Abstract
Part I of this Note covers the history of the fair use doctrine and its interplay with the DMCA, specifically within the context of video-hosting platforms likeYouTube, and examines how recent case law developments concerning the DMCA have fostered an environment that is ripe for abuse. Part II then argues that most content creators on YouTube have little to no recourse if their fair use creations are flagged as infringing content by right holders who request DMCA takedowns. Specifically, YouTube’s copyright policies and the excessive costs of litigation disincentivize users from fighting DMCA takedowns or pursuing legal actions to counteract bad faith behavior. As a consequence, the fair use defense is inaccessible to most YouTube content creators. Finally, Part III proposes the implementation of a quotation licensing scheme as one option to mitigate DMCA takedown abuse on YouTube. In recognizing the value of fair use for incentivizing creation, this scheme would contractually carve out a small exception to infringement, permitting limited appropriation of fellow users’ content on YouTube.
Highlights
In 2019, YouTube logged two billion users a month and received over 500 hours of content uploads every minute.[1]
Congress wrote into the Digital Millennium Copyright Act (DMCA) various safety valve provisions that were meant to guard against such abuse, including: (1) the requirement that a copyright owner alleging infringement submit any request for a DMCA takedown under a good faith belief that the use is infringing;[39] and (2) creating a cause of action against persons who “knowingly materially misrepresent[]” whether the content was infringing or taken down by mistake.[40]
[44:1 a tool for blackmail and extortion, as well as for doxxing efforts.[95]. More relevant to this discussion, though, is how the fear of receiving a DMCA takedown notice—and the accompanying copyright strike—stifles creativity, and how the high cost of potential litigation disincentivizes YouTube creators from disputing takedowns issued against content that may qualify as fair use
Summary
In 2019, YouTube logged two billion users a month and received over 500 hours of content uploads every minute.[1]. The fair use doctrine recognizes that certain uses of copyrighted works should be shielded from liability for copyright infringement.[11] aside from filing a counter notification,[12] YouTube users who receive a takedown notice are effectively limited to asserting a fair use defense in court This is largely because the fair use test requires the contemplation of four factors, none of which is singularly determinative of whether the work qualifies as a fair use.[13] While the prospect of litigation might deter some right holders from initiating a DMCA takedown, the same prospect could deter content creators who appropriate copyrighted works from pursuing a fair use defense. In recognizing the value of fair use for incentivizing creation, this scheme would contractually carve out a small exception to infringement, permitting limited appropriation of fellow users’ content on YouTube
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