The Chilling Effect of NBC, the DMCA, and YouTube
Let me begin this post by saying that I’m a little aggravated this week. Every week throughout this semester students in my TV Criticism class have engaged in blog-based discussions. Basically, I have emulated the In Media Res aspect of MediaCommons’ website in my class concept. This process gives students opportunities outside of the classroom to discuss scenes of programs we have watched in the classroom. In order to do this, each week a different student is charged with choosing a segment from the assigned episode, then I upload that segment to YouTube and import it into the blog space. The students gain an opportunity to learn through discussion and by emulating their peers’ approaches to analysis.
This past week, we watched an episode of House, M.D. called “Occam’s Razor” as part of a discussion of TV genre. As I have argued in another post, I believe House is basically a cleverly disguised detective show. In any event, I uploaded the short segment that my student had chosen and received the following email within hours of the upload (based on the YouTube copyright designated at the bottom of the message who knows if I’ll be charged with a copyright violation for posting this message, but I’ll take the risk):
Dear YouTube Member:
NBC Universal has claimed some or all visual content in your video House, M.D. – Occam’s Razor. This claim was made as part of the YouTube Content Identification program.
Your video is no longer available because NBC Universal has chosen to block it.
Claim Details:
Copyright owner: NBC Universal
Content claimed: Some or all of the visual content
Policy: Block this content.
Applies to these locations:
Everywhere
NBC Universal claimed this content as a part of the YouTube Content Identification program. YouTube allows partners to review YouTube videos for content to which they own the rights. Partners may use our automated video / audio matching system to identify their content, or they may manually review videos.
If you believe that this claim was made in error, or that you are otherwise authorized to use the content at issue, you can dispute this claim with NBC Universal and view other options in the Video ID Matches section of your YouTube account. Please note that YouTube does not mediate copyright disputes between YouTube owners. Learn more about video identification disputes.
Sincerely,
The YouTube Content Identification Team
Copyright © 2008 YouTube, Inc.
The problem that I have with this claim made by NBC Universal involves the purpose for which this clip was used. According to Stanford University’s Copyright & Fair Use description the following constitutes Fair Use of copyrighted material:
“If you are commenting upon or critiquing a copyrighted work–for instance, writing a book review — fair use principles allow you to reproduce some of the work to achieve your purposes. Some examples of commentary and criticism include:
* quoting a few lines from a Bob Dylan song in a music review
* summarizing and quoting from a medical article on prostate cancer in a news report
* copying a few paragraphs from a news article for use by a teacher or student in a lesson, or
* copying a portion of a Sports Illustrated magazine article for use in a related court case.
The underlying rationale of this rule is that the public benefits from your review, which is enhanced by including some of the copyrighted material. Additional examples of commentary or criticism are provided in the examples of fair use cases.”
Whenever, I upload copyrighted material to YouTube, which I have done on a semi-frequent basis, I always include the following disclaimer:
“This clip is being used for an academic critique and should fall under the fair use provisions of copyright law. Feel free to read the blog entry that uses this clip at aucommstudies.wordpress.com”
In essence, I believe based on the short period of time that elapsed between the upload of the file and its subsequent removal that I was captured in the web of an automated bot that searches YouTube in order to protect NBC’s ownership of property. It is practices like this that infringe upon the “fair” and proper uses of copyrighted material. As a society, our freedoms to engage in comment and criticism are more frequently hindered than you may expect. I encourage readers of this blog to take an active stance in any negotiation regarding the Digital Millennium Copyright Act (DMCA) and to recognize the ways that members of corporate America are attempting to control both the culture that they help to construct and corresponding discussions and critiques of that culture.
As for me, I have filed a counter request against NBC Universal and hope that the decision comes in my favor soon. In the meantime, this component of my course has been canceled for this week and my students’ voices have been summarily silenced, at least when it comes to House, M.D.
The problem that I have is a fundamental one because I firmly believe that knowledge should be freely and openly shared. To say that education must take place in private environments without the opportunity for external involvement seriously hinders the development of locales of collective intelligence and shared knowledge. We have become so litigious and so involved in attempting to control ideas and access to them that we are inadvertently hampering the development of new, and potentially important, ideas–even if they are about what some consider to be seemingly mundane topics. And, I find this a real shame. As Lawrence Lessig notes in his wonderful book Free Culture, we are quickly becoming a permission culture rather than a free culture and when we are compelled to ask permission to participate this hurts everyone. With this in mind Lessig writes, “The transaction costs buried within a permission culture are enough to bury a wide range of creativity” (193). Beyond creativity comes an even more disturbing result of the heavy-handed enforcement of copyright laws and that is the chilling effect that these laws are bringing to what should be free and open discussions, and in my case the ability to compel my students to participate within the blooming online media environment. I can argue my case for fair use, but this does not protect me or anyone else that big business deems a violator because as Lessig notes, “Fair use in America simply means the right to hire a lawyer to defend your write to create” (187). You see, copyright law is not a criminal, but is instead a civil law, which means that monetary damages could be sought and defending yourself in the face of these cases can be quite expensive. In essence, those with the cash understand the rules of the game and they are willing to spend us into submission. The system is broken and its flaws deserve close scrutiny. More importantly, awareness needs to be raised and we, as a society, must not allow these demands to go unchallenged.
Tags: Alfred, copyright, DMCA, NBC, Television, TV, Universal, YouTube
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April 25, 2008 at 8:36 pm
Chad – I posted this response on my blog as well, but here it is for reference:
I do think that this use of YouTube is a borderline case of fair use. Here’s my take: if the video itself uses copyrighted footage to make a critical point, parody, or otherwise remixes to say something beyond the original, it seems to be fair use and YouTube should not take it down. But it sounds like your students are embedding the commentary on another website, using YouTube as the source of footage to critique and discuss. I think there’s a clear fair use case for you publishing that clip on your website, but on YouTube, it is not functioning as criticism or commentary, just republishing without permission. So I think YouTube is warranted in removing it.
What can you do? Well, you could post the clip on your own server, making it playable only from your website where it functions as the object of commentary. Or you could use Hulu.com’s embed function, since House is on that site (acknowledging that it would also play ads, which might not be acceptable for your pedagogy). Or you could have your students make a remix video with the House original to transform it into a work of criticism, reposting it to YouTube.
Good luck!
-Jason
April 27, 2008 at 3:29 pm
Let me begin by saying that I appreciate Jason weighing in here and I also understand his position in respect to YouTube. Not only that, I agree with his position that in order for YouTube to protect itself under the safe harbor provisions of the law that YouTube had virtually no option but to remove our content. Moreover, Jason is correct that on YouTube the pieces do not function with attached commentary, yet there is an inclusion that directs YouTube users to the commentary that has been attached via a WordPress blog and in that respect the clip and the commentary are not terribly far removed from one another.
I would also add that YouTube itself does have a commenting function and it would seem logical that we could use this area on YouTube for our discussions and this solution would also address some of the issues that Jason has pointed out in our current design, but I don’t believe that this solution would have prevented the problem that we have encountered. Moreover, my real issue involves the way the piece was identified.
Using code searches in order to locate infringements can be extremely problematic because clearly legal uses, like the remix videos that Jason recommends and an approach that I might integrate into this class, also could be caught in this legal net. The code exists in the clips we have used this semester, but it also exists in video lifted and altered during the creation of a remix video. In this respect, the process requires more human consideration than I believe is currently occurring. In the end, my argument is largely one that begs for wide allowances in pedagogical experimentation and I think as things currently stand with copyright law these allowances are not nearly wide enough.