Monday, December 8, 2008

Fair Use on YouTube

...does not exist. In the wake of enormous lawsuits from old media companies, YouTube has been cracking down on copyright violations with a vengeance, deploying sophisticated audio and video fingerprinting systems to detect and automatically remove infringing content. A video I created and uploaded was removed by this system, and I can't help but feel angry my fair use rationale was completely ignored. Internet video brings with it the dream of blowing away many of the practical limitations on the free expression of ideas in the video medium. Sadly, in bowing to old media interests, YouTube has turned the power of a digital video distribution system against content producers, deploying fully automated mechanisms for enforcing old media copyrights while completely ignoring fair use rationale.

Let's begin with a little bit of background on my video...

I posted a "remix" of the video of Rihanna's song "Umbrella." My remix omitted all verses except the first, and looped the chorus... over and over and over again. What was that chorus, you ask?
You can stand under my umber-ella
You can stand under my umber-ella ella ella eh eh eh
Under my um-buh-rella ella ella eh eh eh
Under my um-buh-rella ella ella eh eh eh
Under my um-buh-rella ella ella eh eh eh eh eh eh
The comments of my video made note that when I first heard the song, it was as if I was channeling Christopher Walken, except rather than the song needing more cowbell, it needed more "ella ella ella eh eh eh". Of course, this wasn't quite the truth, I actually stole the idea from a video which did similar chorus looping on a Nirvana video with a similarly repetitive chorus. My reaction was both Kurt and grunge are dead, so why not pick on a song that's more deserving, say one by a present-day pop idol.

But more than ripping off an idea from another YouTube video, the heart of me making this video lay in, well, yet another YouTube video. Some years earlier I had seen a music video by British rapper Scroobius Pip, for the song "Thou Shalt Always Kill." It's loaded with all sorts of observations about music itself, perhaps culminating in a long rant in which the artist names a long list of sacred cow bands like the Beatles, Led Zeppelin, The Beach Boys, and... Nirvana, adding after saying each one's name that they're "just a band." If you're a fan of, well, music, chances are at least one of your favorites is somewhere in that list, if not several. Scroobius Pip just wants you to keep it in perspective and not put recording artists on pedistals no matter how great they are or were. Such a tirade is repetitive in nature, however the totality of the expression is anything but. That's the sort of repition I can enjoy. Rihanna's is not.

All that said, despite the awesomeness of the "Your sacred cow is just a band" chorus, it does not stick out in my mind. My favorite part in the video is when Scroobius Pip sticks his face on a copy machine, and begins singing:
Thou shalt not make repetitive generic music!
Thou shalt not make repetitive generic music!
Thou shalt not make repetitive generic music!
Thou shalt not make repetitive generic music!
The first time I heard Umbrella was after having heard this chorus, and it immediately stuck out in my mind as one of the foremost examples of repetitive, generic music. After seeing the Nirvana song with a looped chorus (even though I kind of like Sliver) I decided I had to do that to Umbrella.

So I did. I edited the video, splicing up the various times the chorus is repeated in various parts of the video into small chunks, and producing random smatterings of those chunks. The result is two minutes of random clips from the video backed by a nonstop "ELLA ELLA ELLA EH EH EH" sound track.

I posted the resulting video to the social news site Reddit, and while it wasn't received very well I was happy to see that someone responded to my post with "Thou shall not make repetitive generic music Thou shall not make repetitive generic music Thou shall not make repetitive generic music." Upon seeing this I felt that what I had created was in some way an artform which had managed to ineffably communicate the sentiments of its inspiration.

The video was up for about two months, receiving a meager 2,000 views. I would occasionally go back to it and watch it again, wondering how much it would offend Rihanna if she ever saw it, not that I have anything personal against Rihanna. But I would like to see how an artist who records such repetitive music would react when such repetition is made painfully clear.

However, today I received the following e-mail from YouTube. It seems their audio fingerprinting system had analyzed the song's chorus looped over and over umpteen times and been able to conclusively identify it. YouTube sent me the following message:
A copyright owner has claimed it owns some or all of the audio content in your video Rihanna - Umbrella (Extended ELLA ELLA EH EH Mix). The audio content identified in your video is Umbrella by Rihanna. We regret to inform you that your video has been blocked from playback due to a music rights issue.
At the bottom of the e-mail they gave me the option to visit the Copyright Notice page of my account if I felt there had been a mistake. I hope from reading my sentiments earlier in this post you've gathered I feel I have a pretty good fair use rationale. I felt my version was an obvious parody which painfully hits the listener over the head with how highly repetitive the song is.

So I hopped onto YouTube's Copyright Notice page, and entered a dispute against the automated copyright claim. YouTube had conveniently provided me an option on the form to select: "This video uses copyrighted material in a manner that does not require approval of the copyright holder. It is a fair use under copyright law." For my fair use defense, I entered the following:
I claim fair use as this video is a parody of the original work. It has been remixed/altered to highlight, exaggerate, and ridicule the highly repetitive nature of the source material.
Of course there was far more to it than that, but I thought this would be good enough to warrant some human attention. I noted an ominous warning: if my fair use rationale were not accepted, my video would be permanently deleted. Noting this, I clicked submit.

No sooner than clicking the button was I notifed that my fair use argument had been rejected and my video deleted:
In response to your dispute of a content identification match, UMG has reviewed your video Rihanna - Umbrella (Extended ELLA ELLA EH EH Mix) and confirmed their claim to some or all of its audio content. As a result, your video is no longer available.
What the hell? My fair use claim was forwarded to a record label's automatic fair use claim-rejecting robot, and automatically rejected. My thoughts as a video producer were completely ignored and my content was automatically removed from the system. At no point in this process did any human ever review any part of my defense. Instead completely automated systems mechanically crushed any semblance of fair use rights I thought I had.

And what's the point? The automated systems have clobbered my fair use rights, but I'm free to retaliate by just uploading the video again. And so I have:

...except this time I'm taking a stand and actively asserting my fair use rights. Perhaps if I draw enough attention to this video I can actually get in touch with a human at YouTube who is able to do something more than automatically reject my fair use rationale.


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