A Layman’s Guide to Copyright, Fair Use, and the DMCA Takedown System

Oh no
It’s been an intellectual property filled few weeks, as we’ve seen a lot of “The World is on Fire” headlines stemming from the Fine Brother’s REACT trademark, to many YouTube celebrities speaking out against the abused DMCA takedown system. What I’ve seen more than anything, though, is a lot of bad law in each article, video, or comment on the matter. I’m going to do my best to answer the most popular questions many of you have, as well as give a quick run-through of how this process actually works. The most common questions/comments I’ve received:
What is a Copyright?
Really quickly, a copyright is what protects your actual assets. This can be your artwork, your music, your videos, etc. What is does not cover, on the other hand, is your actual channel names or your “brand.” That is protected by trademarks, and the difference is important, as the DMCA takedown procedure applies only to copyright.
What is a DMCA Takedown?
The DMCA is the shortened title of the Digital Millennium Copyright Act, an American piece of law that has, among many other things, a safe harbor provision for hosts who do not provide content themselves. Despite it’s currently abused atmosphere, the law was actually put in place to help content creators and hosts.
Since it would be impossible for YouTube to police all user-uploaded content themselves (they get about 7 days of footage each hour from what I last read), it would be unfair to make YouTube liable for infringing material on their site. Traditionally, if there was infringement on a website, that website was liable, and that would absolutely bankrupt and put out of business any platform like YouTube. So the DMCA created the following system:

  • If someone alleges infringement in a video on YouTube (or on a user generated map in a game, or a user uploaded song on SoundCloud, whatever), then YouTube has to take down that video immediately.
  • The process cannot be difficult to accomplish, and should preferably be automated, so the video is taken down instantly upon notification. There can be no appeal process prior to the takedown, and YouTube is not in a position to look at the validity of each take down notice because of the time constraint put on them.
  • Only if this process is followed exactly will a liability shield exist for YouTube. If they review it first, or have any form of appeal process before the takedown, they are liable along with the infringer. YouTube is not going to risk that for anyone except their very top earners.

