The Digital Millennium Copyright Act creates a liability “safe harbor” for online service providers that post content that may be protected by copyright. It facilitates the takedown of an infringing work by providing a relatively simple “notice and takedown” procedure. However, the DMCA has been criticized for making it more difficult for individual creators to combat an overreaching copyright holder when the alleged infringement qualifies as fair use. After receiving a sufficient takedown notice, the service provider must take down the work, and the burden is on the creator to defend its fair use. This ends the issue in many cases where the creator has insufficient resources to provide a counter-notice or defend a lawsuit from an aggressive copyright holder. Last week Google announced that it will pay legal fees for some of its video-posting users to fight DMCA claims. In his post on YouTube’s public policy blog, Fred von Lohmann wrote that YouTube will be offering “legal support to a handful of videos that we believe represent clear fair uses which have been subject to DMCA takedowns.” He explained that Google is “doing this because we recognize that creators can be intimidated by the DMCA’s counter notification process and the potential for litigation that comes with it.”
Determining whether something is fair use, and thus not infringement, can be difficult. Google also announced that it will post a repository of videos that are best examples of fair use. According to Google, this will help educate the public about what is fair use and what is not, and “make the entire creative world better.” Of course, it will also assist Google in maintaining ad revenue from popular videos that otherwise might be subject to overreaching DMCA takedown notices.
Google’s aim here seems right: it is putting copyright holders on notice of their obligations, as several courts have affirmed, to assess whether a work qualifies as fair use before sending a takedown notice. If successful, this is a step in the right direction of fulfilling the constitutional mandate to “promote the progress of science and useful arts.”
