There has been a lot of attention paid to YouTube’s announcement of its “Copyright School,” which those accused of infringement will be forced to attend online. YouTube, of course, is trying to fend off more litigation, but that should not be an excuse for misrepresenting copyright law, as the new video that is part of the “school” does.
The video features animated characters who are identified as the “Happy Tree Friends.” The focus of the video is on Russell, who is dressed as a pirate from the beginning of the video. This is one of the favorite themes of the content industry, and YouTube is clearly simply doing what they are told to do in designing their “school” this way. We have written before about why the pirate analogy is legally flawed. But it is also pretty stupid to use it in this context, since studies have indicated that it does not have the desired effect on the target audience, who think of pirates, at least as portrayed here, as rather romantic and exciting. Perhaps the myopic executives in the content industries, who are obviously calling the tune for YouTube, think this is a devastating critique, but the users of YouTube probably do not.
Other flaws are equally evident. The video threatens users with a “three-strikes” policy where three accusations of infringement can get a user “banned for life.” This is entirely a voluntary policy by YouTube, since attempts to write it in to US law have so far not succeeded. The problem, of course, is that there are so many inaccurate accusations of infringement, and a three-strikes policy completely avoids the due process that is supposed to be afforded to those accused of the tort of copyright infringement. Three strikes works as if an accusation is the same as a judgment of guilt, which it decidedly is not.
If this were not enough to show that YouTube is uninterested in being fair or accurate, their appalling treatment of fair use clinches the matter. Fair use is mentioned in a quick discussion of mash-ups, but the description of fair use is done in a sped-up voice intended to convey that this is legalese which the viewer cannot possibly understand. The clear message is that fair use is too complicated for ordinary users to even consider. The Russell character is literally crushed by the weight of the fair use screen which, interestingly, seems to be an industry written text, not the actual text of section 107 of the copyright law. It ends by recommending that one consult a lawyer whenever there is doubt. Since fair use is designed to be a balancing test rather than a bright-line rule, there is always an element of doubt, so this qualification swallows the rule. Case closed on fair use.
The video also discusses the notice and takedown provisions of the law. What is interesting is that there is no mention of the potential misuse of takedown notices, which is, in fact, a substantial problem. The discussion of misuse takes place only in regard to the counter-notification process, which users can employ if their work is taken down wrongfully. Here there is a stern warning against misuse, although there is little evidence that this part of the law is regularly abused, and the viewer is left with the idea that counter-notification is too risky to be used. Just do what the content owners tell you and be thankful you are not in jail.
If YouTube really wanted to present a balanced view of copyright, at the very least they should balance the Happy Tree Friends travesty with this humorous video that more accurately describes the use of the counter notification process to challenge a wrongful takedown notice.
Should any reminder that the takedown process can be abused, and that the counter-notification provisions are a necessary part of copyright law, be needed, this blog post about how some doctors abuse the process to get medical websites to remove critical evaluations provides it. What is interesting is that the weapons of choice against web criticism of specific doctors are copyright claims, rather than defamation law. If the criticism that is targeted is genuinely untrue, libel law seems like the appropriate way to fight it. But it is so much easier to send a copyright infringement takedown notice, and the use of the counter-notification process is so sporadic, that this part of copyright provides a shortcut to silencing criticism that avoids having to prove that what was said was untrue or caused harm.
Because copyright infringement claims are so easy to abuse in the service of suppressing protected speech, it is truly appalling that YouTube, which many think of as a tool to empower free expression, has chosen to present such a one-sided and slanted picture of the law.
Update – if you just can’t get enough really bad copyright videos, check out this copyright PSA, apparently created by a teacher using her elementary students. Not only does it get the law wrong, but it is genuinely creepy as the children chant dubious answers to copyright questions in unison.