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Google to help defend Fair Use on YouTube

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Offline kat

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Google announced a new initiative it hopes will help content authors navigate the complexities of Copyright and DMCA on YouTube. The drive hopes to establish a body of work Google/YouTube considers to be good examples of "Fair Use", material they are prepared to use/defend in Court (to the tune of $1 million if needed).

At face value the drive sounds like a good idea except that Fair Use isn't always that cut 'n dry, success is down to argument, not necessarily  'facts'; holding "X" aloft as a shining example of Fair use doesn't equate to "Y" also being good use no matter how similar the circumstance.

It's not wholly clear from the information available under what capacity Google would be operating; would it be on behalf of the accused as an 'Advocate' (opines about the merits of a given case), or as their legal 'Council' (argues the case to the Court), or some other capacity. The difference matters.

Of greater concern is the fact that Google thrives off the back of others content so with their getting involved would Court Findings then be used to further strengthen their own cause, pushing their own agenda(s) with respect to what the Corporation perceives as 'free(ish)' access to information serving their interests rather than those of the accused, content authors, or indeed even Copyright and free expression. Cui Bono as the saying goes.

The initiative doesn't specifically clarify Googles position with respect to their own contentious Content ID system (DMCA was in force prior); how is Google able to act on behalf of an individual they (Google) has potentially marked down as having violated YouTubes Terms of Service (ToS violations/strikes usually proceeding DMCA take-downs) - uploading a video to YouTube requires the person agree to a perpetual sub-license to the platform and User-base permitting derivative use[1] (contextually this relates to the freedom to express NOT freedom to monetise), so how does their going to Court on others behalf affect the individuals standing with respect to Google itself striking the person before escalation to DMCA.

There are other points of contention, all of which translate to acquiring an air of caution whenever big corporations step in to the affairs of the little people, it's never just about helping those individuals, rather strengthening the case, cause or agenda for whatever interests they have[2] (cf. recent concerns Google has voiced over hyperlinks being brought potentially under the auspices of Copyright in the EU).

Further Reading
A Step Toward Protecting Fair Use on YouTube - http://googlepublicpolicy.blogspot.co.uk/2015/11/a-step-toward-protecting-fair-use-on.html
What is fair use? - https://youtube.com/yt/copyright/fair-use.html#yt-copyright-protection

[1] Extracts from YouTubes Terms of Service users agree with when uploading content to the service. The establish the relationship the User has with their Content and both the Individuals and Content relationship to YouTube and the Service, i.e. the User, upon upload, grants unlimited royalty free licence to YouTube and it's Users to use uploaded content in any form (see emphasis below);

7 Content
 - 7.2 You retain all of your ownership rights in your Content, but you are required to grant limited licence rights to YouTube and other users of the Service. These are described in paragraph 8 of these Terms (Rights you licence).
 - 7.4 You represent and warrant that you have [...] all necessary licenses, rights, consents, and permissions which are required to enable YouTube to use your Content for the purposes of the provision of the Service by YouTube, and otherwise to use your Content in the manner contemplated by the Service and these Terms.
 - 7.7 You agree that Content you submit to the Service will not contain any third party copyright material, or material that is subject to other third party proprietary rights (including rights of privacy or rights of publicity), unless you have a formal licence or permission from the rightful owner, or are otherwise legally entitled, to post the material in question and to grant YouTube the licence referred to in paragraph 8.1 below.

8. Rights you licence
 - 8.1 When you upload or post Content to YouTube, you grant:
 - - to YouTube, a worldwide, non-exclusive, royalty-free, transferable licence (with right to sub-licence) to use, reproduce, distribute, prepare derivative works of, display, and perform that Content in connection with the provision of the Service and otherwise in connection with the provision of the Service and YouTube's business, including without limitation for promoting and redistributing part or all of the Service (and derivative works thereof) in any media formats and through any media channels;
 - - to each user of the Service, a worldwide, non-exclusive, royalty-free licence to access your Content through the Service, and to use, reproduce, distribute, prepare derivative works of, display and perform such Content to the extent permitted by the functionality of the Service and under these Terms.
 - 8.2 The above licenses granted by you in Content terminate when you remove or delete your Content from the Website. The above licenses granted by you in textual comments you submit as Content are perpetual and irrevocable, but are otherwise without prejudice to your ownerships rights, which are retained by you as set out in paragraph 7.2 above.
[2] Trivia. It should be of interest to those following the #gamergate hashtag that several examples of 'good' "Fair Use" presented by Google in the above linked information are authored by Jonathan McIntosh, whom as part of Feminist Frequency, Google has advocated support.