The most difficult aspect of being a video sharing website is balancing the demands of copyright protections and fair use claims. And, being the most popular one only makes things more complicated. In an unprecedented move last week, Youtube determined that commentary on short movie clips could not shield a user from copyright infringement. Following a Digital Millennium Copyright Act (DMCA) claim from several copyright holders, Youtube removed the offending clips and because it was the user’s third “offense,” disabled his account. The account in question belongs to Kevin Lee, a film critic who films himself providing commentary on select movies, which he uploads to Youtube. To illustrate his points, he incorporates short 1-2 minute movie clips into his videos. As mentioned earlier, this is not Mr. Lee’s first “offense.” Earlier in his video career, he maintained a blog containing his film critiques. To supplement them, he uploaded several unedited movie clips onto Youtube. When his first two posting faced DMCA notices to remove, he complied immediately since he believed that there was a possibility that he was infringing. To overcome this, Mr. Lee edited the same clips to include his voice-over commentary with links to his film critique blog. Regardless of his efforts, he received his third DMCA notice and Youtube promptly disabled his account before he had the chance to issue a counter notice although as Professor Elizabeth Stark notes, Mr. Lee could file one even after losing his Youtube account. However, he’d better be ready to defend it, even to the point of going to  court. Given that he probably isn’t making much money (and that’s the point), is it worth the fight? On principle, yes. For a legal battle that copyright holders may wage on him that could end up costing him precious time and money? Maybe. Still, with organizations like the EFF offering to help provide assistance, it might be worth it. In the meantime, Mr. Lee is considering other venues to publish his video commentaries.

Under the DMCA, 512(g)(2), the alleged infringer has the opportunity to issue a counter claim to the copyright owner disputing copyright infringement allegations. The copyright owner would have 10 business days to respond (most likely by a lawsuit) or else the work could be reposted.

What makes this controversial is that Mr. Lee’s work could have been potentially considered fair use. Using the rubric found in sections 107 through 118 of the Copyright Act (title 17, U. S. Code), fair use is determined by:

1. The purpose of the use (whether it is for commercial or nonprofit use)

2. The nature of the work (facts and ideas are not a part of the copyright)

3. Amount used from the original work (side note: de minimis defense: mixed results- successful in Bridgeport, but not so much in Air Pirates, which is a really interesting case featuring counter-culture Disney characters)

4. Effect on the marketplace for the copyrighted

Watch the “Disney” primer to fair use. It’s pretty awesome. If you want to see the full video (not just the fair use section) click here.

While there are those like Professor Michael Geist who exonerate Youtube for merely following the DMCA or others who claim it is impossible for Youtube to manage careful analysis of the thousands of take down notices it receives, such practices remain questionable. For the sake of convenience and preempting possible legal quagmires, Youtube errs on the side of silencing speech rather than preserving it. The situation becomes more controversial when the video commentary is political as was the case during the recent presidential campaign. Numerous videos received DMCA notices from networks such as NBC for having very short 1-2 minute clips of interviews with the presidential candidates and Youtube removed these videos without hesistation. This wasn’t limited solely to independent, albeit partisan commentators, but also the presidential campaigns too.

In all fairness, Youtube does have a set procedure to enable counter notices. Yet, the most troubling aspect of it is the procedure was not designed to ensure swift and positive action. So, even if Mr. Lee had the chance to dispute Youtube’s decision to remove his videos from the site, his chances of regaining his account and videos on the site are pretty slim. To demonstrate this point, Youtube user and blogger, Matt Zoller Seitz, uploaded a few edited movie clips onto the site and as expected, received a takedown notice almost immediately. Without hesitation, Seitz filed his counter notice with Youtube to have the video reinstated. His result: vague emails, unresolved, circuitous phone calls, and videos that remained off of Youtube even though he had his video checked for a plausible fair use claim.

Going to back to Professor Geist, Youtube’s actions make sense in terms of protecting itself.  From Youtube’s perspective, the danger is in the financial might of many copyright holders (most who are large corporations). The potential cost for allowing contested videos on its website is a costly legal battle (whether with merit or not, it can be used to hurt Youtube) that has little tangible gain for the company. Winning the lawsuit would only serve to further incense some copyright holders to pursue even more restrictive regulations on Youtube.

In the end, Youtube remains one of the most open forums for speech–including clearly infringing works such as ripped DVDs–but it is important that Youtube balance its desire to be in compliance with the law while taking into account legitimate exceptions. As remix culture continues to expand in our society, fair use becomes an increasingly important issue that we cannot ignore and allow to weaken as a defensible means of expression.