FA+
Shop
The truth about #WTFU and Youtube....
9 years ago
I post this with the full knowledge that there will be SOME whiners out there who will not think things through before commenting. They will bitch and moan about how wrong I am because they don't want to face reality. They will shout down instead of debate, and continue to insist on focusing on the wrong problem. Some of them will have actually read what I have to say, most will have skipped it once they realize the angle I've taken.
So I am warning everyone in advance: I WILL BE HIDING ANY COMMENT THAT DOES NOT SEEK TO PROPERLY DEBATE THIS ISSUE. Insults, refusal to consider points brought up, etc. will be hidden on sight. Strong language is acceptable(I am never opposed to usage of swearing for added emphasis, after all), but outright insults are not.
Likewise, I will be hiding any comments that are nothing more than a "hell yeah" or anything along those lines. If you don't have anything to add to the discussion, just spread the information contained here. I'm not posting this to my watchers can stroke my ego. I will disable comments if either one becomes too much of an issue.
Questions about what I've said are okay, as well - I'm sure I won't be as clear as I'm going for in every area, so if you want something cleared up, just ask.
Anyway, on to the point.
Last week, Doug Walker, as the Nostalgia Critic, posted a video on Youtube lambasting the service and Hollywood for their lack of consideration to Fair Use - a protection from copyright infringement afforded to certain uses of copyrighted materials including parody, review, and satire.
In this video he also takes Youtube to task over how easy their takedown system is to abuse - something every Youtuber has been well aware of for over five years(way to be late to the party, Channel Awesome).
Unfortunately, every single aspect of his video either misinterprets the law, fails to understand the situation, or is just outright fucking WRONG.
Let's deal with outright wrong first.
1: SATIRE IS NOT FAIR USE. To Doug's credit, everything he lists(parody, review, education, satire) IS fair use with this sole exception. Satire has never been considered fair use because proper satire does not USE copyrighted material - it merely references it with various forms of blatancy.
Let's move on to misinterpreting the law.
2: FAIR USE IS NOT A RIGHT. Doug is not the first, nor will he be the last, to make this mistake, and it's an easy one to make since a smart copyright holder will consider the implications of fair sue protection before acting on a copyright. But the reality is that Fair Use is not a right - it is a courtroom defense against accusations of copyright infringement. It's only consideration outside of the courtroom is whether or not the creator of content using the copyrighted material would be likely to win if the copyright holder took them to court.
And lastly, and most significantly, failure to understand the situation.
3: NOSTALGIA CRITIC VIDEOS ARE NOT FAIR USE. The Nostalgia Critic -and the majority of Channel Awesome's videos- claim Fair Use by way of both parody and review. Unfortuantely, they fail at both; Parody requires a transformative effort on the work, and many a court case has found CA's style of parody does not qualify. They do not qualify as reviews either as the videos are not simple plot summaries paired with a personal opinion and/or analysis of the work's merits/failures. They are COMPLETE PLOT SUMMARIES with attempts at jokes - abridged riffing. They fall under the category of MST3K and Rifftrax, NOT Siskel and Ebert. MST3K had to acquire the rights to do what they did with the movies for a reason, and it's the same reason Rifftrax only provides the AUDIO TRACK they recorded instead of the movie. Like it or not, Nostalgia Critic videos ARE copyright infringement. Channel Awesome is run by a person who knows absolutely nothing about copyright laws. He has no legal counsel on hand, and he has utterly dismissed attempts by copyright experts to help him in the past. CA does what CA wants to do, and has been proven to outright lie in an effort to get what they want - even when telling the truth would have been more beneficial(IE, the Indegogo campaign).
4: COPYRIGHT HOLDERS MUST ENFORCE THEIR COPYRIGHT OR LOSE IT. This is the most bullshit aspect of the entire matter, to be sure - if there is ANY uncertainty over Fair Use protection, the holder of a copyright is legally obligated to invoke their right as the holder of that copyright. If they do not, they can lose the copyright. As ridiculous as it is, the copyright holder HAS to be abusive if they want to keep it.
