ICYMI: Why Fair Use Is Crucial In the DMCA

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Why Fair Use Is Crucial In the DMCA

WASHINGTON—During the July 28 Senate Subcommittee Hearing on Intellectual Property hearing “How Does the DMCA Contemplate Limitations and Exceptions Like Fair Use?”, copyright policy experts and creators made the case that fair use and section 512 of the DMCA are supporting partners in the promotion of free speech and expression, especially in the digital age when fair use is more pervasive than ever.

Rick Beato, Songwriter, Producer, Engineer, and Educator, gives an example of fair use at work online: 

“The concept of Fair Use is meaningless when frivolous or random interpretations allow a team of searchers, typically employed by a major label, harass creators for content that falls under the legal definition of Fair Use. A clear-cut case of piracy is one thing, but there have to be exemptions for Fair Use.

“One of my recent music theory videos called ‘The Mixolydian Mode’ was manually claimed by Sony ATV because I played ten seconds of a Beatles song on my acoustic guitar to demonstrate how the melody is derived from this scale. This is an obvious example of Fair Use. In response, I made a video entitled ‘The Music Industry SCAM to Ripoff YouTubers.’ The video describes how record labels employ Content ID farms, essentially collection agencies, to manually claim YouTube videos for demonetization. Don Henley testified to this before this very Committee. My video received over 500,000 views within 24 hours and the claim was then released by Sony without me even filing a dispute. I believe the claim was released because I have a channel with over one and a half million subscribers and hence have a platform to air these grievances. Creators with smaller audiences are not so fortunate.

Joseph C. Gratz, Copyright Legal Expert, explains why content filtering doesn’t work:

“Even the most advanced filtering systems in the world still make these basic errors—not because they are insufficiently advanced, but because the inability to consider context is inherent in automated filtering. Just last week, for example, the YouTube Content ID system took down a live stream of a panel about Star Trek organized by that show’s producers apparently because some of the sound effects from the show were used during the presentation. Because machines can’t consider context, the machine couldn’t tell that the sounds were being used in an obviously authorized live presentation being run by the show’s creators. Nor is this an isolated incident: the same thing happened to a NYU Law School video of a class about music copyright law…

“This is not to say that automated systems have no role to play. Systems like YouTube’s Content ID and Facebook’s Rights Manager, as well as third-party systems like TinEye, can help rightsholders identify uses of their material, so they can decide whether they have a basis to request removal of that material. And voluntary agreements about automated systems between intermediaries and copyright holders provide one pathway for addressing the burdens of identifying infringement online. But Congress should not mandate the use of automated filtering systems, including ‘take down, stay down’ systems.”

Sherwin Siy, Lead Public Policy Manager, Wikimedia Foundation, on the importance of fair use:
“Fair use is sometimes treated as a rare exception to the rule of copyright, when it is not. Fair use is completely pervasive. It operates not only specific instances of parody or educational uses, but also in everyday use: we can see fair use at work when a tourist posts a vacation video of animated billboards in Times Square, or when a citizen journalist begins recording an altercation on their phone as music blares from a nearby car. Especially now that so much of our lives are conducted via electronic reproductions, public performances, and displays of the world around us, fair use has to operate constantly in the background to ensure that artwork visible behind us or children’s television playing in the background of our work calls don’t render us liable for copyright infringement.”


Re:Create represents a cross-section of creators, advocates, thinkers and consumers seeking to promote copyright standards that foster innovation, creativity and economic growth. For more information, please visit recreatecoalition.org.