Where's the Fair Use?
February 16, 2016
(The shortened opening)
NC: Hello, I'm the Nostalgia Critic. I remember it so you don't have to. Online videos have come a long way, haven't they? We've gone from the novelty of just...
NC (vo): ...filming our cats to budgeted studios that turn out professional work every year...as well as the novelty of just filming our cats.
NC: But, there's a group of entertainers that despite growing more and more popular and having done this for years, still meet with a lot of hostility from Hollywood, and those are the entertainers who incorporate fair use.
(Shows a short clip of them filming the NC review for Demolition Man. "Calm" by Silent Partner plays in the background throughout)
NC (vo): This is what we do, and for those who don't know, (shows an image of the "Fair use" law) fair use is the doctrine that states "excerpts of copyrighted material may, under certain circumstances, be quoted verbatim for purposes such as criticism, news reporting, teaching, and research, (shows scenes from the Mad Max: Fury Road review) without the need for permission from or payment to the copyright holder."
NC: So, that means if you use copyrighted material for, say, a review or a satire or education, it's completely legal. Too bad Hollywood doesn't see the law that way.
NC (vo): As for years, video producers have been battling off attack after attack, resulting in multiple deleted videos, sometimes even deleted channels, affecting the income of people who now do this for a living.
NC: In hindsight, this is no real big shock as Hollywood over the years has repeated this pattern over and over, they just never realized they're actually repeating it.
NC (vo): (shows the "Hollywood" sign) Since the early days, there's always been something that was going to destroy the innocent artists, who just want to do nothing but give you movies. First it was TV, VHS recording, then it was DVR, DVD rippers, and now, right on cue: it's the Internet.
NC: (sarcastically) Ohhhh, poor Hollywood. Look at all the box office records you're breaking in the last ten years, look at all the new filmmakers that would exist without online media, look at all the digital commercial tie-ins and trailers that you're exploiting the hell out of. You're killing them, Internet! You're strangling them like a newborn unicorn who just wants to give you rainbows!
NC (vo): So, obviously, like in the days of TV and so forth, the Internet did not kill or weaken the Hollywood system. But that didn't stop them from trying to take control anyway, as we saw with acts like SOPA, giving complete control to US law enforcement to combat online copyright infringement with no due process.
NC: Yeah, that was a scary time for the Internet. Google even shut...
NC (vo): ...down their site in protest, and this isn't even that long ago. (October 26, 2011)
NC: Now, thankfully, that act never passed, but that doesn't mean their practices aren't still being put into effect.
(The I Hate Everything avatar is shown)
Alex (vo): Hi, I'm Alex from I Hate Everything. Three days after I released my review of Cool Cat Saves The Kids, a terrible, infamously bad movie, I received a suspicious copyright from the director of the movie himself: Derek Savage, who over the course of about a month, used this unfair strike to censor and restrict my channel, and even tried to bully an apology out of me in private E-mails I have since made public. This clueless man, who has shown multiple times that he has about as little understanding of how the Fair Use law works as he is knowledgeable about competent filmmaking, was given the tools to waste my time and threaten my livelihood, purely because he didn't like my negative review of his God awful movie, which, by the way, I did actually recommend at the end of the video, in a "so bad that it's good" way, and I wasn't alone either. It turns out that Mr. Savage had been on a copyright rampage, silencing at least two other creators (Bobsheaux and Josiah Clark) who had a negatively slanted review of his movie. Savage's childish behavior aside, this highlights how hilariously slanted, and weighted, against the creator, the YouTube copyright strike system is. He didn't have to show any evidence, he didn't have to prove his case, or worry about any possible repercussions. He definitely would have lost in court if it had gone there, so once he failed to refute my appeal, the strike's time limit ran out, and my channel was eventually restored to normal. It was a colossal waste of time and energy for everyone involved.
(The YourMovieSucks.org avatar is shown)
Adam (vo): Hey, guys, it's YMS here to explain a few things about YouTube's copyright system. It wasn't too long ago when one of my videos was unjustly blocked worldwide, and I was unable to appeal it because I had other appeals that had yet to be resolved. Now unfortunately, YouTube only allows you to file three appeals at one time. What is the reasoning for this? Well, I'm really not sure, but all it seems to do is provide more leverage for the claimant and less leverage for the defendant.
