A conflicting set of interests?

Avi Santo's picture
First, this week’s IMR curator roster: Monday = Jeffrey Sconce (Northwestern University) Tuesday = Walter Metz (Montana State University) Wednesday = Amelie Hastie (University of California, Santa Cruz) Thursday = Arvind Rajagopal (New York University) Friday = Jennifer Holt (University of California, Santa Barbara) While the filter model we’ve converted IMR to has made it much easier for curator’s to access digitized versions of materials to comment on – and in the case of Jyotsna Kapur’s contribution is something you really might only be able to find on-line – there remains some question as to the efficacy of relying on third-party hosting sites like Youtube, especially for materials uploaded by our curators (rather than “found”), given Youtube's penchant for cowing to corporate threats and yanking down anything that potentially challenges copyright and fair-use laws. Clearly, Viacom’s latest demands are a clear example of this. MediaCommons is adamant about the rights of scholars to quote from media materials as part of our critical analytical and pedagogical practices, but nonetheless, as my esteemed colleague Jeremy Butler points out, we might be facing a serious conflict of interests. While discussing the possibility of using a clip from "My Name is Earl" for an upcoming IMR curatorial effort, Butler expressed the following concerns (reprinted below with his permission):
I can see why you don't want to get into the business of hosting video and I applaud this statement: ‘An important element of MediaCommons is that we're asserting our "fair use" right as educators to quote from the media.’ But to upload a media "quotation" from something such as My Name Is Earl to YouTube is quite different from uploading it to MediaCommons. Specifically, I would have to violate YouTube's terms of service to do so. Even though it is widely ignored, its ToS clearly states:
"In connection with User Submissions, you affirm, represent, and/or warrant that: (i) you own or have the necessary licenses, rights, consents, and permissions to use and authorize YouTube to use all patent, trademark, trade secret, copyright or other proprietary rights in and to any and all User Submissions to enable inclusion and use of the User Submissions in the manner contemplated by the Website and these Terms of Service; and (ii) you have the written consent, release, and/or permission of each and every identifiable individual person in the User Submission to use the name or likeness of each and every such identifiable individual person to enable inclusion and use of the User Submissions in the manner contemplated by the Website and these Terms of Service."
In similar fashion, Google Video's ToS says:
"You hold and will continue to hold the necessary rights, including but not limited to all copyrights, trademark rights and rights of publicity in and to Your Authorized Content and Your Brand Features to enter into this Agreement and to grant the rights granted herein;
I would presume Vimeo and Veoh have similar ToS statements. Consequently, uploading My Name Is Earl to any of these ( commercial ) sites would have to be done under fraudulent conditions. It's particularly difficult to make a fair use claim when you're putting something on a commercial site that potentially earns someone money. E.g ., would Google have plunked down all those stock options for YouTube if its popularity--fueled by clips violating copyright law--hadn't been so immense?”
While we feel the filter model is the best way to get scholars involved in critical conversations rather than technological terrors, we also recognize that this is a choice of some consequence and with real repercussions for our community, so as always, we want to air these concerns publicly and get your input.

Comments

Ben Vershbow's picture

I'm really glad Jeremy

I’m really glad Jeremy raised these concerns and I think it’s great to discuss these issues in the open. Making a bold and uncompromising stand on fair use is an integral part of In Media Res (and MediaCommons in general) so I certainly wouldn’t support adopting the filter model if I thought it would weaken our position.

The reason I think we’re OK using third-party hosts is that we’re taking pains to rip backup copies of every video we post and are 100% prepared to remount any items that might get taken down — on other video sites or on our own server if need be. From what I understand of these various sites’ TOSs, uploading a movie means ceding rights to that particular file but not to the actual contents. The site can do whatever it wants with its copy: use it for promotional purposes, sell adds off of it or take it down if some media lawyer starts breathing down its neck. If that happens, there’s nothing stopping us from re-posting the movie elsewhere.

Of course, NBC could say you have no rights to the My Name is Earl material in the first place but that’s precisely where we plant our flag and say “fair use.” Right now, however, we’re not talking about cease and desist threats from media companies, we’re talking about dealing with potentially flaky host websites and whether their TOSs fundamentally imperil our right to quote. It seems to me that as long as we’ve got that backup copy and are prepared to use it that relying on third party infrastructure for our day to day needs is not going to be a problem.

Jeremy, what say you?

Jeremy Butler's picture

As a follow-up to this

As a follow-up to this story, consider that this week 20th Century-Fox pursued not YouTube, but a person who uploaded videos to it. And Google/YouTube promptly identified that user so that Fox could prosecute him. internetnews.com quotes Fox Television Vice President of Media Relations Chris Alexander: “We intend to use the information provided to pursue all available legal remedies against those who infringed our copyrights.”

Can MediaCommons ask media scholars to upload copyrighted clips to video services when the possibility exists that they may be sued for doing so?

And in similar news, NBC’s new CEO, Jeff Zucker has implied that they may begin demanding YouTube remove NBC programs:

“YouTube needs to prove that it will implement its filtering technology across its online platform. It’s proven it can do it when it wants to,” Mr Zucker said, referring to the site’s controls to block pornography and hate speech. He added: “They have the capability. The question is whether they have the will.”

For more on these stories, see:

http://www.internetnews.com/xSP/article.php/3659401
http://www.techcrunch.com/2007/02/08/nbc-piles-on-google-youtube-strateg…

[...] Apropos of our post

[…] Apropos of our post (and Jeremy’s reply) below on the conflicting set of interests surrounding current fair use provisions for scholars on many video sharing services, the Chronicle of Higher Education reports today on one scholar’s challenge to YouTube’s restriction of fair use. Wendy Seltzer, a visiting assistant professor at Brooklyn Law School and former lawyer with the Electronic Frontier Foundation, recently received a DMCA takedown notice from the service after she posted, for classroom use, a brief clip containing the copyright warning that the NFL attached to the broadcast of the Super Bowl. […]

Jeremy Butler's picture

Another follow-up: The Wall

Another follow-up:

The Wall Street Journal is reporting that NBC has told YouTube to remove all unauthorized NBC-originating materials.

And YouTube has announced that it will soon implement copyright-protection mechanisms to aid copyright holders in locating their materials on YouTube.

YouTube is beginning to look more and more like Napster…

Tim Anderson's picture

Right, it's becoming a

Right, it’s becoming a popular “port” for clips that enact a form of distribution: publicity. I wonder if NBC is doing this because of organized affiliate pressures. Any idea?