Google’s Move Toward Fair Use Comes In Anticipation Of YouTube Red

Google’s copyright legal director Fred Von Lohmann announced in November that Google would, on the basis of fair use, offer legal support to a select group of content creators on YouTube that receive copyright claims.

Videos that in Google’s view constitute fair use will remain live in the United States and be featured in the YouTube Copyright Center.

Google’s announcement comes at a time when online content is rapidly moving toward video. According to a recent study by Cisco, video content on the web in 2017 will account for 69 percent of consumer Internet traffic, and by 2019 this statistic will reach 90 percent.

If you have recently scrolled through your Facebook timeline or Twitter feed you have likely noticed this transition. Every second post or tweet features a clip, and these companies have made it clear that video will be featured prominently on their platforms. Video’s engaging nature and significantly higher conversion rates is an attractive alternative to plain text for websites looking to engage and retain visitors.

From a legal standpoint, the sheer volume of video being created, uploaded and shared online will significantly change the legal landscape in the world of copyrights, specifically, fair use. For Google, the issue of copyrights suddenly took center stage when they decided to launch their paid subscription service YouTube Red. Red is working with the largest content creators — such as video gamer Felix Kjellberg of channel “PewDiePie,” with more than 39 million subscribers — to create original programming.

The issue is that, unlike Hulu or Netflix, the content used by their largest earners is not original content. Many operate under the fair-use doctrine in using third-party content in their work, be it “PewDiePie,” reviewing video games or YouTube Channel FunToyzCollector, who earned approximately $5 million last year opening and commenting on Disney toys.

What this means is that, at any time, the creator is at the mercy of YouTube’s automatic takedown system, where a copyright owner can issue a notice and severely hamper a channel’s ability to operate, as well as the viability of YouTube as a distributor of content.

YouTube’s creators will often cite “fair use” in counter notifications; however, the concept is quite complex and requires significant legal analysis, making it very difficult for a creator to fully appreciate what constitutes fair use. There is no proverbial silver bullet or black and white test as to when fair use is applicable, and creators need to be extremely careful.

The sheer volume of video being created, uploaded and shared online will significantly change the legal landscape in the world of copyrights.

For Google, defending its new “partners” is paramount for YouTube Red to succeed. Google is clearly sending a message to copyright owners who issue takedowns without considering fair use; by hand-picking cases, they hope to change the legal landscape in defending fair use.

The present process on YouTube allows a copyright owner to issue takedown notices without considering fair use. Further, a copyright owner can take down a 5-minute video for an image that appears for one second. A copyright owner also can monetize an entire video based on a single image being used.

This arbitrary system has seen channels such as WatchMojo, the 33rd most viewed YouTube channel with roughly 60 million views a week, and recently, the popular Majestic Casual, with 2.3 million subscribers, both shut down and later reinstated.

It is clear that given the sheer volume of videos being uploaded and shared over the web, copyright owners will need to re-evaluate what to consider as infringement. In fact, in a recent decision (Lenz v Universal Music Corp) the Ninth Circuit Court of Appeals affirmed the district court’s summary judgment, that, prior to sending a takedown notice under the DMCA, a copyright holder must first evaluate whether the alleged unauthorized performance constituted fair use — or they can be held to damages.

For Google, the policy is more than just adopting to this shift; it is simply necessary if they hope to both convince the next generation of creators that YouTube is the best platform for their work and at the same time propel YouTube Red to the heights of Netflix or Hulu as a content creator and distribution platform.