[rickety-gherkin]

A couple things I'm confused about here. Was NYU monetizing this video? Is that where the grounds for dispute are? If that's true, would demonetizing the video clear out the disputes? Even though this clearly falls under fair use, it's still something that was unclear to me.

I'm surprised there's not a serious case against Youtube/Google for denying people the right to Fair Use. Is this because people don't have to use Youtube? Is this in the Youtube contract somewhere? Is it because Fair Use doesn't work like that? If you provide a platform like Youtube for people to use, are you not held legally responsible for protecting Fair Use laws the same way you'd be held liable for copyright infringement if you didn't give corporations/people the ability to dispute?

If Youtube allowed all videos to exist regardless of copyright infringement, and didn't lay out any paths for claims, would they be in legal trouble? Is this not the same as automatically removing obvious Fair Use content?

[deckar01]

A copyright violation does not just remove your right to monetize the content, it also removes your right to determine if the content is monetized. The copyright holders who claimed infringement can decide to allow the content and force it to be monetized for their profit.

[lathiat]

It's worth noting that while this is the most common mechanism employed by youtube.. it is possible with the same system to just remove the right to have the video (or at least that segment) published at all.

But the general business youtube has pursued, which in fairness, is partly to make it possible for people to publish videos with such works in the first place, is that most copyright holders will allow the work to be use but instead the entire video (regardless of how significant that small copyright portion was) is monetized to the 100% benefit of the copyright holder.

There are some plusses to this, in that it's easy (and free) to actually publish a video containing copyrighted works. And that in general by working with all the publishers to do this, it has in theory prevented them from chasing YouTube harder to disallow any such content.

The downside is the entire system is one sided and the review and oversight process is clearly lacking. I could understand a little how this happens with small channels... but I frequently see channels with hundreds of thousands of subscribers (who are typically full time youtubers) and sometimes even millions.. get the same lack of oversight to their claims.

To me it's crazy that the "3 strikes" rule applies just as equally to accidental and incorrect violations on an otherwise very active and largely original channel (that posts 1 video a day making it very easy to accidentally or incorrectly get recognised as having a violation) as it does to a 1 video channel with no subscribers that is actually violating copyright. It boggles the mind that there is no scale applied.

And time and time again I witness channels I watch have this same process of having to somehow reach out to someone at youtube by yelling on twitter or hacker news and then problems just "go away". Even those with millions of subscribers that have internal youtube partner managers.. often those channels still can't solve these problems. It's madness.

[jcranmer]

Fair use is an affirmative defense against copyright infringement. Broadly speaking, this means that it is legally irrelevant until you are accused in court of copyright infringement, at which point it becomes relevant.

What happens in Youtube is probably covered by the terms of service (like most people, I haven't actually read it in detail, so I don't know the specifics of how it will play out, but the idea should be generally correct). Terms of service is basically a contract, and contract law totally lets you prohibit one party from doing things that are otherwise legal. So fair use doesn't matter, unless it's written into the contract, which it almost certainly isn't.

The other dimension to bring up is DMCA. This absolves Google of any copyright infringement so long as they expeditiously respond to takedown notices and forwards them to the respective user. The user can object, at which point the original copyright owner must file a lawsuit. Only in the lawsuit will fair use be considered (this is one of the criticisms of DMCA). However, the ContentID system at play in Youtube is not a DMCA takedown system; it is completely independent, and thus DMCA does not apply here in the slightest.

[gnopgnip]

> Fair use is an affirmative defense against copyright infringement.

This is a misnomer.

Fair use is an authorized use, and consequently is “distinct from affirmative defenses where a use infringes a copyright, but there is no liability due to a valid excuse, e.g., misuse of a copyright.” Id. Lenz, 815 F.3d at 1152