Your Fair Use is My Piracy
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The internet has changed, and it has changed everything with it. In "Digital Fair: Prosumption and the Fair Use Defence", Collins writes that “Combined with the ‘rip, mix and burn’ nature of digital technologies, the web has rapidly become a locus for user-created content, much of which copies, appropriates and mashes up copyrighted materials. The invitation to engage with the media-saturated environment has led to a proliferation of prosumerism through which many consumers have become producers of content.” (38)
YouTube for example is one such platform that actively blurs the boundaries of consumer and producer by enabling user generated content and with it invites a flurry of copyright infringement cases countered with fair use defences.
But how do we determine fair use in this digital world?
Collins argues that “One person’s fair use can easily be another’s piracy” (“Digital Fair: Prosumption and the Fair Use Defence” 43) and this argument is highly applicable to YouTubers who teach or deconstruct music in their videos for educational purposes, which is what happened in the case of Warner Music Group v. Glen Fricker.
Warner Music Group v. Glen Fricker
Plaintiff – Warner Music Group
Defendant – Glen Fricker
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​Glen Fricker is a highly experienced sound engineer who teaches what he has learned over the years to other engineers and musicians on YouTube, “occasionally deconstructing tracks to show where a recording went wrong” according to The Verge’s article “Youtubers And Record Labels Are Fighting, And Record Labels Keep Winning”.
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​In the article, Alexander writes, “Glenn Fricker didn’t run into any issues when he uploaded a video about digital music editing to YouTube in 2014. But nearly five years and 600,000 views later, he received an email from YouTube notifying him that Warner Music Group had claimed copyright over a 15-second video clip he included of Iron Maiden. As a result, the entire video would now be blocked.”
Glen Fricker talks about being censored by Warner Music Group
There has been a considerable increase in record labels slamming YouTubers with copyright infringement for remixing or using their work.
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“It’s a real problem for creators who want to remix or create educational content about popular music, and the law isn’t [sic] necessarily on their side: fair use law is limited in scope, and even musical covers and a cappella performances are still protected by various forms of copyright. It all leads to a tense balance between the interests of video creators and musicians, with YouTube caught in the middle,” says Alexander.
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​According to YouTube’s copyright regulations, copyright owners can choose different actions to take on material that matches theirs:
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Block a whole video from being viewed.
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Monetize the video by running ads against it; sometimes sharing revenue with the uploader.
Under the Digital Millennium Copyright Act, YouTube is obligated to take down copyrighted content that has been uploaded by users.
YouTube makes this possible for copyright owners through its tool called Content ID. According to Collins, “Content ID compares uploaded content against a data pool of material submitted by content owners. The system is sensitive enough to match low-quality and transcoded material and even that which has been filmed from a television screen on a telephone camera” (“YouTube and Limitations of Fair Use in Remix Videos” 98)
Fricker told Alexander that, “his videos should be “in the clear” because he’s creating commentary and educational content.” However, being an archaic law, fair use is complicated and unclear when it comes to YouTube. But here is where it gets interesting and problematic: since infringing content is flagged by software, Content ID cannot distinguish between infringing use and fair use. This means that the software will flag every use as copyright infringement.
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​This shortcoming is apparently mitigated by the manual processes that are used to determine fair use. However, objectivity in determining fair use is lost because according to Collins, “assertions of fair use are delivered to the content owner who, conflictingly, sits as the arbiter of what amounts to a fair use – something with which even the judiciary struggles.” (“YouTube and Limitations of Fair Use in Remix Videos” 98)
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What this means is that in Fricker’s case, Warner Music Group would decide whether fair use protected Fricker’s sampling. Obviously, Warner would argue against it.
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​Alexander reports that “Fricker did manage to get his video unblocked. But doing so didn’t involve going through YouTube’s formal channels: it involved publishing a YouTube video about the problem and being lucky enough for that video to gain attention on Reddit.” (“Youtubers And Record Labels Are Fighting, And Record Labels Keep Winning”)
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​With 500 videos per hour uploaded on YouTube in 2019, “It is difficult to determine exactly how much copyrighted material is hosted on YouTube, let alone how much of it might be protected as fair use” says Collins (“YouTube and Limitations of Fair Use in Remix Videos” 102).
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But what does that mean for artists (like Fricker) who get caught in copyright litigations?
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A fair use defense is a dicey situation for the sampler and is costly. Small time YouTubers simply do not have the financial prowess required to take on record giants.
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Collins adds that “without a vibrant culture of production and consumption respectful of fair use (both its freedoms and limits), copyright fosters a permission culture that is censorial, monopolistic and detrimental to free creative expression.” (“YouTube and Limitations of Fair Use in Remix Videos” 101)
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​Also, the growing culture of remix, mash-up, and the revised understanding of what is fair use especially among teenagers today, shows that the fair use doctrine needs to be updated for the digital age.
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All of this information is great, but what should you learn from it? Think before you use it!
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