Buffy vs Edward vs Lionsgate

January 9, 2013 7:59 PM

Buffy vs Edward: Twilight Remixed (previously), a textbook example of fair use, has been removed from YouTube after Lionsgate's attempts to monetize with ads it were met with resistance by the video's creator. "This is what a broken copyright enforcement system looks like."

If you missed it the first time around, the "popup" version of the video is still available here.

posted by ODiV (37 comments total)

I wish that "fair use" wasn't such a loose garble in the law and that the term had the same sort of legal protections available to copyright originators.
posted by klangklangston at 8:12 PM on January 9

A broken copyright system? Certainly.

We also have a broken patent system, a broken financial system, a broken prison system, a broken law enforcement system, a broken press, and two or three other broken systems that don't even leap to mind at the moment.

I'm not saying the broken copyright system is any more or less important the others, it'd just be nice if some of these things, some of them we've known about for decades, got fixed one of these days. Why can't one party or the other decide to campaign on behalf of basic sanity for a change?
posted by JHarris at 8:13 PM on January 9 [13 favorites]

It really stinks for Jonathan, but in the broader picture this may be a good thing. Every bad policy needs a good case to change it, and the history of this video may be a perfect example. It might be scary along the way, but in many respects the ideal scenario is that this goes all the way to the Supreme Court and he wins. I wish it weren't so, but given how screwed up our copyright system is, that sort of high court ruling giving clarity that this sort of endeavor is okay would be a wonderful development.
posted by meinvt at 8:18 PM on January 9 [1 favorite]

We also have a broken patent system, a broken financial system, a broken prison system, a broken law enforcement system, a broken press, and two or three other broken systems that don't even leap to mind at the moment.

Common denominator seems to be lawyers politicians
posted by mattoxic at 8:19 PM on January 9 [2 favorites]

Oops, missed the first conversation we had about it.
posted by ODiV at 8:25 PM on January 9

Didn't see this video first time around (which is good, because I've actually watched and enjoyed Buffy since, and even recently dipped my toe into the pool of cess that is Twilight out of curiousity).

Yep, copyright (and a lot of things besides, as JHarris suggests): broken.
posted by stavrosthewonderchicken at 8:38 PM on January 9 [1 favorite]

Yeah, JHarris, they all stem from the same root: a broken political system.
posted by tyllwin at 8:40 PM on January 9 [1 favorite]

I wish that "fair use" wasn't such a loose garble in the law and that the term had the same sort of legal protections available to copyright originators.

TBH watching the thing I'm not 100% sure it falls under fair use. Arguably it's commentary or critisism, but I'm not completly sure that covers 6 minute mashup fan-fics made out of clips.
posted by Artw at 10:13 PM on January 9 [1 favorite]

I thought the same thing, then I saw that the U.S. Copyright Office has cited it as an example of fair use. That's not a legal opinion — which is what's always necessary to say definitively — but it's pretty much the best endorsement you can have.
posted by klangklangston at 10:52 PM on January 9 [4 favorites]

You'd think that would be a bit of a tip off in the event of the appeal being read by an actual human.
posted by Artw at 10:59 PM on January 9 [1 favorite]

If this actually goes to court, I expect Jonathan to win. Maybe, if he doesn't, there'll actually be a reason to cry that copyright is broken. Until then, copyright, and the safeguards for fair use, are working.

Yes, the Lenz v Universal did say copyright holders must consider fair use before sending take-down notices, but an important part of this is that considering fair use is not an undue burden, because an indepth investigation is not required. If Jonathan intends to counter-sue based on this, I imagine he'll have difficulty proving that no consideration was given to fair use.

Fair use is something that is fuzzy enough that a judge needs to make the ultimate decision. That's, you know, why we have judges, and not computers making legal decisions.

What I take away from this is a great respect for the lengths to which Youtube is willing to go in order to protect uploaders from take-down spam. At any point in this process, Youtube, could say, "Yeah, well, this is a pain in the ass for us, so we don't give a shit whether it's fair use or not; it's not staying on our servers." Instead, Youtube has a system in place where they're willing to tell Lionsgate to put-up or shut-up.
posted by nathan v at 11:05 PM on January 9

Oh, and btw, Jonathan's argument isn't that this is fair use because it's criticism or commentary, but because it's transformative.
posted by nathan v at 11:08 PM on January 9

I'm not completly sure that covers 6 minute mashup fan-fics made out of clips.

What does fair use cover in your opinion? That's not snark, I'm honestly curious. If a remix of snippets from 36 hours (or 25.8 hours minus commercials) of television programming plus snippets of film out of two or more hours from one or more movies, both of which (for better or worse) constitute popular culture to create a new narrative doesn't constitute a transformative work, what exactly does? Should they have drawn portions of it as stick figures and re-recorded voicework to stay within your boundaries, or just have written it as text, or created their own new IP and thereby avoided any commentary on two overlapping pieces of culture with fairly widely differing viewpoints?
posted by sysinfo at 11:14 PM on January 9 [3 favorites]

What does fair use cover in your opinion? That's not snark, I'm honestly curious.

