Report Recommends Fair Use Principles for User Generated Video Content

Yesterday, the Electronic Frontier Foundation and a group of public interest groups dedicated to protecting free speech, including the Center for Social Media at American University and the Berkman Center for Internet & Society, published a report entitled "Fair Use Principles for User Generated Video Content" that sets out six guidelines designed to minimize the collateral damage that copyright enforcement efforts may inflict on video creators who remix copyrighted material.

According to the press release accompanying the report:

Fair uses have been mistakenly caught up in copyright enforcement dragnets in the past. For example, earlier this year blogger Michelle Malkin's video about rapper Akon was erroneously taken down from YouTube after Universal Music Group (UMG) claimed copyright infringement. In that case, two excerpts from Akon music videos were embedded in a longer commentary about the rap star. Although UMG ultimately admitted its mistake, automated content filtering raises the possibility that commentaries like this might be blocked preemptively in the future.

With cases like this one in mind, "Fair Use Principles for User-Generated Content" describes six steps that service providers and copyright owners should take to minimize damage to fair use during copyright enforcement efforts. One key principle is "three strikes before blocking" -- verifying that the video matches the video of a copyrighted work, that the audio matches the audio of the same work, and that nearly all of the clip is comprised of that single work. In addition, if a video is blocked by a content filter, the creator should be given an opportunity to dispute the filter's determination.

The report also includes a "test suite" of sample videos that video and software engineers can use to test whether their automated filtering technologies are taking proper account of fair use principles.

The report's concise and pragmatic recommendations are especially well timed. Commercial copyright owners and hosting providers are already discussing ways to implement fingerprinting technologies that would allow for automatic blocking or removal of video and audio content. Any organization considering implementing such technologies should read this report and download the sample videos. Determinations of fair use are far too subtle -- and important -- to be left to a software algorithm.

(Note: the Citizen Media Law Project is affiliated with the Berkman Center for Internet & Society.)

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