Interestinthings Law, Startups, Music; maybe in that order

YouTube’s “fair use button” as compulsory license

YouTube posted on their blog recently highlighting the not-actually-new "fair use button" in their Content ID system. The relevant description seems pretty straightforward:

• When you receive a notice in your account via Content ID, we tell you who claimed the content, and direct you to a form that lets you dispute the claim if you so choose.
• If you believe your video is fair use, check the box that reads "This video uses copyrighted material in a manner that does not require approval of the copyright holder." If you're not sure if your video qualifies, you can learn more about fair use here.
• Once you've filed your dispute, your video immediately goes back up on YouTube.
• From this point, the claimant then makes a decision about whether to file a formal DMCA notification, and remove the content from the site according to the process set forth in the DMCA.

They're casting Content ID here as a sort of pre-DMCA process, but it's more than that. Notably, it can involve revenue shares for the content owner from the ads shown against the content. This led me to the question of whether or not such rev shares continue along if the user claims fair use, and more abstractly, if they should. I guessed they would, since fair use is only a defense to infringement, which just means that the copyright owner can't stop the use; it says nothing about the copyright owner not making money off of the use. (I've since learned from a knowledgeable person at this month's CopyNight that currently, the whole Content ID claim gets disputed, i.e. all the content owner's options are suspended. Maybe this is a technical choice, maybe it's a policy choice, but I'd be really curious to hear why either way.)

Traditionally fair use and non-payment have gone hand in hand, because those not interested in getting the owner's permission weren't generally interested in giving them any money either, and fair use nullified the owner's leverage, i.e. the power to stop the use. The relationship imposed by YouTube's system here seems more like a compulsory license, where the owner can't stop the use, but they are still entitled to a fee for it. While compulsory licenses are also access-enhancing, they're not the same thing as fair use; interestingly, in some cases they seem more fair. There is usually some acknowledged value from the original copyright owner's contribution to the use, and our societal interest in seeing the use brought forth isn't directly tied to appropriating that value for the fair user, so a process for giving some share of the revenue back to the original owner has some simple justice to it.

In this case, it's YouTube as an intermediary distributor who is in good position to monetize the use, so they're the ones who can enforce such a distribution, i.e. make it a compulsory part of their service. Now, it's important to worry about those fair uses that aim at criticism where the prospect of generating revenues for the original copyright owner might decrease the incentives to make the fair use available, but I would guess those are the minority of the videos we're concerned with here, so I think the revenue share could still be an appropriate default, with an opt-out for those uses where it subverts the point of the use.

What's really interesting about this possible approach is the middle ground it carves out between a full fair use claim, which keeps the original copyright owner out of the equation completely, and a takedown notice, where the copyright owner just stops the use. Right now industry executives and lawyers talk about a space of "tolerated" uses, where they likely could get the use stopped but they decide on balance, at least for now, it's better if the use continues. I think there's potential to grow that space and give it more predictability by enabling some rights for the original copyright owners in potential fair use situations. It's really a very similar idea to Creative Commons, in that it's also talking about a "some rights reserved" position on the spectrum of rights. The difference is that here we're talking about YouTube making choices to structure its own ecosystem, rather than simply offering a licensing option for copyright owners to choose themselves. I think there's serious potential to increase the amount of new uses that can be allowed on sites like YouTube with semi-automated, regularized processes like Content ID if a claim of fair use stalls the owner's blocking power separately from other effects like attribution and revenue shares. It would certainly change the frame of the debate around remixed works "stealing" from the original works they use.