NC: There are tons of videos that are taken down unfairly on YouTube.
NC (vo; as it shows three NC reviews that were removed. Those are: Eight Crazy Nights, The Purge, and Son of the Mask): Trying to put those, who use fair use, into the same category of those who steal or upload entire content for profit.
NC: But how can this be? Isn't there a system in place? (beat) In theory.
NC (vo): After Google bought YouTube, Viacom immediately went to court against them for all the content being played without their permission. Funny, seeing how Viacom actually uploaded about a hundred of the videos they tried to sue YouTube over. YouTube was able to defend itself with the DMCA (Digital Millennium Copyright Act), and safe harbor provisions. They created a system that would shed any responsibility for any videos uploaded on YouTube, and again in theory, help protect its creators. This system was, is, and will continue to be abused, and for some reason, at a much more rapid pace this year.
NC: The system is there's two penalties for copyright infringement: a claim or a strike.
NC (vo): A strike is the most severe. Your video gets taken down from YouTube because a copyright owner sent a complete legal request asking YouTube to do so. Just one strike limits your channel, including only airing fifteen minute videos, and an inability to dispute copyright claims for six months. You get three of these, and your channel is gone.
NC: And then there's the more popular, yet "less severe", penalty, claims.
Adam (vo): If content ID detects copyrighted material within your video, then an automatic action will take place. This action is entirely dependent on what the copyright holder previously set it to do. For example, if I owned a movie, and I wanted to add it to YouTube's content ID system, I would get to decide how much footage from my film would need to appear in someone else's video, before it automatically claims it. You can also receive claims that were filed manually. A manual claim implies someone actually watched the video, and determined it was infringing, before actually filing the initial claim.
NC: So, how can that be possibly be unfair?
Adam (vo): YouTube's system is set up in such a way that it incentivizes claimants to abuse it, and that is precisely why their system is so rampant with abuse. You can file a dispute, and then it is up to the claimant to respond to your dispute within thirty days. If they don't respond in thirty days, then their claim will be removed, and your video will be back to normal. If they do respond, they can either remove the claim or reinstate the claim. If they reinstate the claim, then you have to file an appeal, and they have yet another thirty days to respond to that.
Alex (vo): The most excruciating part was the lack of human interaction from anyone at YouTube. The automated e-mails and forums seemed designed in such a way that no human working at YouTube will ever actually ever see it, so it makes you feel pretty helpless and pretty worthless. There was no one I could contact to fix a very, VERY simple problem. So, the entire situation was elongated and needlessly blown comically out of proportion.
Adam (vo): I see no reason why there should be a limit on the amount of appeals I can send when there is no limit on the amount of claims I can receive. And what's worse is that, even if the amount of appeals was increased, I would still only be able to really use two at a time. Reason being is that during the appeals process, the claimant has the option to remove your video and issue a strike on your account. You can fight to get the video back up, and the strike removed from your channel by filing a counter notification, but those can take up to a month to complete as well. And as soon as you have three strikes on your channel at any one time, your channel is automatically removed. So, even though I am technically allowed three appeals at once, I make sure to limit myself to two, in case all of them come back with take-down notices.
NC: But okay, so some companies are gonna be unfair, and some even make mistakes. At least they're not going to try and do it again, right? (beat) Why?
NC (vo): There are no penalties for companies creating false claims or strikes. In fact, there's a claim where you can take someone's monetization on a video, even if the claim turns out to be false.
NC (vo): So if a studio says "Hey, your Event Horizon review, that's our review 100%", they can take the money you're supposed to be making on it until you file a counter claim. And if they never fight it or are proven to be wrong, they still get to keep to all the money that they made on you, no questions asked.
NC: But there's even more they can do than that.
Adam (vo): You would think that studios wouldn't be able to go around filing fraudulent claims against people's videos, but not only do they do that, but they often outsource other companies to do it for them. I've received countless claims from a rights management company, known as "egeda", and this claimant in particular is one of the worst to deal with. You can dispute your claim, and provide factual evidence as to why your video falls under fair use, and they just reinstate the claim anyway and often issue a take-down notice on your video.