5: YOUTUBE CANNOT DO ANYTHING. As many are aware, Youtube exists under a DMCA provision widely known as "safe harbor." Put simply, this means that as long as they cooperate in matters of dealing with copyright infringement, they are protected from any prosecution -criminal or civil- resulting from infringing activity on their site. This is why their takedown system as broken and prone to abuse as it is - the moment they implement a system that is IMPOSSIBLE to abuse, they are no longer under safe harbor because such a system WILL at some point end up saving a copyright infringer, and the copyright holders will IMMEDIATELY file suit. Youtube would be gone.
6: IT IS NOT YOUTUBE'S JOB TO DO ANYTHING. Youtube's job is not to protect it's userbase, it's to make sure a platform is available so a userbase CAN exist. It is the job of that userbase to protect their own content - it is, after all, the USER'S content, not Youtube's.
Okay, well, with that all said, let's cover the TRULY important things. How do we REALLY deal with this? Well, it's quite simple:
1: Get permission. In 99% of all cases, when asked properly, copyright holders will actually APPROVE the use of content in the manenr Nostalgia critic and similar content creators use said content. Much has been made of how bullshit "paid in exposure" is, but I did not address that because many companies are okay with exactly that notion so long as you seek approval FIRST. Copyright holders have the authority to grant ANY use of their copyright, even if it would otherwise be infringing.
2: Stop attacking Youtube. They are beholden to the laws of the land, nothing more, nothing less. They will change when the LAW changes, because that's the only way they CAN change.
3: Attack the claimants. As I said, it is up to the user to protect their own content. This means that when someone files a false claim, address the claimant, not Youtube.
4: When someone files a false claim, SUE THEM. Put your money where your mouth is. This is the only way change will ever be effected. The people who file these claims do NOT want to go to court - they will almost always settle out of court if you have ANYTHING resembling a fair use defense. They do not want it to go to a decision unless there is absolutely no conceivable defense. Under the DMCA, YOU HAVE THE RIGHT TO DEFEND YOURSELF. Invoke it. Don't stop if they withdraw the claim - continue to push the issue. Make them afraid to file a claim without performing all due diligence.
5: Lobby Congress to change the copyright laws. Nothing major is going to change under the DMCA. While it may be better than shit like SOPA, that's only because it has legal recourse. The DMCA is a horribly flawed law, but as long as it is the law we smut abide by it. The only way to change things is to change the law. Pressure Congress en masse to fix copyright law.
There's your reality check. You want to make a difference? Don't follow the advice of Channel Awesome. They're fraudsters, copyright infringers, and misogynists(just ask Obscurus Lupa). Following the advice of Channel Awesome is to run into a brick wall. Their #WTFU hashtag will never go anywhere simply because it's based in bullshit. The Nostalgia Critic video is about they WANT, not what things ARE.
Fight a REAL fight, not Channel Awesome's load of crap.
So I am warning everyone in advance: I WILL BE HIDING ANY COMMENT THAT DOES NOT SEEK TO PROPERLY DEBATE THIS ISSUE. Insults, refusal to consider points brought up, etc. will be hidden on sight. Strong language is acceptable(I am never opposed to usage of swearing for added emphasis, after all), but outright insults are not.
Likewise, I will be hiding any comments that are nothing more than a "hell yeah" or anything along those lines. If you don't have anything to add to the discussion, just spread the information contained here. I'm not posting this to my watchers can stroke my ego. I will disable comments if either one becomes too much of an issue.
Questions about what I've said are okay, as well - I'm sure I won't be as clear as I'm going for in every area, so if you want something cleared up, just ask.
Anyway, on to the point.
Last week, Doug Walker, as the Nostalgia Critic, posted a video on Youtube lambasting the service and Hollywood for their lack of consideration to Fair Use - a protection from copyright infringement afforded to certain uses of copyrighted materials including parody, review, and satire.
In this video he also takes Youtube to task over how easy their takedown system is to abuse - something every Youtuber has been well aware of for over five years(way to be late to the party, Channel Awesome).
Unfortunately, every single aspect of his video either misinterprets the law, fails to understand the situation, or is just outright fucking WRONG.