That seems entirely unfair. What’s to stop people sending frivolous takedowns?
The truth of the matter is that, for a very long time, intellectual property law has been a land for kings. If you didn’t have very deep pockets, no one took you seriously, because most IP litigation will run you over a hundred thousand dollars, easy. Then we had the internet, which basically jumped in the other direction and decided no one owned anything.
Now, all these years later, we have a clumsy set of laws trying to find a happy middle ground for content creators to be protected, website hosts to stay in business, and IP thieves to be knocked down. In theory, this was a great system: Make an automated takedown system that lets IP holders protect themselves and content creators stop thieves. What the law did not take into account is that a lot of people are jerks, and a lot of people will abuse an automated system.
So we have seen takedowns to silence negative reviews, to stop competition, and to ignore legitimate fair use. That last one, “fair use,” is one of the most misunderstood terms online.
Okay, so what is fair use?
First and foremost, fair use is a defense, not a right. That means nothing is fair use until a judge says it is, and to get a judge to decide that will cost more than is in your bank account. Fair use is a factor test that examines what you are using it for, if you charge, how much of the original IP you are using, and a few other items that all add up together to the decision. So, despite what you read everywhere, IT IS NOT AUTOMATICALLY FAIR USE BECAUSE YOU DON’T CHARGE.
Well surely my video is fair use, right? I used their content, sure, but I added things to make it mine.
Okay, but did you add enough? That’s the major question. Intellectual property law has two terms that should be in everyone’s repertoire by now. “Derivative,” and “Transformative.” Derivative works are works that are substantially similar, or heavily based off an original idea. Your fan art picture of Cloud from FF7 is derivative, as are a ton of the videos claiming to be fair use right now that just rely on the original IP to be valuable. Derivative works are infringing, and since they are infringing, they are being properly taken down under the DMCA. No pity from me there.
Transformative, on the other hand, means you’ve changed, added, deleted, or altered enough to the original IP that it has transformed into something new. An example I always liked was Michael Myers from Halloween being inspired by Jason from Friday the 13th (or the other way around, I forget). Sure, both are serial killers who wear masks and walk slowly towards their victims, but enough was changed that Mikey boy transformed into something new entirely. You don’t look at one and see the other. They are different, and that’s okay under the law.
So isn’t my [insert genre of video] transformative? I talked over their video, added my webcam in the bottom left corner, and a bunch of other things.
The true answer? We don’t know yet! Fair use, again, is a defense that has to be tested in court, and as of now we don’t know where the line is with the internet. “Let’s Play” videos are incredibly popular and will one day, in my opinion, be the test case. Sure, you are adding commentary and showing yourself on camera, but at the end of the day you are just using someone else’s IP as the root of your video. So have you added enough? At what point does a video become transformative? I don’t know, but I promise it’s not up to YouTube to decide.
Nintendo has been clear they control what’s in Nintendo Let’s Play videos, and so far they haven’t been proven wrong. The great T.L. Taylor was the first person to try and convince me all of these video genres are transformative, and with each passing day I’m tending to agree with her more and more. That said, I don’t get to make the law either.
Well that didn’t help. Can we make our videos or not?
I’ll say this: More is better. That means the more you add to a video, the less likely you are to be taken down. Don’t just stream a game or someone else’s video and occasionally talk over it. Add in your own content along the lines of what a channel like H3H3productions does. If I had to bet my firm, I’d bet those videos are fair use, and a good guide line of what’s “enough” changes. They don’t just show another video in its entirety and riff on it. They add their own special sauce, cut away, show things out of order. It’s not just a replacement for the original. And it’s much more transformative than many I see on YouTube.  You aren’t clicking on their videos to see the video they are riffing on; you’re clicking to see them. The same isn’t true when you just show someone else’s video start to finish and overlay some audio jokes. Following me?
So can’t the companies issuing overreaching takedowns get in trouble? Isn’t there any recourse for us that are getting abused?
First, there are two kinds of takedowns on YouTube (within copyright). The first is manual, where an IP holder sees an infringing work, reports it, and has it taken down. The second is automatic, done by the ContentID system, which is a system in place to scour all of the videos on YouTube and compare them to original songs or videos. So if you have background music that you aren’t licensed to use, or if your video has a lot of unedited clips from elsewhere, you are a prime candidate for one of these automatic takedowns.
If you get a takedown, you can then appeal it. I recommend using an attorney, of course, but you’re able to try and argue yourself if you can’t afford one. Usually, YouTube will give you the contact information of whoever issued the takedown and you can reach out and try to get them to lift their ban. It is nearly impossible and very unlikely that YouTube will intervene themselves and lift a ban, except for only the most egregious cases. Why? Because they don’t want to risk liability for you. It’s a bad business move.
Other than that, you really aren’t in a good position to fight things, as terrible as that seems.
But what about the court decision saying IP holders have to consider fair use before they issue a takedown!
That doesn’t change YouTube’s responsibility or process by any means. They don’t have to consider fair use, the one issuing the takedown does. So unless you’re saving up for a lawsuit against the people sending these things out, I wouldn’t recommend relying on that.
So that’s it then? There’s no repercussions for people abusing this system?
When you file a takedown, you do so “under penalty of perjury” and risk real jail time and criminal charges if you’re sending them frivolously. That said, I think we’re more likely to see Half-Life 3 before we see anyone go to jail over a false takedown. Still, it is illegal, and actionable on the civil side as well, so it’s not unreasonable to believe a good case is put together and someone pays a large sum of money very soon.
Truth be told, a lot of people who don’t deserve to be burned are going to continue to be abused. There is no quick fix here. It’s an actual law that needs an amendment, and that won’t happen tomorrow. It’s also not just an American problem, as most jurisdictions operate under similar procedures. On the flip side, a LOT of what the internet considers fair use is not fair use, and that’s what this system is here to stop. The DMCA is not bad on its face, and it protects many of my clients every single day from having their hard work stolen and ripped off. So until we get some solid case law or a solid law change, I’d do your best to stay as far on the transformative side of things as possible.
Until then, my law firm is dedicated to helping those who receive frivolous take-downs. While I don’t have the ability (or time) to help everyone pro bono, I am working closely with a handful of other attorneys to make this a cheap and streamlined process and no longer let the big guys win when they don’t deserve it. Please, don’t hesitate to reach out at rmorrison@www.leelawservices.com.