06/08/2010 05:00 pm ET | Updated May 25, 2011

Putting the "Fair" Back in "Fair Use"

In 2008, the RIAA announced that it would no longer be prosecuting individuals for copyright violations. For many, myself included, this marked the end of any extensive attention paid to issues surrounding "piracy". Yet the state of affairs after the announcement was not terribly different. According to The Consumerist, over five-thousand people who downloaded The Hurt Locker are facing a lawsuit. Ars Technica reports that over 4,500 people who downloaded Far Cry are being sued as well. Meanwhile, over at YouTube, corporations are flaunting Fair Use as they push the video site to take down parodies of the movie The Downfall.

So what's the problem here? These people broke the law, and they should be sued ... right? The issue here is that the vast majority of the people being sued are not people with income -- they're college students. Other people may not even be aware of any file-sharing occurring: those whose routers are not password-protected, people who have family computers, or people who are victims of mal-ware. Meanwhile, corporations move in and sue large swaths of individuals in a single lawsuit. Both the cases against the over 5,000 "Jane/John Does" who downloaded The Hurt Locker and the 4,500 "Jane/John Does" who downloaded Far Cry are bundled. What does this mean? It means the plaintiff (the corporation bringing the suit) only has to "to file one lawsuit, pay one filing fee, and submit one set of documents" rather than "file 4,577 separate lawsuits, each with their own filing fees and documents" (Ars Technica).

More often than not, these people are unsure how to respond to the legal actions being taken against them, and frequently they are unable to hire a lawyer. Ars Technica shows a number of hand-written legal filings, in response to the motions made by a professional legal team. Unsurprisingly, such filings can do little in the face of a Harvard-trained, well-funded, full-time, and multi-person legal staff. But this is only half of the story.

As I mentioned earlier, over at YouTube, users have been noticing their handiwork disappearing as of late. Whereas previously YouTube restricted itself only to removing mere copies of copyrighted material, and even then only at the specific request of corporate entities or in the face of legal threats, now the witch-hunt has expanded to parodies, preemptive removal, even without the direct involvement of corporations. National Public Radio provides some brief coverage of the Downfall parodies being taken down.

Their interview with a YouTube spokesperson, Aaron Zamost revealed how it was done. YouTube has developed a "content ID system," which allows corporations to submit their material to the system, and YouTube will recognize the material throughout the submitted videos and remove it. To be removed, the video in question does not necessarily have to use the copyrighted material in its entirety -- it can be just a small portion of it. Said Zamost, "we're scanning every user upload against a reference database of over three million files."

While this might be a great arrangement for YouTube and corporations, this is most certainly not ideal for individuals, and it might not even be in line with the law. The United States has a provision of copyright law known as Fair Use which permits the use of copyrighted material for artistic, political, informational, scholastic, or a variety other purposes -- including satire and parody.

Unfortunately, this aspect of the law is particularly unclear, something out of the ordinary when it comes to copyright in the United States. According to the American Library Association, Section 107 of the Copyright Act of 1976, which defines Fair Use, provides a "vague definition, intentionally so, presenting broad principles with no reference to numerical limits on the portion of a work used, or the length of time a work can be used. This vagueness provides tremendous flexibility, but also leads to much uncertainty." This "flexibility" and "lack of certainty" is what has allowed the corporations pressuring YouTube to get away with trashing freedom of expression on the web for so long.

You'll note that I didn't indict YouTube for caving to the demands of its corporate callers. While I would have significantly more respect for it if it were more willing to stand up against corporations intent on stifling free expression, lawsuits such as this one are key examples as to why such a stance is not more common. The case involves a suit against YouTube for the amount of one billion dollars for apparently not being strict enough with taking down Viacom's copyrighted material. The case, says the EFF, "came on the heels of Viacom's delivery of more than 100,000 takedown notices targeting videos allegedly owned by Viacom (which YouTube promptly complied with)."

Some might recognize the problem here, but wonder why they should care. The Electronic Frontier Foundation provides us with particularly powerful reasoning merely by showing us examples of how individual YouTube viewers have impacted national politics and culture. Some might not remember this, but the 2008 election was driven by the Internet, and by YouTube in particular (does anyone remember Obama Girl?). Beyond even the power of the organic nature of the internet, the internet is vital as a means of escaping the influence of corporate-owned media, who are too-often unwilling or unable to criticize their corporate parents and hold them accountable. If these lawsuits continue; if Fair Use isn't clarified and broadened; and if formerly safe-havens for creativity on the internet go under, we are all in trouble.