YouTube Will Pay Legal Fees to Defend Some Fair Use Videos

YouTube said it will provide legal support to a handful of videos they believe are fair use yet have received takedown notices from copyright holders.

In a blog post on Thursday, Fred von Lohmann, Google’s copyright legal director, wrote that “with approval of the video creators, we’ll keep the videos live on YouTube in the U.S., feature them in the YouTube copyright center as strong examples of fair use and cover the cost of any copyright lawsuits brought against them.”

YouTube said that it has asked some video creators to join an effort in which it is providing indemnification of up to $1 million in legal costs to defend works that have been subject to takedown notices.

Von Lohmann said that they were defending some videos “because we recognize that creators can be intimidated by the DMCA’s counter notification process, and the potential for litigation that comes with it.” The safe-harbor provision of the Digital Millennium Copyright Act protects sites like YouTube from liability if, after receiving a notice from the copyright owner, they promptly remove it.

He said that they can’t defend every video that has a strong fair use defense, but “we’ll continue to resist legally unsupported DMCA takedowns as part of our normal processes.”

The whole issue of “fair use” continues to be hotly debated, as copyright holders try to protect their works in the face of online piracy, while YouTube has become a destination for the creation of user-generated content such as videos that remix already copyrighted works.

Courts have over time defined “fair use” with a set of four factors, including whether the work is “transformative,” whether it is used for commentary or parody. They also consider things like market value.

YouTube also posted examples of videos in which they have asked rights holders to reconsider takedowns or have reinstated videos.

Among them: a remix video that compares the way that women are portrayed in the “Twilight” series to the TV show “Buffy the Vampire Slayer.” They also cited a video from Mitt Romney’s 2012 campaign that initially was taken down because it featured President Barack Obama singing a portion of Al Green’s “Let’s Stay Together.”

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