[A2k] Fair Use Principles for User Generated Video Content (formatted)

[Manon Ress]

From: Sean Flynn <sflynn@WCL.AMERICAN.EDU>
Date: November 5, 2007 11:40:49 AM EST
Subject:  Fair Use Principles for User Generated Video Content

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=3D1

[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 =93fair use=94 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 (=93filters=94) 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 =93filtering=94 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
=93three strikes=94 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 =93ratio test=94).

If filtering technologies are not reliably able to establish these
=93three strikes,=94 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=92s video is =93matched=94 by an automatic filter, the user should be
promptly notified by the service provider of the consequences of the
=93match=94 and given the opportunity to dispute the conclusions of the
filtering process. Notice should be provided to the user whether or
not the =93match=94 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 =93match=94 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 =93quarantine=94 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=92s =93notice-and-
takedown=94 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 =93counternotice-and-putback=94
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=92s right to issue
a DMCA counter-notice and the provider=92s 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 =93Dolphin Hotline=94: Every system makes mistakes, and when
fair use =93dolphins=94 are caught in a net intended for infringing
=93tuna,=94 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=92s decision to issue a DMCA
takedown notice and explain why the user believes the takedown was
improper.

This =93dolphin hotline=94 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 =93counternotice-and-
putback=94 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.