“Fair use” is not a loophole

I hear (via Ingram) about Yet Another Popular Video Clip Show being launched by Digg and Revision3: The Digg Reel.Like TVA’s Vlog (which I wrote about last week in The Gazette), which was the focus of my piece last week, The Digg Reel relies strictly on the Fair Use exception to copyright law, and shows “short” clips of videos with “analysis.” In fact, one of the videos is a clip from The Daily Show with Jon Stewart, and bizarrely credited to the Huffington Post.

Judging from their first episode, I can’t imagine sitting through it on a regular basis, for the following reasons that seem to be part of some formula for all such shows:

  1. There’s no analysis. It’s just some bimbo giving the title of the clips (she forces herself to use the exact titles as submitted by Diggers, as if that’s somehow important), the number of Diggs (despite the fact that we can see it on screen, and again we don’t care) and a short description of the video, which sounds like it was written by an Academy Award presentation intro writer. Instead of the show’s producers making their own comments, which might be interesting, they just read selected comments attached to the Digg articles (most of which aren’t that interesting).
  2. I hate it when people credit screennames, especially in video. Not only does it sound stupid, but if people aren’t going to give their real names, why should we credit them?
  3. I don’t need help to discover the Daily Show, or TED, or Transformers, or Bill Gates, or Associated Press. I want to discover things I’ve never seen before, obscure web artists with good quality videos. If the show is going to artificially limit itself to only the most popular Digg videos as opposed to, say, exercising any editorial control, then it’s going to be nothing more than a popularity contest (and, eventually, porn).
  4. She’s not funny. Period. Sorry. And the only thing worse than unfunny hosts is unfunny hosts who think they’re hilarious.
  5. The format for this show is mind-numbingly simple, and yet there are mistakes. Videos are credited to the servers they’re found on instead of their creators (Daily Show credited to Huffington Post, Associated Press to Breitbart, others to YouTube). Comments aren’t read properly.

But the most important objection I have to this show is that, like Vlog and all the others, it blatantly tries to profit off other people’s work. Permission is not sought before these videos are aired. No payment goes out to their creators for a license to rebroadcast. Profits from the show aren’t shared.

And in my opinion, that’s copyright infringement. And I’m not the only one who thinks so.

According to Revision3 CEO Jim Louderback and his lawyers, it’s fair use (though he’ll gladly take down the Daily Show clip if Viacom asks) because they analyze it and provide short clips.

The problem is that these producers (and, I suspect, their lawyers) aren’t familiar enough with fair use (U.S.) and fair dealing (Canada) copyright exceptions. Yes, news and commentary are covered under these provisions, however they only do so under certain conditions:

  1. The purpose and character of the use, including whether such use is of a commercial nature: FAIL. The show is clearly a for-profit venture (even including commercial advertising) whose main selling point is the videos themselves, not analysis of them.
  2. The nature of the copyrighted work: FAIL. There is no overriding public interest in seeing a video of a rabbit opening a letter. There is no reason to believe these videos shouldn’t have copyright protections.
  3. The amount and substantiality of the portion used in relation to the copyrighted work as a whole: FAIL. A 30-second clip from a motion picture or an hour-long TV show is one thing. But a 30-second clip of a 35-second video is a substantial portion and is not covered under fair use.
  4. The effect of the use upon the value of the copyrighted work: FAIL. If I can watch these videos here, there’s no reason to seek them online and buy them or look at the ads whose profits might actually go to the videos’ creators.

There’s this mindset among some producers that there’s a magic 30-second or 45-second rule that simply doesn’t exist in law. That as long as video clips are shorter than this length, that as long as they’re credited, and as long as there’s some random chatter about the videos, that their show is news and the use of videos qualifies as fair use.
It doesn’t.

And even if it did, it’s morally wrong to profit off other peoples’ work like this. Simply offering to remove videos after the fact is both ridiculous (what are they going to do, black out portions of existing episodes?) and shows a blatant lack of respect for people’s rights.

I expect this kind of thing from big media. I don’t expect it from Digg.

(You Digg?)

4 thoughts on ““Fair use” is not a loophole

  1. Peter

    “I hate it when people credit screennames, especially in video. Not only does it sound stupid, but if people aren’t going to give their real names, why should we credit them?”

    Does this apply for bloggers as well ;)

    Reply
  2. Jeremi

    “But the most important objection I have to this show is that, like Vlog and all the others, it blatantly tries to profit off other people’s work. Permission is not sought before these videos are aired. No payment goes out to their creators for a license to rebroadcast. Profits from the show aren’t shared.”

    Hate to burst Your bubble, but they don’t make money off it.

    I would sort of agree about the copyright infringement, but they merely show videos that were free to begin with, so no one profits,no one loses, it’s all for the good of the community, where’s the harm in that?

    Reply
  3. Fagstein Post author

    That’s why I said “tries to profit.” Just because it’s a financial failure doesn’t mean they’re exempt from paying expenses, any more than a money-losing business can simply forgo paying its electricity bill.

    As for the videos being “free,” that’s not an exemption from copyright rules. Besides, videos from Comedy Central, for example, are shown with money-generating advertisements.

    Finally, I don’t see how this is “all for the good of the community.” Just what altruistic cause does this project enhance?

    Reply
  4. Charlene

    I suspect they credit screennames because just reciting comments without some kind of attribution isn’t just copyright infringement: it’s steering awfully close to plagiarism.

    Reply

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