Why YouTube is offering legal support for users threatened with takedowns

When an online video creator receives a notice instructing them to take down a video because it contains copyrighted material — such as a snippet of a TV show or, until recently, even the song “Happy Birthday” — they often have few options but to comply.

Copyright battles can often prove expensive and drag on for years, presenting a challenge for video creators and for video sharing sites, which have often cracked down harshly in a bid to stop the spread of pirated material.

Now, YouTube is offering an alternative, announcing on Thursday that it will begin providing “legal support” to a handful of users so they can fight claims from copyright holders. If the copyright-holder sues, the tech giant will assist users by paying up to $1 million in legal fees.

The site, which is owned by Google, is offering aid to the creators of four videos that it says meet the standard of fair use, an exemption to US copyright law that allows new projects that make use of copyrighted material in a way that goes beyond the copyright holder’s original intent, for example by commenting, parodying, or satirizing it.

The company says the move is intended to correct some of the power balance that can be directed against content creators in the wake of the controversial 1998 Digital Millennium Copyright Act, which implemented digital rights management software often used to protect music or downloadable movies from online piracy.

“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,” wrote Fred von Lohmann, Google’s copyright legal director, in a blog post announcing the move.

The videos YouTube has selected so far are wide-ranging, including a video game review, a UFO-debunking, a critique of state lawmakers in Ohio by a local pro-choice group, and a comedic commentary on the controversy surrounding former NAACP chapter president Rachel Dolezal.

The move is particularly significant as a symbolic "brushback pitch" against copyright holders, says James Grimmelmann, a law professor at the University of Maryland. "It’s a very strong warning that copyright holders should rethink their positions because a major company has said, 'We think this is fair use,' " says Professor Grimmelmann, who focuses on Internet law and intellectual property issues.

Providing a legal defense on fair use grounds may also assuage long-running criticism that YouTube's automatic system for responding to takedown notices does not always allow users to contest the decision to remove a video, he adds.

"Google hasn’t announced any changes to its larger practices, but they’re clearly trying to position themselves as more user friendly," Grimmelmann says. "You could almost read this as an offering, to a group that has had reasons to feel slighted."

Constantine Guiliotis – whose YouTube channel “U.F.O Theater,” focuses on debunking U.F.O. sightings by combining clips found online with his own commentary – was one of the users selected for the effort. His videos have been subject to three takedown notices, but after YouTube reviewed them and determined they would meet the definition of fair use, they were reposted, the New York Times reports.

“It was very gratifying to know a company cares about fair use and to single out someone like me,” Mr. Guiliotis told the Times.

The program is also intended as an educational effort for the site’s users about fair use, including creating a library showing successful examples of using copyrighted material lawfully, Google says.

So far, the site is taking a carefully targeted approach to what videos it chooses to defend, noting that the program will support only very small portion of videos that are threatened with takedown notices, and may not extend to some videos that would likely be considered fair use.

But Grimmelmann says the site could do more to educate users by closely tailoring its guidelines on appealing a DMCA violation to more closely follow the law. While there has been more awareness about fair use over the past few years, there are some misconceptions among users, such as a belief that posting a disclaimer noting that a video contains copyrighted material makes their own upload fair use.

"They’re pointing to features that don’t always make a lot of difference, but ignoring that one that does, which is transformativeness," he says.

The Electronic Frontier Foundation has also supported the effort, although the group notes that an additional step would be to allow any user to enroll in the program, rather than hand-selecting examples that Google says are fair use.

"We think this is a solid and unprecedented step forward in protecting fair use on the site," wrote Amul Kalia, EFF's Intake Coordinator, in a blog post. "We commend YouTube for standing up for its users, and we hope the program will inspire other service providers on the web to follow its lead."

Despite its initially limited roll-out, the YouTube effort may be most valuable in its ability to appeal to a broad swath of users.

"There’s a very classic conception of fair use, which is people who need to work with raw materials, such as a book critic," Grimmelmann says. "This is the other extreme. This is about people who are making videos often using their home computers – people who are fans, people who are remixers, people who are making video that is personally important to them, that will never be part of the marketplace."