YouTube Says It Will Offer Legal Protection Of Up To $1 Million For Select Video Creators Facing DMCA Takedowns

YouTube announced this morning plans to up its efforts in protecting video creators from copyright takedown requests for videos that should otherwise be classified as “fair use.” The company says that, in select cases, it will compensate creators whose videos have been subject to these takedown notices for up to $1 million in legal costs in the event the takedown results in a lawsuit for copyright infringement. The videos will remain live on YouTube, during this process.

The new initiative is part of a growing effort to fight back against DMCA abuse.

The DMCA, or Digital Millennium Copyright Act, has long since been wielded by copyright holders who use the law to take down videos that should fall under the protections provided by “fair use.” Intended to crackdown on Internet piracy, the DMCA seems to be more often used these days to interfere with free expression, creativity, innovation, competition, and more.

In addition, thanks to technology improvements over the years, the process for getting videos pulled down by way of DMCA takedown requests has been automated. The fallout has affected everything from political ads to things like a video of a baby bopping along to a Prince song – the latter which actually made it to the U.S. Court of Appeals as a result of a legal effort to fight back against these unjust takedowns.

Now YouTube says that it will selectively offer legal support to a handful of videos that represent “clear fair uses which have been subject to DMCA takedowns.”

In these cases, with the creators’ permission, YouTube will keep the videos live on its site in the U.S., feature them in its YouTube Copyright Center, and cover the cost of any copyright lawsuits brought against them.

“We’re doing this because we recognize that creators can be intimidated by the DMCA’s counter notification process, and the potential for litigation that comes with it (for more background on the DMCA and copyright law see check out this Copyright Basics video),” writes Fred von Lohmann, YouTube’s Copyright Legal Director in an announcement about the new program.

“In addition to protecting the individual creator, this program could, over time, create a ‘demo reel’ that will help the YouTube community and copyright owners alike better understand what fair use looks like online and develop best practices as a community,” he says.

However, these new protections aren’t something video creators can request from YouTube on their own. It’s more a case of “don’t call us, we’ll call you,” the company explains. There are 400 hours of video uploaded to YouTube per minute, and many would classify as fair use – meaning they use existing, copyrighted content like music or TV clips in new ways that provide value beyond the original. YouTube simply can’t offer to protect them all.

So, instead of offering legal support to anyone with a good example of fair use, YouTube is carefully choosing videos for its effort that it thinks have a good shot in court. The company already has a track record of being able to identify suitable videos, having garnered press coverage in a number of cases where it asked rights owners to reconsider their takedowns.

Says YouTube on its Copyright Center, these previous requests have included the following videos:

  • This video by the Young Turks, which shows brief clips from a heavily-criticized commercial as part of a conversation on why it offended viewers.
  • Secular Talk’s video, which criticizes Mike Huckabee for endorsing an unproven treatment for diabetes.
  • Buffy vs Edward: Twilight Remixed — [original version], a remix comparing the ways women are portrayed in two vampire-related works targeted at teenagers.
  • “No Offense”, uploaded by the National Organization for Marriage, which used a rant by Perez Hilton as an example of rude behavior from proponents of same-sex marriage.
  • Political Payoffs And Middle Class Layoffs, an ad created for Mitt Romney’s presidential campaign, which made fair use of a clip of Barack Obama singing Al Green’s “Let’s Stay Together.”

Above: A playlist of videos YouTube has protected

This move comes following the ruling against Universal Music this fall, where the court upheld that copyright owners must consider fair use before sending a takedown notice. The case involved the above-mentioned video of the dancing toddler. A mother simply wanted to share a cute video with her family, but Universal believed it had the right to have the video pulled since the child was dancing to Prince’s music. Universal will now have to defend itself in trial, proving that it considered fair use before sending the notice.

For YouTube, the legal protection could have a big impact on the video community as a whole, even if only a handful of videos are actually chosen for legal protections. The idea is that the videos picked will be examples that represent a broader example of when the DMCA is used in an abusive fashion, and if they make it to court, a win on the video creator’s part could help to establish legal precedents and provide guidelines for the larger YouTube community to follow in the future.

However, even though only a small number of videos will be offered legal support, YouTube says it will continue to resist unsupported DMCA takedowns as part of its normal process.