(Crossposted from the American Constitution Society :: Columbia Law School)
I've divided this post into two parts for the benefit of those of us whose love of the internet does not translate into an appreciation of US internet law. Part I discusses a dramatic rodent capturing the attention of the internet. Part II discusses the law surrounding this rodent.
Part I: Dramatic Rodents on the Internet
The 5-second video below was originally titled "Drama Chipmunk" (I guess it's actually a prairie dog) and appeared on YouTube a little over five days ago:
(In case you're reading this post sometime after, say, July 1, 2007, I suspect that the clip will be removed — for reasons that are described in the law section below. If the video link doesn't work, Google the title of the clip you will find it.)
Since then, this dramatic little beast's performance has been viewed by more than 500,000 people. It has inspired a t-shirt. It has spawned numerous imitations and parodies, many of which are hilarious.
...it may or may not be on YouTube illegally.
Part II: The Law of Dramatic Rodents on the Internet (5-minute version)
When I first saw the Drama Chipmunk/Prairie Dog, I suspected that it was one of the few videos posted to YouTube where the person posting the video actually had done so legally.
There are 2 kinds of videos that can be legally posted on YouTube. For all the other kinds of videos on YouTube – where the posting of the video is illegal under U.S. copyright law – there is a specific law designed to keep the YouTubes of the world out of trouble (even if the people actually posting the videos may themselves get in a little trouble).
Legal YouTube Video #1 — The Person Publishing the Video Has the Right Set of Sticks: In every property law course taught in America during the past 100 years, the professor has at some point said, "property is a bundle of sticks." Although the rights underlying U.S. copyright law differ slightly from the rights underlying property ownership, the sticks metaphor holds up: Depending on the circumstances, you might have the right set of sticks, you might not.
Some of the videos you see on YouTube are legal because the person publishing the video is the copyright owner with the right to display and/or distribute the video. When you see guys destroying an old car with a 500-lb ball of rubber bands or free running through the streets of Russia, you're watching a video where the person who shot the video is probably the same person who edited the video for web-distribution, and is probably the same person who uploaded it to YouTube. In this case, it's extremely likely that the person has the right to post the video online.
Legal YouTube Video #2 — The Person Publishing the Video is a Fair User: Under the U.S. Constitution, copyright law protects original works "[t]o promote the Progress of Science and useful Arts," not to make content creators rich. As such, the rights protected by copyright can be limited for a variety of purposes.
The largest limit on an owner's copyright in the United States is something called Fair Use. This doctrine permits an unauthorized person to use someone else's work in a manner that is fair, usually a use that contributes to society in some (modestly) beneficial way without taking too much money out of the original author's pocket through a lost market. In 1976, the Congress formally enacted a statute governing fair use (17 U.S.C. § 107), adopting judge-created language that had been in use since the 1840's:
. . . the fair use of a copyrighted work . . . for purposes such as criticism, comment, news reporting, teaching . . . , scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include—Fair use is a tricky one. It lets 2 Live Crew perform Pretty Woman without Roy Orbison's permission, but it doesn't permit a magazine to print (without authorization) a book's bombshells about Nixon before that book has been published, nor does it let a television show display an artistic poster on TV without permission from the poster's creator.
- the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
- the nature of the copyrighted work;
- the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
- the effect of the use upon the potential market for or value of the copyrighted work.
Well, the creator of Drama Chipmunk/Prairie Dog (which I'm going to abbreviate as DCPD) probably doesn't own the rights to post it online. Earlier today, I learned that DCPD was taken from a Japanese TV show, almost certainly without the permission of the copyright holder. (Foreign copyright holders have a U.S. copyright to their works at the moment of creation. There's no registration required.) Taking a current TV show without permission and displaying it on the internet? That's a prima facie case of copyright violation, and the creator of DCPD will be on the hook for copyright violation unless DCPD constitutes a fair use.
This armchair judge is certain that DCPD is a fair use. Under the statutory test quoted above, it will win the battle of the prongs (Under the purpose and character test it will be considered transformative, although the TV show owner will win the second prong, the third and fourth prongs will lean heavily in Drama Chipmunk/Prairie Dog's favor). Still, it's a close call, and it's a call that internet remix artists are not aware of when they remix culture online.
How YouTube Stays in Business with People Posting Videos that Violate U.S. Copyright: Since even something as short, innocent, and – in the language of fair use – transformative as DCPD is a close call, it should be obvious that violating videos are posted to YouTube all the time. Here's how the law of posting copyright-violating videos to YouTube works.
Congress passed a wide-ranging law in 1998 called the Digital Millennium Copyright Act (which everybody calls the "DMCA"). If you talk to people who share online music, you've probably heard them complain about the DMCA — but the section of the DMCA that they're complaining about, Title I, has literally nothing to do with the section we're going to talk about, Title II. Title II is kinda cool.
Without Title II, YouTube would not be in business. Before Title II, YouTube would be contributorily and/or vicariously liable every time a user posted a video that violated copyright and a lawsuit was filed against that user and YouTube. Title II (which is now 17 U.S.C. § 512) creates a "safe harbor" for services like YouTube. Paragraph 512(c) eliminates YouTube's liability — unless a user's content is obviously a violation of copyright (DCPD is not an obvious violation) and as long as YouTube cooperates with copyright owners who demand that YouTube remove content violating their rights, YouTube can wait until those copyright owners complain before they remove content that violates copyright.
Under the current interpretation of 512(c), YouTube is in the clear; however, as more and more copyright owners see their rights violated on YouTube, they'll continue to exert pressure on the U.S. court system to tweak the interpretation of 512(c) into one that is less favorable to YouTube and other Web 2.0 businesses.
Under paragraph 512(c)(1)(a)(ii), YouTube would get in trouble if it let a user post content that was clearly violative of copyright. Previous courts have stated that user-posted content would need to set off bells and whistles to meet the obviously illegal standard: Something titled HERE'S AN ILLEGAL VIDEO THAT I STOLE FROM THE RIGHTFUL COPYRIGHT OWNER would probably meet the standard. However, earlier this month the 9th Circuit Court found that two websites — one entitled illegal.net and the other named stolencelebritypics.com — did not meet the standard whereby the company hosting the sites should have known that "infringing activity [was] apparent." I strongly suspect we'll see what the Supreme Court says about that assumption.
Until then, YouTube's business plan is safe, video remix artists will continue to remix culture and post it online, and a certain Drama Chipmunk/Prairie Dog will continue to captivate us with his/her penetrating gaze.