Where can I find clear rules for fair use of online videos?

November 3, 2007 5:08 PM

Clear rules for fair use of online videos?

I'm building a website that will often use video clips from various sources, ranging from home videos to movie/tv clips hosted by Youtube. Where can I find rules and guidelines for fair use of videos?

I know the general rules for fair use but I couldn't find any hard rules (e.g. how many seconds of a clip is ok).

My website is not a video critique site, not educational, and it runs advertisements. It will be a pretty big website so it won't fly under the radar like so many personal blogs.

My biggest concern is to AVOID LITIGATION.

Thanks in advance for any responses.

posted by m2002 to computers & internet (10 comments total)

I don't think you're find 'clear rules' like how many seconds. This is because the language of the law is deliberately vague, permitting a variety of interpretations that go beyond today's technology + thoughts. It's more of the 'spirit' of the law, and gets tested in court.

Your description of what you're going to do? Yup, you're going to get cease & desist orders (just because they send you one, doesn't mean they're valid.) I'd instead look for a great lawyer who specializes in this...AND add some legal incursions into your business plan.
posted by filmgeek at 5:18 PM on November 3, 2007

Being within the law doesn't mean you avoid litigation, it just (hopefully) means you win when litigation happens.
posted by winston at 5:21 PM on November 3, 2007

Can't authors of web videos (I'm thinking of YouTube in particular) disable the ability for other people to embed the author's video in other sites (which makes me wonder why'd they'd post it to a video-sharing site to begin with)? If the web video author isn't the copyright holder, it's not going to fly, legally.

Are you hosting these videos on your own server? That's a different kettle o' cod.
posted by potsmokinghippieoverlord at 5:36 PM on November 3, 2007

What exactly is the purpose of including the clips? If it's not for parody, criticism or educational use, you're probably not covered. Sounds like you already know this though.

Fair use is a hugely messy business, and the case law is often contradictory - there are no hard & fast numbers (unless you're talking about classroom use, in which case you can follow the Stanford guidelines and be fairly sure you're OK). If you're lucky, you might get DMCA takedown notices rather than straight-up litigation, if you want to risk it. But you need to be more specific about the purpose of the site.
posted by media_itoku at 5:39 PM on November 3, 2007

To Filmgeek & Winston

Those are great points guys. Avoiding litigation is probably not possible. I should say I want at least a set of guidelines that will help me minimize litigation as much as possible.

I forgot to mention in my original post that we will have many guest contributors to this website. So these guidelines are mostly for their benefit.
posted by m2002 at 5:39 PM on November 3, 2007

You won't find clear rules because there aren't any. No less a copyright scholar than Larry Lessig has said:

I love it when non-lawyers sing of the virtues of "fair use." The only thing this claim demonstrates is that this reviewer didn't bother to finish reading the book. "Fair use" in America is the right to hire a lawyer. Wonderful. And in fact, the "Web" does not let you "legally link" to copyright material. Ask 2600 about the rights to link in America today.

... let alone posting the various copyrighted material yourself. The problem is that fair use is infringement - that a judge has excused. Find a lawyer to talk to if you're very concerned about anything in particular; if you avoid consulting counsel about this, realize that you're running a risk no matter how careful you are.
posted by rkent at 6:50 PM on November 3, 2007 [1 favorite]

I guess my biggest confusion is how big time blogs like Gawker, B5 Media, and Weblogs Inc are able to embed Youtube videos without getting into trouble.

Thanks for all the answers. Let me clarify a few things:

Are you hosting these videos on your own server?

We will be embedding them off servers from Youtube and Metacafe.

What exactly is the purpose of including the clips? If it's not for parody, criticism or educational use, you're probably not covered

It is not for parody, criticism, or educational use. It is just for regular blog postings to make a point or just to share a video clip we think is cool.

A little bit like this:this post from Cracked or this one from the Consumerist.

Find a lawyer to talk to if you're very concerned about anything in particular

That's a good point and I'll definitely do that eventually. However, if anyone has found any rules or guidelines I would like to at least take a look at them before speaking with an attorney.
posted by m2002 at 7:20 PM on November 3, 2007

You don't seem to be buying this but what you are looking for doesn't exist. Whatever might be out there would be, simply, opinion. It is absolutely meaningless if you get sued. In fact you are better off without it because there is so much misinformation out there. For example, the idea that there is a "safe" length of clip is simply erroneous. People have been sued for samples seconds in length.

Other sites like you mention are simply blowing off the law. They get away with it for the same basic reason a lot of copyrighted material sits on YouTube unmolested: nobody is bothering to protect that particular copyright.

Take your two examples: that Letterman clip that opens the Cracked article is certainly infringement. Whoever owns that is allowing it or simply not bothering to look for it. If they told YouTube to pull it they would do so. The Consumerist clip is embedding the video that the creators themselves put up on YouTube. Good Magazine is already giving it away for free, and probably have no objection to the Consumerist linking to their site.

Write a cover-your-ass "you figure out if it's legal" disclaimer for your guest submitters, a cover-your-ass "we believe it's fair use but contact us here if it's yours and you object" statement and if someone objects to something pull it. Rights holders will most likely go after who's actually hosting the video, not you.
posted by nanojath at 8:16 PM on November 3, 2007

You are taking the whole video and putting it on your site? You will be sued. Whether you win or lose it will be expensive. Not a good idea, and probably not fair use.
posted by caddis at 11:09 PM on November 3, 2007

I would have thought that by embedding Youtube/Metacafe/Revver clips you'd more or less be covered. You are not hosting, only providing a link to material hosted on a third party service. And those services have specific terms that say the authors MUST have permission to post (how they get away with that I'll never know - clearly about 70% of YouTube is infringing material).

If you get a cease and desist, you can simply say "we assumed, as it was on YouTube that the release was approved", unembed the clip and direct them to YouTube's copyright claim process.
posted by sycophant at 1:51 AM on November 4, 2007