Let's deal with outright wrong first.
1: SATIRE IS NOT FAIR USE. To Doug's credit, everything he lists(parody, review, education, satire) IS fair use with this sole exception. Satire has never been considered fair use because proper satire does not USE copyrighted material - it merely references it with various forms of blatancy.
Let's move on to misinterpreting the law.
2: FAIR USE IS NOT A RIGHT. Doug is not the first, nor will he be the last, to make this mistake, and it's an easy one to make since a smart copyright holder will consider the implications of fair sue protection before acting on a copyright. But the reality is that Fair Use is not a right - it is a courtroom defense against accusations of copyright infringement. It's only consideration outside of the courtroom is whether or not the creator of content using the copyrighted material would be likely to win if the copyright holder took them to court.
And lastly, and most significantly, failure to understand the situation.
3: NOSTALGIA CRITIC VIDEOS ARE NOT FAIR USE. The Nostalgia Critic -and the majority of Channel Awesome's videos- claim Fair Use by way of both parody and review. Unfortuantely, they fail at both; Parody requires a transformative effort on the work, and many a court case has found CA's style of parody does not qualify. They do not qualify as reviews either as the videos are not simple plot summaries paired with a personal opinion and/or analysis of the work's merits/failures. They are COMPLETE PLOT SUMMARIES with attempts at jokes - abridged riffing. They fall under the category of MST3K and Rifftrax, NOT Siskel and Ebert. MST3K had to acquire the rights to do what they did with the movies for a reason, and it's the same reason Rifftrax only provides the AUDIO TRACK they recorded instead of the movie. Like it or not, Nostalgia Critic videos ARE copyright infringement. Channel Awesome is run by a person who knows absolutely nothing about copyright laws. He has no legal counsel on hand, and he has utterly dismissed attempts by copyright experts to help him in the past. CA does what CA wants to do, and has been proven to outright lie in an effort to get what they want - even when telling the truth would have been more beneficial(IE, the Indegogo campaign).
4: COPYRIGHT HOLDERS MUST ENFORCE THEIR COPYRIGHT OR LOSE IT. This is the most bullshit aspect of the entire matter, to be sure - if there is ANY uncertainty over Fair Use protection, the holder of a copyright is legally obligated to invoke their right as the holder of that copyright. If they do not, they can lose the copyright. As ridiculous as it is, the copyright holder HAS to be abusive if they want to keep it.
5: YOUTUBE CANNOT DO ANYTHING. As many are aware, Youtube exists under a DMCA provision widely known as "safe harbor." Put simply, this means that as long as they cooperate in matters of dealing with copyright infringement, they are protected from any prosecution -criminal or civil- resulting from infringing activity on their site. This is why their takedown system as broken and prone to abuse as it is - the moment they implement a system that is IMPOSSIBLE to abuse, they are no longer under safe harbor because such a system WILL at some point end up saving a copyright infringer, and the copyright holders will IMMEDIATELY file suit. Youtube would be gone.
6: IT IS NOT YOUTUBE'S JOB TO DO ANYTHING. Youtube's job is not to protect it's userbase, it's to make sure a platform is available so a userbase CAN exist. It is the job of that userbase to protect their own content - it is, after all, the USER'S content, not Youtube's.
Okay, well, with that all said, let's cover the TRULY important things. How do we REALLY deal with this? Well, it's quite simple:
1: Get permission. In 99% of all cases, when asked properly, copyright holders will actually APPROVE the use of content in the manenr Nostalgia critic and similar content creators use said content. Much has been made of how bullshit "paid in exposure" is, but I did not address that because many companies are okay with exactly that notion so long as you seek approval FIRST. Copyright holders have the authority to grant ANY use of their copyright, even if it would otherwise be infringing.
2: Stop attacking Youtube. They are beholden to the laws of the land, nothing more, nothing less. They will change when the LAW changes, because that's the only way they CAN change.
3: Attack the claimants. As I said, it is up to the user to protect their own content. This means that when someone files a false claim, address the claimant, not Youtube.
