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A slight change of plan for this post due to a number of current news stories about YouTube and fair use. Part 2 of "Patents, products and inventor misconceptions" will be up next week.

On November 19th, Fred von Lohmann, Google's Copyright Legal Director, published this blog post. As indicated in the post, Google will be:

"offering legal support to a handful of videos that we believe represent clear fair uses which have been subject to DMCA takedowns. With approval of the video creators, we’ll keep the videos live on YouTube in the U.S., feature them in the YouTube Copyright Center as strong examples of fair use, and cover the cost of any copyright lawsuits brought against them"

As he also notes in his post: "More than 400 hours of video are uploaded to YouTube every minute".

The most cursory of YouTube searches will serve to demonstrate that a lot of the material on YouTube is copyright material, uploaded by users who don't have permission, whether or not their uploading is done with good intentions. For example, it's common to see statements similar to this on many videos, commonly when a user who is a fan of a particular band uploads their music:

"I DO NOT OWN THIS MUSIC!!!! THIS IS ONLY FOR PROMOTION!!!!!! All Rights to [artist]. I do not own any rights!!!!!"

As a trained Patent Attorney familiar with the black arts of copyright, I can confirm that if this incantation is chanted at sunset on Samhain Eve from within the charmed circle, by a skyclad druid dancing widdershins around the circumference, it is a magic powerful enough to avert the wrath of the Gods of Takedown. However, merely cutting and pasting it on your video description? Not so much.

YouTube being the size that it is, and the amount of material being so huge, the onus is on the artist or owner to monitor what is being uploaded, and if they consider that their rights are being infringed, they can issue a takedown notice - basically ask YouTube to remove the video(s) in question.

So a rights owner can relatively easily protect their rights as long as they are proactive in their monitoring. And as outlined above, a lot of the material that gets uploaded is clearly, directly and unambiguously infringing copyright.

The problems start when copyright material is re-purposed to make something new, such as for example a parody video, a commentary video, or similar. These use copyright material owned by another party, but create something new with it. In theory the creators can rely on the 'fair use' defence. But in practice, their videos tend to get taken down before they have a chance to argue their case, and they're left in the position of having to argue that this was unjustified and the video should be reinstated. That costs money and time, and most minnows can't confront a multi-national shark with deep pockets. As a consequence, the takedown law is frequently abused to demand the takedown of works the copyright holder arguably has no legal authority over.

As an example, 'How It Should Have Ended' make animated parody videos of popular movies (mostly superhero/sci-fi films). These are normally around 3-4 minutes long and usually joke about something illogical or stupid that the characters in the official film did, and 'change' the ending to something funnier. Their YouTube channel has over five million subscribers, so they're pretty popular in their own right.

Their video for how 'Frozen' should have ended as originally uploaded featured members of the X-Men singing 'Let it Go' (if you're a parent, a fan of the X-Men, and know that Hugh Jackman started his career singing and acting in musicals, this is a very clever joke. If not, you'll just have to trust me on this...).

It appears that The House of the Mouse wasn't too happy about the huge dent this obvious parody was putting in the minimal and derisory profits they were getting from 'Frozen', so they issued a claim that the video was a performance of their song, and that their copyright was infringed. HISHE were forced to remove the original and replace that portion of their video with something a lot less funny (the replacement video is here. The original can still be found, but I won't link to it for obvious reasons. Although I can't stop you searching YouTube for 'Hishe Frozen original').

Which is why the statement from Mr von Lohmann is so interesting. It appears that in the future, at least some videos such as this won't automatically be taken down, and that Google will be providing legal support while the action is resolved. Although it remains to be seen how this will play out in practice, and how much support will be provided, even if this is a symbolic/token gesture it sends a very clear message of support to users and organisations who rely on YouTube as a platform and revenue-provider.

Personally, I find this to be very welcome news, although I suspect Google is not being entirely altruistic. There are thousands of professional (as in, there to make money) channels that use copyright material from other parties to provide commentary, parody and similar. This might seem bizarre to oldies like myself who were brought up with the four channels of normal broadcast television being the only choice, but I'm reliably informed that this is big business. From Google's point of view, it's probably not that great for business to have them operating at the whim of other large multinationals.

Watch this space, as they say.

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