YouTube Remixers & Small Statutory Offenders in Focus

YOUTUBER_ICONBy Andrew H. Fuller

There is little doubt that YouTube content creators have been causing waves in the copyright world since its inception. For example, in 2009, YouTube started to mute the audio tracks of any videos or streams posted by users that contained unauthorized copyrighted music. Another common and popular genre of YouTube content is remixes, where YouTube artists create content by altering and sampling from existing, copyright protected content. Most YouTube content creators are unaware and unconcerned about copyright laws or infringement claims until YouTube cracks down on them. Those who are vaguely familiar often assume that their use is within the bounds of Copyright’s Fair Use exception. Given the general (mis)understanding around Fair Use and the courts’ treatment and application of this exception, the Lanham Act would seem ripe for an update. While the technological landscape of media dissemination and user consumption has radically shifted, the laws around copyright haven’t changed.

On Thursday, January 28th, 2016, the Department of Commerce Internet Policy Task Force published its “White Paper on Remix, First Sale, and Statutory Damages” (white paper) for Copyright Policy, Creativity, and Innovation in the Digital Economy. This white paper has broad applicability to copyright law, but will certainly impact YouTube content creators.

Consistent with Congress’s general preference for tech-neutral regulatory approaches, the Task Force’s conclusions do not advocate amending the existing Fair Use exception statute. Instead, the Task Force focused on ways to increase content creators’ understanding of fair use and licenses. The Task Force’s conclusions have three primary goals: (1) “The development of negotiated guidelines providing greater clarity as to the application of fair use to remixes;” (2) “Expanding the availability of a wider variety of voluntary licensing options;” and, (3) “Increasing educational efforts aimed at broadening an understanding of fair use.”

However, the Task Force is aware that statutory damages have become important for online infringement born of YouTube and its offspring. Unlike the fair use exception, the Task Force suggests that amending the Lanham Act could help tailor the law for the modern context. The Task Force suggests the following three amendments: (1) “Incorporate into the Copyright Act a list of factors for courts and juries to consider when determining the amount of a statutory damages award;” (2) “Implement changes to the copyright notice provisions that would expand eligibility for the lower “innocent infringement” statutory damages awards;” and, (3) “In cases involving non-willful secondary liability for online services offering a large number of works, give courts discretion to assess statutory damages other than on a strict per-work basis.” Additionally, the Task Force recommends the creation of a small claims court, or something similar, to adjudicate minor copyright infringement claims.

If you’re a YouTube content creator, or if you represent artists with valuable copyright, you should continue to monitor agency reaction to this white paper because the landscape of online copyright protection might, once again, be in metamorphosis; let’s see if we get moths or butterflies.

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