[A2k] Fair Use Principles for User Generated Video Content

[Sean Flynn]

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PIJIP and other organizations have endorsed a new set of Fair Use
Principles for User Generated Video Content.



The full document is available at:



http://www.wcl.american.edu/pijip/documents/UGCFairUseBestPractices.pdf?
rd=1



[SNIP]



Content owners and service providers have indicated their mutual
intention to protect and

preserve fair use in the UGC context, even as they move forward with
efforts to address

copyright concerns. The following principles are meant to provide
concrete steps that they

can and should take to minimize the unnecessary, collateral damage to
fair use as they move forward with those efforts.



1. A Wide Berth for Transformative, Creative Uses: Copyright owners are
within their

rights to pursue nontransformative verbatim copying of their copyrighted
materials

online. However, where copyrighted materials are employed for purposes
of comment,

criticism, reporting, parody, satire, or scholarship, or as the raw
material for other kinds

of creative and transformative works, the resulting work will likely
fall within the bounds

of fair use.



But a commitment to accommodating "fair use" alone is not enough.
Because the precise

contours of the fair use doctrine can be difficult for non-lawyers to
discern, creators,

service providers, and copyright owners alike will benefit from a more
easily understood

and objectively ascertainable standard.



Accordingly, content owners should, as a general matter, avoid issuing
DMCA or other

informal takedown notices for uses of their content that constitute fair
uses or that are

noncommercial, creative, and transformative in nature.2



2. Filters Must Incorporate Protections for Fair Use. Many service
providers are

experimenting with automated content identification technologies
("filters") to monitor

their systems for potential copyright infringements. If a service
provider chooses to

implement such filters, the following precautions should be taken to
ensure that fair uses

are not mistakenly caught in them:



a. Three Strikes Before Blocking: The use of "filtering" technology
should not be

used to automatically remove, prevent the uploading of, or block access
to content

unless the filtering mechanism is able to verify that the content has
previously

been removed pursuant to an undisputed DMCA takedown notice or that
there are

"three strikes" against it:



(1) the video track matches the video track of a copyrighted work
submitted by a

content owner;

(2) the audio track matches the audio track of that same copyrighted
work; and

(3) nearly the entirety (e.g, 90% or more) of the challenged content is
comprised

of a single copyrighted work (i.e., a "ratio test").



If filtering technologies are not reliably able to establish these
"three strikes,"

further human review by the content owner should be required before
content is

taken down or blocked.



b. Humans Trump Machines: Human creators should be afforded the
opportunity

to dispute the conclusions of automated filters. If a user's video is
"matched" by

an automatic filter, the user should be promptly notified by the service
provider of

the consequences of the "match" and given the opportunity to dispute the

conclusions of the filtering process. Notice should be provided to the
user whether

or not the "match" results in the blocking of content (e.g., a parodist
may not want

the target of the parody receiving a share of revenues generated by it).



If the user disputes a "match" pursuant to the above dispute mechanism
provided

by the service provider, the provider should promptly notify the
relevant content

owner. The service provider may choose to impose a brief "quarantine"
period on

the content (no more than three business days), in order to afford
content owner

an opportunity to issue a DMCA takedown notice after human review of the

disputed content.



c. Minimization: In applying automated filtering procedures, service
providers

should take steps to minimize the impact on other expressive activities
related to

the blocked content. For example, automated blocks should not result in
the

removal of other videos posted by the same user (e.g., as a result of
account

cancellation) or the removal of user comments posted about the video.



3. DMCA Notices Required for Removals: The DMCA's "notice-and-takedown"

procedures provide two important protections for creators whose
noninfringing materials

are improperly targeted for removal: (1) the right to sue where the
removal is the result of

a knowing material misrepresentation3 and (2) a
"counternotice-and-putback" procedure

that overrides a takedown notice unless a content owner is willing to
file an infringement

action in court.



In order to preserve these protections, service providers should require
compliant DMCA

takedown notices from content owners before removing content in any
manner that does

not afford users the ability to contest and override the removal (such
as the dispute and

notice procedure described in Principle #2b above).



4. Notice to Users upon DMCA Takedown: Upon issuance of any DMCA
takedown

notice by a content owner, the service provider should provide prompt
notice to the user

who posted the allegedly infringing material. Such notices should
include (1) an entire

copy of the takedown notice, (2) information concerning the user's right
to issue a

DMCA counter-notice and the provider's procedures for receiving such
notices, and (3)

information about how to contact the content owner directly in order to
request a

reconsideration of the takedown notice (see Principle #5 below).



Where feasible, this information should be made available to the posting
user on the page

where the content formerly appeared, as well as in private
communications (such as

email).



5. Informal "Dolphin Hotline": Every system makes mistakes, and when
fair use

"dolphins" are caught in a net intended for infringing "tuna," an escape
mechanism must

be available to them. Accordingly, content owners should create a
mechanism by which

the user who posted the allegedly infringing content can easily and
informally request

reconsideration of the content owner's decision to issue a DMCA takedown
notice and

explain why the user believes the takedown was improper.



This "dolphin hotline" should include a website that provides
information about how to

request reconsideration, and a dedicated email address to which requests
for

reconsideration can be sent.  Service providers should ensure that users
are informed of

these mechanisms for reconsideration, both on the site where the removed
material

previously appeared, as well as in the notice described in Principle #4
above.



Upon receiving an informal request for reconsideration of a particular
takedown notice,

the content owner should evaluate the request promptly, generally within
three (3)

business days, and retract the notice where it was issued in error.



6. Mandatory Reinstatement upon Counter-notice or Retraction: Service
providers

should establish and follow the formal "counternotice-and-putback"
process

contemplated by the DMCA. Service providers also should provide users
with a

streamlined mechanism to reinstate content in cases when a takedown
notice has been

retracted by the content owner.