon the law in these areas regularly. Watch nearly any episode of South Park, The Daily Show with Jon Stewart or the Colbert Report and you will see how our artists draw from copyrighted works in legitimate ways for legitimate purposes." - Michael D. Fricklas, Executive Vice President General Counsel and Secretary for VIACOM, 2/6/07 ( )

Commercial use is permitted under fair use doctrine. Viacom accepts this by their own words and actions. In addition to the examples cited above from Comedy Central, VH1's commercial entertainment show "Web Junk 2.0" features clips it uses under the fair use doctrine. The show is a commercial show, commercials are sold around the show and advertisements are sold around the content on the website, and the clips they use are not used with permission, instead Viacom uses them under the fair use doctrine.

I think you will agree that I should have the same fair use rights as Viacom and other Youtube Partners for that matter. I see YouTube allows other Youtube Partners to make commercial use of content they do not own, relying on fair use doctrine to do so, in their monetized videos. My use falls well within fair use doctrine, in fact, I think it is a textbook example of legitimate fair use.

Tom Murphy

Also see this blog post: Fair Use and YouTube

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