YouTube, Copyright Law, and Political Speech

Radley Balko has an interesting post sparked by CBS’ forcing YouTube to take down a short cllip from a 40-odd-year-old episode of the “Andy Griffith Show” wherein “Sheriff Taylor explains to Opie that it’s illegal to eavesdrop on conversations between criminal defendants and their lawyers, and how in a free society any conviction resulting from such tactics does more harm than good.”

The Mayberry video wasn’t posted so users could “steal” clips from the Andy Griffith Show that they otherwise would have purchased. Its presence on YouTube wasn’t going to prevent anyone who would have otherwise bought the DVD of the show from doing so. Rather, it was posted to make a political point; either to allude to a time when civil liberties were more than mere formalities, or to poke fun of those naive enough to actually believe what Andy Taylor was lecturing Opie about.

Quite so. And it seems quite reasonable that use of short excerpts for such a purpose would constitute “fair use.” The problem, of course, is that YouTube allows doing so on mass scale and is a commercial enterprise.

I’m less convinced by Radley’s assertion that “a pretty substantial portion of the copyrighted material uploaded to YouTube serves the same or a similar purpose.” My guess is that most of it is for entertainment purposes. Even things with political speech implications, say the recent “Nigger Guy” episode of “South Park” or a political satire on “Saturday Night Live,” are mostly for entertainment purposes and, presumably, makes it harder for Comedy Central or NBC to profit from selling DVDs, downloadable clips, showing re-runs, and the like.

Not all that long ago, if you missed a show, you had to wait until the re-runs. Then the VCR came along, followed by TiVo and other DVRs, which allowed people to not only time shift and fast forward through commercials but archive shows for watching again at their leisure. Soon, people figured out that they could pass these tapes around to friends or mail them to people they knew.

Now, though, an episode can be shared with the world almost instantly. That’s great for end users but not so great for copyright holders. If some segment on a moribund show like SNL generates a buzz, NBC used to be able to promote that and then re-run it as a “classic edition” or some such, selling commercial time again. Now, though, it’ll go viral in a day or two and within a couple weeks, everyone will have seen it on their computer screens. NBC clearly takes a revenue loss on the re-sale side.

Then again, if enough clips from SNL get a second life on YouTube, people might start watching (or at least TiVo’ing) the show again. Still, that’s a business decision NBC has a right to make.

Regardless, the Internet generally and YouTube in particular clearly demand a major re-write of copyright laws to take into account the public’s expectation and demand for immediate information accessibility. There has to be a way to balance a content producer’s right to maximize profits from his creation while allowing people to share snippets of it.

It’s not clear, for example, what “Fair Use” means on blogs. How much of the text can one excerpt? How much commentary is required for it to be “transformative”? Can photographs be used? If so, what are the limitations?

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James Joyner
About James Joyner
James Joyner is Professor and Department Head of Security Studies at Marine Corps University's Command and Staff College and a nonresident senior fellow at the Scowcroft Center for Strategy and Security at the Atlantic Council. He's a former Army officer and Desert Storm vet. Views expressed here are his own. Follow James on Twitter @DrJJoyner.

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  2. Bithead says:

    The issue is where the line gets drawn.

    Section 605 of the old Federal Commuunications act of 1932 if taken literally, made it a federal offence to tell your wife what your mother in law just said on the phone, as an example.

    Of course that the law was never enforced that way, is exactly the point; Laws seldom speak accurately to the future where technology is involved, because as time goes on, concepts of technology tend to far outstrip what is envisioned, and eventually operation in practice has no bearing on the law, and versa-visa.

  3. Dave Schuler says:

    To me this particular case sounds like it falls well under “Fair Use”. The purpose of the clip is within the conventional interpretation, it’s a short clip, it looks to me as though it meets the other criteria.

    IMO what should happen in this case is that Google should fight CBS on this one. I suspect what will actually happen is that it will be bundled within general negotiations between copyright holders and YouTube and that we’ll all lose from the outcome.

  4. James Joyner says:

    will be bundled within general negotiations between copyright holders and YouTube and that we’ll all lose from the outcome.

    Yup. I get copyright violation notices from time-to-time, especially on the Hollywood site. Since I’m doing commentary, I think I’m likely within fair use. Obviously, though, I can’t risk a lawsuit–the process is the punishment, after all–and they win by default.