EFF's von Lohmann: YouTube worse than DMCA for fair use

I passed Jason's post about getting DMCA'd by Warner Music onto Fred von Lohmann at the Electronic Frontier Foundation. You'll recall that Jason and his wife put up on Vimeo a reunion slideshow with several tracks of music and that Warner Music Group promptly filed a DMCA take-down notice. Fred's initial reaction:

Wow. Warner Music really doesn't know when to quit.

The really sad thing, Fred told me in a telephone interview, is that Warner probably doesn't even object to this use of its content. "Over the past several years we’ve seen fair use become collateral damage in the war against what the studios call piracy," Fred said. "A couple of years ago we objected when Viacom ordered a take-down of a parody of The Colbert Report," he said. Viacom agreed it was fair use and their response was, "When you're fishing, a couple of dolphins sometimes get caught in the net."

Because the DMCA regime is so biased against fair uses, few people would choose to alert the studios as to their existence by filing an opposition to a DMCA take-down notice. Still, DMCA does provide for users to mount lawsuits against copyright holders who wrongly assert infringement. You pretty much need a public lawfirm like EFF to make that happen, though. For instance, EFF is suing Universal over the infamous baby-dancing-to-Prince video. (Unlike most copyright holders, who wind up settling, Universal is taking this case to the mat. And EFF is trying to understand their position. "If they're saying they have a zero-tolerance policy, I think they've broken the law.")

Von Lohmann said he's not aware of a single infringement suit against one of these remix users, but who's to say you won't be the first? In fact, the RIAA litigation against filesharers seems to have a desired impact in that it's made fair-users reluctant to assert their rights against these takedown notices.

But as bad as the DMCA is from a fair-use perspective, the far scarier thing is that the take-down regime is rapidly becoming extra-legal. Exhibit No. 1: YouTube's ContentID system, an almost entirely automated scheme by which apparently infringing content is flagged to copyright owners. While Google promotes the notion that owners are choosing to monetize rather than block user-uploaded content, when it comes to Warner, it seems that the choice is block, block, block.

"Under the current process, we make YouTube aware of WMG content. Their content ID tool then takes down all unlicensed tracks, regardless of how they are used,” said Will Tanous, a spokesman for Warner Music.

On YouTube, you don't even have the weak protections of DMCA; you get exactly what YouTube's terms of service let you have. And the chilling effect remains. If you're afraid of being sued, you're not going to make a stink over something that was "just for fun."

So, we're in a pretty stuck place. Is there any way out? Fred says EFF is pushing for relief on several paths:

• We’re pressing YouTube to be more protective of fair use. They have quite a bit of leeway to protect user interest. We’re urging them to match both the soundtrack and the videotrack before flagging something as infringing. If they had to match both, Jason’s wife’s video wouldn’t have been removed.
• We're asking them to take steps to ensure that remixes are protected. If ContentID identifies content from provider X and also from provider B, then that's a tipoff that somebody is remixing content in a way that is probably fair use.
• We’ve approached some of the studios to open dialog to try to get them to adopt some of these approaches. One major studio has set their ContentID settings so that it won't automatically block anythng unless there's five minutes of contiguous content and both the audio and video tracks are identical.
• The user community also needs to make itself heard. A way for people to get this taken seriously is to boycott YouTube in favor of another site with better terms. If users would vote with their feet, I think YouTube would change their terms.