NC: So you might be thinking, "Well, big deal, so you have to fight off a claim every once in a while. How often could they possibly happen? A few times a year, maybe once or twice a month?" (beat) Every other day, we have to fight off a new claim.
Adam (vo): I've fought and won every single illegitimate claim thrown my way, but as the number of videos on my channel increases, so does the likelihood that I'll be stuck with too many claims to deal with at once. There's countless videos on my channel that I was unable to monetize for several months just because of how long the claims process takes
NC (vo): It's gotten to a point where we've had to change our content dramatically. (Shows scenes front the Mad Max Fury Road review) Clips of films have been intensely reduced down, and (shows scenes from the Jurassic World review) some reviews don't even use clips, they use reenactments.
NC: However, as others' cases prove, even not using footage isn't enough.
(Shows scenes from Brad Jones's Midnight Screenings)
Brad (vo): I received a strike on my account, on one of the Midnight Screenings reviews, which is a series I do in which me and another person sit in a car in a parking lot after going to see a movie in the theater, and we just talk about the movie. There's no clips, no footage, it is just us sitting in a car... talking about a movie. And if you didn't know that, you could know that by just simply watching the video.
NC: So, what started out as a means to protect studios and content creators is now being used as a means to silence and steal. We're at a point now where, not only is this becoming more and more wrong, it's becoming illegal.
NC (vo): In the case of "Lenz vs Universal", Universal claimed a twenty-nine second video of a baby dancing to a Prince song; infringed copyright. Yeah, that's how desperate it's getting. Luckily, EFF sued Universal on Lenz's behalf, arguing that Universal abused the DMCA by improperly targeting a lawful fair use. A federal appeals court affirmed that copyright holders must consider whether a use of material is fair use, before sending a take-down notice. But don't worry, that still didn't stop the studios from wrongful DMCA take-downs. Tons of them still going on today. Studio Ghibli gave us a strike for telling people to go see My Neighbor Totoro. Ironic as the studio that created the No-Face, a creature who just wants to spread joy but gets consumed by greed gobbling up anything that comes in his way, is now sadly the perfect mascot for this situation. When we uploaded an extended version of our commercial reviews, the Apple commercial about the 1984 future got claimed. The comedy writes itself. A company warning us about an Orwellian future, saying they'll lead us away from a world that controls and censors us is controlling and censoring us. (sarcastically) Wow, you really stopped that future from happening. (image of NC giving a Kubrick smile right next to an evil Apple logo is shown)
NC: The studios have made it clear they are not going to play fair, and they will step over anybody's rights that they need to to get exactly what they want. So what needs to change?
NC (vo): Well, first make it so that studios can't steal money that's rightfully yours. If there's a monetization claim, why not put that money made for the video, in a side account, that way if the claimant releases their claim, the money should go to the creator?
NC: Second, the three strike rule. How come one strike disables you from disputing any other copyright claim? If we were going by baseball rules, does one strike limit the batter's ability in any way?
NC (vo): (sarcastically) Oh, one strike! That means you can only swing halfway. Oh, two strikes! That means you can only swing at balls on certain sides of the plate. (normal) Fighting claims is something that every channel will have to go through at some point. Hell, with these examples, it's inevitable, as some of us go through it more often than others. So, why take away your right to fight that, especially if it turns out that the party accusing you is wrong?
NC: In fact, since a court ruled that fair use had to be taken into consideration, why not a grace period before any action is taken?
NC (vo): A strike should not automatically and immediately be placed on your account. There should be time to notify YouTube that you are fighting the DMCA take-down, and until that's resolved, and seeing who's right/wrong; an account shouldn't be penalized.
NC: Which leads to the most important part: claimants need repercussions for false claims.
NC (vo): You can lose money or your channel due to claims or take-downs. Those are the penalties you have to suffer. So, why isn't there any for ones who are retracted or false? It just allows one side to have all the power. There's a great irony that the creation of Hollywood and the studios came from something similar to what we're going through right now. Thomas Edison held most of the patents over the technology needed to create movies, and he was overly tough on upholding them; exhibiting a near-monopoly. So, creators fled to California and created Hollywood because they thought the limitations and abusive control was getting out of hand. Yeah, sound familiar? Years later, the studios now are the ones who are trying to limit and control, while the creators are trying to create. It's clear that this current system is made to be abused, and will continue to be abused until A: it's fixed, or B: the affected channel gets big enough to give the claimants enough bad press to scare them into not filing the claim, and that shouldn't be how things are done.
