OK,
so, here's the deal. Copyright law off the internet has had a
long time to develop and mature. The internet is still young and
we have a long way to go in establishing firm law that everybody can
generally agree is fair. Napster just hung in a gray legal limbo
for eons because the issue of sharing digital information isn't what
our posession laws were designed for. Napster said, "Here's a
place the world can share information, and what everyone does with it
is their business." The problem was that they profited from
people using it for illegal purposes. At the opposite end, YouTube is here to promote legal file sharing.
However, they uphold that with a firmness that begins to drag on
the rights of the users. It's like wearing twenty condoms when
three or four will do. Napster was an illegal party, and YouTube
is a legal party, except the mods are just a little bit too strict.
YouTubers want to upload anything. The music and film industry want to protect everything, and YouTube is the referee that doesn't really give a damn as long as nobody sets their building on fire. All of us,
no matter who we are, just plain want our way, which makes it lose lose
lose. It's time for all of us to get together and work together
to end this absurd bickering and live in peace. The problem,
though, is that the users don't have any legal influence. We
don't have millions of dollars or stadiums of lawyers--nobody fighting
for us. The only way to stand up for our rights is to get together and organize, because only then can your average Joe stand up for his rights, if no one else is bothering. Not "Let's go start some trouble," but simply, "Let's stand up for a right to a legal defense just like everybody else."
Every other post on YouTube boards asks:
- Why has my video been taken down?
- Why can't I re-cut my favorite anime to my favorite rock band?
- Why can't I sit and sing a lousy webcam cover for my friends?
- Why can't I sit and sing a killer webcam cover for my friends?
- Why can't I make a fan trailer which tributes my favorite director?
- Why can't I post clips of my favorite shows and movies?
- Why can't I make a lesson for people to learn their favorite songs?
- Why can't my friends and I skateboard around to Green Day?
- Why can't my friends and I hopscotch to Korn?
And there are two equally good answers:
1. Because we're a bunch of greedy bastards who don't consider others' feelings, and
2. Because everyone else are greedy bastards who don't consider our feelings.
Not rights--yes, those too--but primarily, feelings. In an area devoid of law, our morality is what drives our actions. Then the law. The spirit of copyright law is to eschew intellectual theft and hurtful actions toward other people's artwork. It
wasn't designed for questions like: can I sing a webcam cover of a song
I like and email it around to my fans and friends? Can I take my
personal time and tribute my favorite stuff in a nonprofit way?
Every FAQ under the sun will tell you that "Well, I'm not making
money, so it's okay" is no excuse. The truth is it isn't sufficient
reason, but it's a big factor that the courts take into
consideration, and in the case of all of YouTube (excluding the issue
of the partner program for now), it's an exponentially important factor.
Copyright
law wasn't designed to make it illegal to sit around at a party and
play a song you took the time to learn. It wasn't designed to
make it taboo for a few film student nerds to shoot a fan trailer of
Star Wars and play it at a sci-fi convention. It wasn't designed
to diminish the nich of amature parody by making it illegal to poke fun
at a song or theme. When the law doesn't make sense, you revise
it. In the spirit of the idea of re-defining the law to make it
make more sense, the Fair Use Act of 2007
was introduced to support limited use of copyright material for things
like education, commentary, and parody. Tweaking copyright
law to allow what makes the most moral sense. But Fair Use doesn't extend to online nonprofit digital parties.
Many of the above uses fall in the smack dead middle of the Spirit of Fair Use,
if not the details of it. The idea that copyright law doesn't
apply to some cases. Now the partner program does profit, and
certainly that falls into a more questionable legal area. But for
normal YouTube use, most of the above listed uses have positive or neutral influence on the owners'
art. Not to mention many are as low key as emailing yourself
singing a song to your friends. Where a video gets a lot of hits,
it's still mostly a fun, nonprofit, creative, and promotional use of
the original work. Taking your
personal time to create art that honors--or at least is a non-influence
to--your favorite stuff, for fun and nonprofit purposes, is outside the
ballpark of what copyright law was designed for.
Even the FBI warnings at the start of every single home movie--whether to prevent minor or major abuse--are designed to prevent a negative influence
on the people who worked hard to bring you that work of art. If
you distribute the exact material for free, that's hurts the owner.
If you take your time and create art which uses that material to
tribute it in a nonprofit manner, that benefits
the original work, in many cases, and has a neutral effect in others.
Even in the cases of heavy satire which pokes fun at--and at the
worst insults--the artist, only uses material to express some sort of
opinion which he has the right to do anyway, not redistribute or steal
material, and even that often has a promotional effect on popularizing
the artist.