4: When someone files a false claim, SUE THEM. Put your money where your mouth is. This is the only way change will ever be effected. The people who file these claims do NOT want to go to court - they will almost always settle out of court if you have ANYTHING resembling a fair use defense. They do not want it to go to a decision unless there is absolutely no conceivable defense. Under the DMCA, YOU HAVE THE RIGHT TO DEFEND YOURSELF. Invoke it. Don't stop if they withdraw the claim - continue to push the issue. Make them afraid to file a claim without performing all due diligence.
5: Lobby Congress to change the copyright laws. Nothing major is going to change under the DMCA. While it may be better than shit like SOPA, that's only because it has legal recourse. The DMCA is a horribly flawed law, but as long as it is the law we smut abide by it. The only way to change things is to change the law. Pressure Congress en masse to fix copyright law.
There's your reality check. You want to make a difference? Don't follow the advice of Channel Awesome. They're fraudsters, copyright infringers, and misogynists(just ask Obscurus Lupa). Following the advice of Channel Awesome is to run into a brick wall. Their #WTFU hashtag will never go anywhere simply because it's based in bullshit. The Nostalgia Critic video is about they WANT, not what things ARE.
Fight a REAL fight, not Channel Awesome's load of crap.
Though I myself have a bit of issue with the last #4:
Sueing a copyright holder can be pretty hard on the grounds that you can't put your money where your mouth is if you don't have enough money to afford the legal fees.
Small-time independant artists have a difficult time with copyright law on BOTH ends of these arguments.
Oftentimes, a case in copyright can go the same way as any other claim: It bounces back and forth in court until one side runs out of money and the other thus wins by default. :(
A shame, either way, I really liked some of his work.
Most people end up in trouble for thing they shouldn't simply because they don't know what's available to them. They give up rather than fight when they should fight.
First, you state that satire is not fair use.
My response: Satire can be fair use.
https://www.google.com/search?q=is+.....18.psVLmxtHJz0
"Satire is NOT considered Fair Use when it copies an earlier work."
Just because Satire can be found to not be fair use, does not mean that no satire is ever fair use. Whether or not a satire is fair use is something that must be found in a court of law or settled between parties.
Why is this important? Because any system that permits copyright holders to take action against satire creations, without due process, is bad. There is no punishment for a copyright holder filing a false claim, which is illegal.
GradeAUnderA has a great video on this and more, related topics:
https://www.youtube.com/watch?v=vjXNvLDkDTA
and
https://www.youtube.com/watch?v=sF2tCY281Rk
Second, you state that fair use is not a right.
You are correct, but you are also wrong. I do not believe Doug or anyone is claiming that fair use is a right. I believe that everyone understands that Fair Use is a protection, and YouTube is not respecting that protection. YouTube says in their own required-to-agree-by rules that fair use must be respected, but it does nothing to punish those who do not respect it.
Appropriate video related to this: https://www.youtube.com/watch?v=d9mTOq6mP2I
Third, while I am not a lawyer, I am unsure if you are either. The claim that nostalgia critic videos are not fair use is not something that anyone outside of a court of law should decide. We can have our personal opinions, but if someone is making the claim that someone should NOT be protected by Fair Use, that's a very serious claim - so serious, that by default, everyone should be protected until PROVEN they should not be protected.
Imagine a world where you had to request fair use protection and if you did not requested it, or were rejected, you were not protected. Anyone who makes a claim against you is assumed to be correct and you have zero protection against false claims or malicious actions.
Now, this might simply be a philosophical difference. The ideology of "Better to let a criminal walk free than to jail an innocent man" vs "Better to jail an innocent man than to risk a criminal walk free."
We agree on point four. It is bullshit.
Fifth, I believe this is actually not on topic. We are not talking about DMCA protections to YouTube. We are talking about YouTube not enforcing their own stated policies and requirements. The system does not have to allow abuse - it only has to meet the requirement of 'good faith attempt'.
Sixth point: Again, I believe you misunderstand the issue. YouTube has placed rules and guidelines that it itself is not following.
