John Aravosis at AMERICAblog reports that YouTube has terminated his account. Because of alleged copyright infringement. As if a significant proportion of everything posted at YouTube somehow is not copyright infringed material. (John has a list of current home page highlighted favorites to underscore the point.)
Aravosis grants that infringement is a legitimate concern, but argues that the value of the exposure to the infringed may be much greater than the ordinary downside of copyright violation, and therefore negates such concern. He argues that YouTube - and infringement claimants - may collectively be cutting off their nose to spite their face.
But John neglects discussion of an enormous point in his favor, the Fair Use Exception to copyright law. TITLE 17
§ 107. Limitations on exclusive rights: Fair use
Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include—
(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
(2) the nature of the copyrighted work;
(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
(4) the effect of the use upon the potential market for or value of the copyrighted work.
The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors. Aravosis' publication of YouTube videos is news reporting, and that reason for his use is both indisputable and profoundly self-evident.
YouTube does have a perfectly legitimate right to deny its service to anyone, just like any other business can - as long as the denial is not itself a violation of law (civil rights law, for example). But that simply creates opportunity for competition to fill a void. And John effectively observes that YouTube's new owner Google is undertaking (so to speak) a process of self-destructive behavior.
update:
Reading the comments to John's post at AMERICAblog reveals a monumental lack of understanding about copyright. Copyright is an enormously important principle - authors and inventors are the only business people selectively identified for particular guarantee in the Constitution. And copyright is an imperative protection for individuals - corporations can only enjoy derivative protection. But Fair Use is an exceedingly important part of the equation. And for the same reasons any broadcast network news program can legally and properly show a clip from the Daily Show (or any other copyrighted material), so can John Aravosis, or any other blogger whose purpose is described in the statutory text of Fair Use exceptions.
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