Neither copyright law nor Fair Use is fully equipped to deal with the factors of YouTube, and YouTubers
are dead tired of being told "Fair Use doesn't apply to a bunch of dumb
kids who want to sing a song they learned at a party with their
friends," or to rob professionals of the right to strive for the
rating of "Wow that film student really has too much freaking spare
time."
It's time to make Fair Use history.
Tube Use = Fair Use Applied to YouTube.
Fair Use is great, and now we need more
of it. The law is constantly tweaked and refined once it doesn't
reflect the general morality of the people anymore. YouTubers are
always told, "You can't post that, it's illegal you idiot," and never told, "You can't post that, it's immoral
you idiot," because quite often, it's not. This is the reason so
much material that violates the letter of copyright law is still up.
Even Metallica which sued the biggest Napster violators for
essentially blackmarketing their material, wouldn't ever stand up
in court and say "We're loosing a lot of business from our fans who
want to skateboard around to Fuel."
The
most common defense of the YouTuber that "Everyone else is doing it" is
a damn good one, not because it excuses illegal behavior, but
because the reason that "everyone else is doing it" is often because it's completely moral use.
But moral or not, YouTubers live in fear of not just videos being
taken down but entire accounts, regardless of whether or not we think
we do or should have the right to post what we post. Of course
there already is an appeal process, but it's based in a system of law
in which things that are moral to post aren't even legal. Even Fair Use was perfect,
firstly, your average YouTuber isn't a laywer and can't properly
defend why his video is legal use even in a one line form asking "Why
is your video Fair Use?" Even a team of lawyers would be in a
gray area defending the video, even if your average youtuber could afford to take a record or film company to court, which
is what the law demands a ten-hit webcam pop video posted for one's
friends does in order to justify it under Fair Use. And that's
only if the law made perfect sense. Right now, it doesn't.
This is what we do.
We fight respectfully for our rights, not fight like all living hell for them. Nobody's against us.
YouTube just doesn't want trouble--they're not out to stomp on
your rights, and even when the industries do take action against
videos, they're doing so out of a knee-jerk reaction to uphold the law
they're acostomed to, not to stomp on their fans for tributing their
work. If you're a cop trained to pull people over for speeding,
you just do so even if people are arguing it's too low, or even whether
you like the guy. Island isn't U2, Reprise isn't Green Day, Hollywood Records isn't Jesse Mccartney. Britney
Spears doesn't give a damn if you re-cut her music to your
favorite anime, that's called being a fan of both. The whole
system is just set up a certain way, that's all, and it can change.
The
very first thing YouTubers have to do is think morally. Respect
the owners' rights. The weakest legal case for digital sharing is
re-distributing the exact material.
It's not an absurd legal case, because you can argue you have the
right to lend your friend a copy of a DVD, or play it at a party of
twenty people. Even with Napster, the defense was made that
distributing exact material on a large basis can even promote
a band. If you share your favorite song with a million people,
maybe some of those people will buy the album. But, it's
also possible your upload of distributing exact material will
damage DVD and record sales. Maybe someone will want to buy CUBE
after watching the entire thing on YouTube to see it on their mega
hyperplasma twenty-foot widescreen instead of a little box, or
maybe they were thinking of buying it and now they won't. Why buy
a DVD if you can watch it for free online? The same goes for
every single case inbetween exact copying, and creative an minimal use.
Think, "Will my video hurt sales, defame the owner?"
Also think, "Would the person want my video up?"
Then, think legally.
Do I have the legal right to upload my video? If I really
disagree with the holder, does Tube Use (Fair Use applied to YouTube)
say I'm right here? Maybe you think you're morally justified in
beating up someone a lot of people hate, but that may not save you in
court in defense of assault. Maybe you can morally justify
mailing religious pamphlets to people, but if the law calls that
harassment, your church might be sued if done on a mass basis.
Maybe you think your
video won't hurt DVD sales, but that isn't a sufficient legal defense.
It's only a factor the judge may consider whether to go with the
letter or spirit of the law, when the law is well established, but is
stronger when it's not. The defense "I did the moral thing" is most powerful where the law is fuzzy.
But
how can YouTubers even use a defense if for all intents and purposes
they're incapable of going to court for their fifty-hit video? To convict someone without any chance of a defense is against the law and just plain mean.
Yes, YouTubers have an appeal process. You can appeal to
the owner, and if they don't respond in a week or two, your video goes
back up, but if they still don't want it up even if you know how to
argue your video is legal use, how are you going to pay for the lawyers
to fight them?
This is where the power of the many comes in.
This is how a hundred average Joes decide to do something about
what they don't feel is right or even legal when it takes resources to
do so, and it's what us YouTubers need to do in the growing gray area
of digital posession rights. All
we need is one or two pulicized respectful lawsuits against a film
or record company to refine Fair Use Law to include Tube Law.