NC: I've been doing this professionally for over eight years, and I have never had a day where I felt safe posting one of my videos, even though the law states I should be safe posting one of my videos.
NC (vo): For years, Hollywood had been wrong about what would destroy them, and every time a supposed threat came about; when trying to take them down didn't work, they inevitably turned to the most obvious and most logical solution: join forces. Hollywood works with TV, and Hollywood should work with the Internet.
NC: This is proof that the only thing that can destroy Hollywood is Hollywood.
NC (vo): The system that is in place is being used by studios and now even other content creators as a scare tactic to silence criticism and stun channels that could grow into popular media outlets, but aren't because they could say something somebody doesn't like.
NC: Some business have picked up on how to utilize this. In fact, online creators have given attention to (Shows JonTron) movies, (Shows The Nerd (AVGN)) shows, and games that probably would have disappeared unless the Internet brought focus to it. It doesn't even matter if it's good or bad. (The Room) In fact, it's usually looked at more if it's glorified for being bad. This is the kind of goldmine so much media is missing out on.
NC: Some studios recognize the power of the Internet and go in the direction they know media is going.
NC (vo): But others still see the change as too hard or too much work; not willing to put in the effort do what they know is right.
Adam (vo): When you receive a claim, it hasn't even gone through a human being yet. YouTube gives claimants the power to make money off your video, before its even been determined that your video is actually infringing upon their copyright.
Alex (vo): Why should content creators be responsible for having to deal with angry people, who take reviews personally and use that anger to maliciously target and silence voices with a system that allows them to do so?
Adam (vo): It's no wonder studios don't think twice before issuing illegitimate claims because chances are either you won't fight back, or you won't be able to fight back.
Alex (vo): And only months after this incident, my entire channel was taken down for about seventeen hours because of false spam flaggings. It took multiple weeks to even receive any kind of explanation or apology from YouTube directly, and if I never made such a loud noise about it, my channel would have remained taken down for no reason.
(The camera starts zooming in slowly)
NC: Look....piracy is a problem. And, if someone is pirating your work or, even worse, making a profit off of it, you have a right to stop it. But not at the cost of freedom of speech, and fair use is freedom of speech.
NC (vo): The funny thing is it doesn't even take much to spot fair use. If a video is running your product with few to no comments or changes, or if the changes are just alterations so they don't get caught, it's probably piracy. But, if the video isn't even half the length of your work, and someone constantly comes on to talk about it, or it's edited to make a point, or use satire; then it's probably fair use.
NC: And sure, some mistakes can come from this, too. It's expected; but not nearly as many as the system that is in place now. Not at the cost of common sense. Because here's the the thing: we're not going away.
NC (vo): Content creators like us have only gotten bigger, and all your attempts to keep us down have only made us stronger. No matter what you do, we will always find a way to comment, to praise, to criticize, to satirize, and to educate.
NC: And to all the YouTubers out there, whether you make a living at this or you just watch for entertainment, this is something we all need to stick together on, because change is already happening.
NC (vo): Many studios, whether gladly or begrudgingly, are being forced to work with the Internet. But there are still some who want to stay away and will do anything in their power to stop online entertainment from evolving, including infringing your rights.
NC: We need to show this isn't okay, and it never will be okay.
NC (vo): If we can make it clear now that fair use is real, it's being abused, and it's hurting the growth of an industry you love to watch or produce, we can create a more stable environment for new creators to produce great work.
NC: The Internet is a place where anyone can become famous. Let's try to keep it that way.
Alex (vo): I'm Alex from I Hate Everything, and "Where's the fair use?"
Adam (vo): I'm Adam from YMS or Your Movie Sucks, and I've been asking, "Where's the fair use?"
NC: I'm the Nostalgia Critic... "Where's the fair use?"
(A hashtag #WTFU appears, and the screen fades to black. A caption is shown)
There are just a FEW of many stories. Help raise awareness and ask Where's the Fair Use?
(The credits roll)