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 along way haven't they? We've gone from the novelty of just (vo) filming our cats to budgeted studios that turn out professional work every well as the novelty of just filming our cats.

NC: But, there's a group of entertainers that, despite growing 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)

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 or payment from the copyright holder".

NC: So, that means if you use copyrighted material for satire or education, it's completely legal. Too bad, Hollywood doesn't see the law that way. (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 hindisght, this is no big shock as Hollywood, over the years, has repeated this pattern over and over. They just never realized it. (vo) (shows the "Hollywood" sign) Since the early days, there's always been something that is going to destroy the innocent artists, who just want to 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 commercials and tie ins you're exploiting the hell out of.

NC: (still being sarcastic) You're killing them Internet! You're strangling them like a newborn unicorn, who just wants to give you rainbows! (normal vo) So, obviously like in the days of TV and so forth, the Internet did not kill 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 (vo) down there 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.

(Shows the I Hate Everything Avatar)

NC: (sarcastically)

Alex (vo): Hi, I'm Alex from I Hate Everything. Three days after releasing my review of Cool Cat Saves The Kids, a terribly infamously bad movie, I received a suspicious copyright from the director of the movie himself: Derek Savage, who over the course of the month, used this unfair strike to censor and restrict my channel, and even tried to bully an apology out of me that I have since made public.

Alex (vo): This clueless man, who has shown multiple times that he has as little understanding of how the Fair Use law works as he is knowledgable about competent filmmaking, was given the tools to waste my time and threaten my livelihood, purely because he didn't like my review of his God awful movie, which, by the way, I did recommend it at the end of the video, in a "so bad, it's good" kind of way, and I wasn't alone either. It turns out Mr. Savage has been on a copyright rampage, silencing at least two other creators (Bobsheaux and Josiah Clark), who had a negatively slanted review of his movie.

Alex (vo): Savage's childish behaviour aside, this highlights just 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.

(Shows the Your Movie Sucks Avatar)

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 provided more leverage for the claimant and less leverage for the defendant.

NC: There are tons of videos that are taken down unfairly on YouTube. (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 Isn't there a system in place? (beat) In theory. (vo) After Google bought YouTube, Viacom immediately went to court against them for the content lamer without there permission. Funny, seeing how Viacom actually uploaded about a hundred of the videos they tried to sue YouTube for. YouTube defended itself with the DMCA (Digital Millennium Copyright Act), and safe harbor provision. They created a system that would shed any responsibility for the videos on YouTube, and again in theory, help protect it's creators. This system is, was, and will continue to be abused. For some reason, at a much more rapid paste this year.

NC: The system is there's two penalties for copyright infringement: a claim or a strike (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 copyright material within your video, then an automatic action will take place. This action is entirely depended on what the copyright holder peevishly set it to do. For example, if I owned a movie, and I wanted to add it to YouTube's content idea system, I would get to decide how much footage of 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 claim.

NC: So, how can that be possibly be unfair?

Adam (vo): YouTube's system is set up in such a way that incentives claimants to be abuse it, and that is precisely why there system is rampant with abuse. You can file a dispute, and then it is up the claimant to respond to you dispute within thirty days. If they don't respond in thirty days, then there 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: The most excruciating part was the lack of any interaction from anyone at YouTube. The automated forums and e-mails seemed designed in such a way that no human, working at YouTube, will actually ever see it, so it makes you feel pretty helpless and worth it. There was no one I could contact to fix a 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 busing 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 you channel by filing a counter notification, but those can take up to a month to complete as well. And as soon as you three strikes on you 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, incase all of them come back with take down notices.

NC: But, okay. Some companies are going to be unfair, and some make mistakes. At least, they're not going to try and do it again right (beat) why? (vo) There are no penalties for companies, creating false claims, or strikes. In fact, there's a claim where you can take someones monotization on the video, even if the claim turns out to be false.

NC (vo): So, if a studio says "hey your (vo) Event Horizon review, that's our review one hundred percent"; they can take the money, your supposed to be making on it, until you file a counter claim. And, if they never fight or or are never proving to be wrong, they stil keep to all the money that they made on you, no questions asked.

NC: But, there is 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 "egada", 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, and often issue a takedown notice on your video.

NC: So, you might be thinking "Big deal, so you have to fight off a claims every once in awhile. 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 foughten every illegitimate claim that's 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 that I was unable to monetize for several months just because of how long the claims process takes

NC (vo): It's gotten to the point where we've had to change our content dramatically. (Shows scees front the Mad Max Fury Road review) Clips of films have been instenslly reduced down, and (shows scenes from the Jurassic World review) some don't even use clips at all; they use reenactments.

NC: However, as others cases proved, even not using footage isn't enough.

(Shows scenes from Brad Brad Jones's Midnight Screenings)

Brad: I received a copyright strike on my account, for one of my Midnight Screenings reviews, which is a series where me and another person, sit in a car, in the parking light, after going to see a movie at the theatre, and we just talk about the movie. There's no clips, no footage; it's just us, sitting in a car...talking about a movie. And if you didn't know that, you could have known about it simply just by watching the video.

NC (vo): So, what started out as a means to protect studios, and content creators; is now be used as a means to silence and steal. We're at a point now where, not only is this becoming more and more unethical and wrong, it's becoming illegal. (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, EEF sued Universal on Lenz's behalf, arguing that Universal abused the DMCA by improperly targeting lawful fair use. A federal appeals court affirmed that copyright holders must consider whether a use of material is fair use, before sending a takedown notice. But, don't worry. That still didn't stop the studios from wrongful DMCA takedowns. Tons of them still going on today.

NC (vo): Studio Ghibli gave us a strike for telling a others to go see My Neighbor Totoro. Ironic as a studio that created the No-Face, a creature who just wants to spread joy but gets consumed by greed gobbling up anything that gets 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 studio warning us about an Orwellian future, saying they'll lead us away from a future that controls and censors us, is now controlling and censoring us. (sarcastically) Wow, you really stopped that future from happening.

NC: The studios have made it clear that they are not going to play fair, and they are willing to step over anyone's rights to get exactly what they want. So, what needs to change. (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 there claim, the money should go to the creator.

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?

*Note: Transcript not yet completed.* 

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