There's no need to petition for an entirely new bill.
Remember that court rulings form law, that any past court
ruling--a precedent--can be quoted as a defense in a similar case.
And the bigger and more publicized the case--and the higher in
the courts it gets--the more influential it is in refining the law.
But
lawyers and courts take resources, time, and money, things that
neither teenage SOAD fans nor peniless Hitchcock-studying film students
panhandling for tuition, have much of. In the Napster / Record
Industry battle, both opposing sides were represented by forces with
laywers and money. But YouTube actually has a legal enterprise,
so it's natural to just wear the twenty condoms and say "Anyone with
problems go work it out with the law," but that lets the film and
record companies win by default, so, let's do just that and work it out
ourselves with them.
Remember, half of what YouTubers want to post is already indirectly allowed by so much of it not being taken down. Not just that, but unlike Napster, a lot of it nobody wants
down. Metallica doesn't want you to give all their CDs away, but
if you want to learn or teach or perform their songs, or arrange Fade
to Black to the Teletubies, or re-cut Halo 3 scenes to Wherever I May
Roam, or even spend fifty years arranging the God that Failed to
classical guitar just for fun, not only do they not give a fuck, but
they'd probably give you the thumbs up if you asked, because all that
does is promote their music if it does anything. That is, refining Fair Use into Tube Law is just a formality in many cases. It's
to say, "Alriiight, I suppooose you can re-cut Star Wars to Eminem and
show your friends if you really want," and "I supooose our fans can
teach and learn our music if they really want to." That's a good
foundation. Then we can build from that.
So, bottom line,
what exactly do we do. Well, personally, I'm not quite sure.
I'm just another bum YouTuber who has more free time than your
usual one, and this has been bugging me more and more lately. The
more parody I do on YouTube and the more I see people not being able to
put certain stuff up, the more I become annoyed at the lack of Tube
Law, and the ore I live in fear of my own account deletion.
Because there's no "Tube Law," no rulings which say
"Copyright law wasn't designed for such and such a use on YouTube."
That doesn't mean I think we should post whatever the hell we
want, it just means, we should be able to posts what most people would
agree is moral. What the artists--George Lucas, Metallica,
Britney Spears--wouldn't really mind us doing. And there needs to
be Tube Law, rulings which refine Fair Use in application to YouTube.
Rulings which take into account the careful balance of fair use
factors (right to comment, educate, parody, etc) in regards to jumping
on a trampoline choreographed to System of A Down's "Bounce."
Here are my initial thoughts on what we can do.
1. A mailing list. Email squish@TubeRights.org
with the subject "ADD LIST" and I'll add you to a general mailing list
I'll occasionally send an update to of what's going on with this stuff.
2. A chat board here.
Please email me if you're a bored webmaster or coder and are good
with that stuff. I don't know how and don't have the time to
learn right now.
3. Fundraising.
If you're good with economics or business and know a way to set
up some group bank account for a shared cause, please email me.
Until then, save up a little money, or if you actually trust
my character (I wouldn't), I've set up a PayPal account money@TubeRights.org
that you can just send a donation to. Remember, all we need is
representation for one major record company lawsuit to help form law,
not a Wolfram & Hart. Thought that might be fun too.
4. Education.
When you're bored, Google and Wikipedia yourself to death on Fair
Use and copyright laws. Then read all the copyright YouTube
policies. Then search the YouTube boards for things like fair
use, copyright, video removal, and so on. Then if you're really
bored go your actual library. Know your legal rights, and
know the legal process of appeal on YouTube. Don't let someone
automatically win a lawsuit because you don't know how to file a
counter-claim. Even if you're twelve you have legal rights.
First,
take the owner's feelings and rights into consideration, even if you're
writing a parody of them. Then, if you feel you have the legal
right to have your video on YouTube, follow the legal process if
a copyright owner asks you to take your video down, or if you
think it's Tube Use (Fair Use applied to YouTube) to put it up and
the system says you have to follow the system first before posting it.
(The system detects many duplicate copies of music or video for
the purpose of avoiding direct distribution, which as I said are often
weak cases for Fair Use, but slightly better cases for Tube Use; for
instance, hopscotching to Korn). Then, if you really feel your
video is moral Tube Use and the record or film company demands a
court ruling for your Star Wars banana-lightsaber short film or your
webcam vocal cover of a lame pop song, email me at squish@TubeRights.org and if there's a dollar or two in the tube bank, maybe we can hire a lawyer to fax them the three letters "WTF!?"
TUBERights.org
It's time to make Fair Use history.
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