Fair Use vs. Copyright – Shooting Down Pictures

“When the history of intellectual property law is written, January 12, 2009 should be marked as a decisive moment. It was the day that my friend, fellow House Next Door contributor and sometime filmmaking partner Kevin B. Lee saw his entire archive of critical video essays deleted by YouTube on grounds that his work violated copyright.”

That’s the opening paragraph of Matt Zoller Seitz’s outstanding post at The House Next Door on Tuesday. On Monday, astute critic Kevin B. Lee of Shooting Down Pictures had his entire YouTube account deleted, along with the hundreds of critical video essays hosted there, due to claims of copyright violation.

I won’t go into all the details because Matt does an excellent job of outlining both the contributions Kevin has made to film criticism via his video essays and the need for a distinction between fair use and copyright violation. I won’t claim to have always been on the right side of copyright law, but the sorts of things that Kevin and Matt (and Jonathan Lapper, and Jim Emerson, and others) are doing with copyrighted content clearly fall into the category of fair use quotation for critical and educational purposes.

Apparently, YouTube is now using digital watermarking to remove copyrighted videos (and audio tracks now, too) without any means of checking whether it’s a legitimate use of the material under fair use or a true copyright violation. Granted, YouTube is ginormous enough that such checking is probably logistically impossible. But cases like Kevin’s need to have attention brought to them, need to be talked about and discussed, and we need to come to some better formulation of copyright law that better defines and protects fair use.

To close back with Matt again:

“I fervently hope some brave, knowledgeable lawyer will see that there’s more at stake here than the ethics of ripping and posting scenes from movies, and make a test case of Kevin’s unconscionable treatment. The circumstances may seem mundane, but the implications are grim as can be. When individuals and governments permit corporations to dictate the terms by which their culture may be examined, the First Amendment becomes just another pile of words.” [my emphasis]

  • http://www.thehousenextdooronline.com Matt Zoller Seitz

    Hey, Jandy–

    Thanks so much for the kind words, and for supporting Kevin's rights.

    If you or anybody reading this wants to contribute something, your time would be most appreciated. Check out the comments thread on my post and you'll find a great one from a lawyer for the Electronic Frontier Foundation, which has done much outstanding work in this area of law. Apparently every three years the government considers granting exemptions to particular types of work “if it can be persuaded that DRM systems are blocking fair uses for a particular class of works (like DVDs).” The EFF is fighting not just illegal, harassing, legally groundless takedown orders, but also a little-discussed area of the law which considers breaking copy protection for any reason to be a crime in and of itself.

    Anybody who writes a letter to the copyright office on behalf of art like Kevin's can make a difference in this fight. See the comments thread for a complete list of relevant links.

    Thanks again!

    –MZS

  • http://www.the-frame.com/blog Jandy

    Matt,

    Thank you for writing such a thoughtful and well-worded post on the topic. I saw Kevin's posts when his videos were first blocked, then deleted, but you really captured the issue and the larger ramifications of it.

    I've long felt that the copy-protection portion of the DMCA is an incredible violation of fair use rights – I'm sure the big corporations would be plenty happy if fair use did cease to exist, but it is a right we have even under current copyright laws. Thank goodness for EFF and other organizations that fight to keep that right, and for people like you and Kevin who help us understand why it's important.

    Thank you for the comment and the link to Fred von Lohmann's comment with the information about contacting the copyright office about this issue.

  • http://strangecultureblog.com rc of strangecultureblog

    Jandy, I'm glad you posted this…I think that it certainly an important topic, and one of that will be a tricky area to regulate.

    i guess youtube was taking the safe route, but it's unfortunate because so many large companies like youtube, and blogs could easily decide that because you include a photo or a quote, or a sound clip or x, y, or z that it could potentially be copy-write infringement. that's dumb & unfortunate.

  • http://strangecultureblog.com rc of strangecultureblog

    Jandy, I'm glad you posted this…I think that it certainly an important topic, and one of that will be a tricky area to regulate.

    i guess youtube was taking the safe route, but it's unfortunate because so many large companies like youtube, and blogs could easily decide that because you include a photo or a quote, or a sound clip or x, y, or z that it could potentially be copy-write infringement. that's dumb & unfortunate.