Now on to the other set of numbers:
1: This is quite nicely refuted by https://www.youtube.com/watch?v=d9mTOq6mP2I because getting permission does nothing to stop people who do not own the copyright from filing a claim against you.
Secondly, permission is something that should not be required, because no-one ever is going to give permission to a negative review. Freedom of speech and fair use laws were created for a reason.
2: Youtube deserves this criticism because it is being disingenuous.
3: There is no way to attack the claimants. Again, there is no punishment or consequence. Coupled with the fact that unrelated third parties can also file a claim, and have absolutely no risk by doing so... then it is YouTube that should be attacked for setting up such a system.
4: See point 3, because on TOP OF having no risk, the third party does not need to provide any information whatsoever. They can be ANONYMOUS.
Also because it costs extreme amounts of money to sue. Rigged system.
5: AGREED VERY MUCH. Get these shitty laws changed.
"Fifth, I believe this is actually not on topic. We are not talking about DMCA protections to YouTube. We are talking about YouTube not enforcing their own stated policies and requirements. The system does not have to allow abuse - it only has to meet the requirement of 'good faith attempt'."
The problem is, a "good faith attempt" is not something you can narrowly define. Anything sufficient to satisfy the copyright holders(and the courts) is going to be wide open for abuse.
"Sixth point: Again, I believe you misunderstand the issue. YouTube has placed rules and guidelines that it itself is not following."
This is not true. Youtube follows it's guidelines to the letter. Claims that they don't are people who feel the spirit of those regulations has been violated, but Youtube can only apply the letter of the rule if they want to stay safe.
(also, Jim Sterling is not a trustworthy source on this matter. He is known for making the same sorts of false claims regarding laws as many a proven copyright violater have in the past - he is saying what he WANTS thigns to be like, not what they ARE)
"1: This is quite nicely refuted by https://www.youtube.com/watch?v=d9mTOq6mP2I because getting permission does nothing to stop people who do not own the copyright from filing a claim against you."
So? I think you missed the point I was making: The fact that others who don't own the copyright can file claim is an unavoidable consequence of the rules and regulations.
"Secondly, permission is something that should not be required, because no-one ever is going to give permission to a negative review."
False. They do it all the time - professional film critics are given explicit permission to do their reviews and use the content, regardless of whether or not it is positive or not. As I already noted, in the overwhelming majority of cases, permission is granted when sought through proper means.
"Youtube deserves this criticism because it is being disingenuous. "
They are only doing what they must to protect themselves. Noting more, nothing less. They should not be criticized for it. (though that does not mean one does not have the right to do so if they wish to)
"There is no way to attack the claimants. Again, there is no punishment or consequence. Coupled with the fact that unrelated third parties can also file a claim, and have absolutely no risk by doing so... then it is YouTube that should be attacked for setting up such a system."
Yes there is. If someone files a false claim and the wronged party wishes to pursue them in court, Youtube is required to provide any information about the claimant they have. From there, is it a simple matter of a few subpoenas(of types repeatedly upheld in court) to find the claimant, and proceed from there.
"See point 3, because on TOP OF having no risk, the third party does not need to provide any information whatsoever. They can be ANONYMOUS."
There is no such thing as a truly anonymous claim. False claimants are easy to identify as long as you know what channels to go through - and there are PLENTY of sorceresses to help along the way.
"Also because it costs extreme amounts of money to sue. Rigged system."
Actually, it doesn't cost anywhere near as much as many think. When a person has been wronged, pro bono attorneys of adequate knowledge and experience are very easy to find.
(also, Jim Sterling is NOT a reliable source on this matter - he is known for making the same false claims many a court-proven copyright violater have. He explains things as he WANTS them to be, not as they ARE, and falsely presents them as fact)
https://www.youtube.com/watch?v=8JLbKL6i9eM
Legal issues are not a cut-and-paste matter, particularly in a country where you can literally sue over anything the law does not expressly forbid you from suing over.
That's when I cut it off. Now you're resorting to insults because I didn't agree to go along with your dismissal of expert information.
This discussion is over. Do not attempt to drag it out further.