Well, it's not really my opinion that counts, is it?
posted by Artw at 11:31 PM on January 9

Sorry, just checked the credits and it only samples from the first Twilight film (122 minutes), plus roughly 4 seconds from Harry Potter and the Goblet of Fire. So that's 6 minutes and 3 seconds of footage appropriation/re-use from 1,670 minutes of footage (Buffy + Twilight Part I) for a grand total of 0.36%, and that's maybe too much because it's fanfic?

Well, it's not really my opinion that counts, is it?

Guess there's no point in reading MetaFilter comments anymore then, because who cares what we have to say? I wanted to know what you considered fair, separate of what a court may at some point decide.
posted by sysinfo at 11:36 PM on January 9

If this actually goes to court, I expect Jonathan to win. Maybe, if he doesn't, there'll actually be a reason to cry that copyright is broken. Until then, copyright, and the safeguards for fair use, are working.


Oh, he'd win in court should Lionsgate be idiotic enough to actually sue him for copyright infringement; even in the US court system, it's an absolutely clear example of fair use due to transformation and limited amount of material used; you'd have a pretty good argument for criticism alone too, given the way it shines a harsh light on Ed's stalker-like behaviour.

The problem is, copyright matters largely aren't being decided in the courts any more. That takes far too long, and copyright trolling is proving more expensive and less fruitful than the media companies -and the legal beagles the've farmed the enforcement out to - had hoped. Besides, it takes too long.

No, the fight now is going on at the network and platform level. Why on earth does Youtube even have to have an 'automatic takedown' service under the control of the media companies in the first place? The DMCA is actually a pretty good shield for ISPs and web-hosts, yet the sheer volume of complaints means they've handed over almost the entire decision process over what is and isn't infringing to the media company enforcers - who in this example, and in numerous others, don't even bother reading the counter-claims, let alone consider them.

Then you add on the 'fast track' process which is a private agreement between youtube and the media companies - if the video stays up, but the ad-profit goes to the media company claiming ownership, then they bypass the whole DMCA system altogether. And the users are entirely at the mercy of said media companies deciding what they wish to claim ownership of.

And the reason youtube bows to all this? Because fighting it in the courts is an expensive and lengthy process, and the copyright system is heavily tilted towards the assumption that copyright holders are always right. It wasn't that long ago that viacom was trying very hard to get youtube itself shut down due to its infringing nature. So it's easier for a privately held platform to form these sort of extra-legal agreements that grant broad powers to media companies to seize or delete content than continue to fight for their very existance.

OK, so this is just one website. So what? Youtube can do what they like. Then you bear in mind the same sort of fight is going on everywhere, where isp's host content that the media companies care about - think about how many cyberlockers have started doing what they're told once the FBI were able to seize megaupload's kit in other countries, a case that is looking on increasingly dodgy ground legally, yet has shut the service down and frozen the funds pretty much permanently, despite not a thing being proven in court yet.

Now bear in mind attempts like SOPA, where media companies wanted the ability to force broadband ISPs to blacklist websites they didn't like, seize domain names, block search results and determine who the ad-companies will do business with - all with very little to no oversight by the courts.

They've realised the way to keep the control they desire, and used to have before the internet, is to take control of the middleware. If you can't shut it down at the source, you get veto powers over the infrastructure used to get to it. And best of all, no need to go to court, and deal with messy evidence, or arguing their case - just say 'that's mine', and win by default.

And overall, they're winning.
posted by ArkhanJG at 11:47 PM on January 9 [20 favorites]

Guess there's no point in reading MetaFilter comments anymore then, because who cares what we have to say?

The bounds of fair use aren't set in Metafilter, and neither are any decisions on wether or not this constitutes fair use.

I wanted to know what you considered fair, separate of what a court may at some point decide.

This video, maybe, or maybe not. It does seem like if it were any longer it would be straying into the realm of piggybacking on someone elses work, mainly Joss Whedons TBH, and it doesn't strike me as a 100% obvious instance of fair use.
posted by Artw at 11:50 PM on January 9

I'm not really clear on where I contended that we were a legal arbiter of any sort. Good to know that 0.37% is re-use is probably over the line, though. (I would have used quotes but I'm probably already over my limit.) G'night.
posted by sysinfo at 12:00 AM on January 10

I'm not really clear on where I contended that we were a legal arbiter of any sort. Good to know that 0.37% is re-use is probably over the line, though. (I would have used quotes but I'm probably already over my limit.) G'night.

Hff.

/shakes head head sadly at overly defensive Overly Earnest Copyfighter bullshit.
posted by Artw at 12:09 AM on January 10

Oh for Noodle's sake:

The 4 guidelines of fair use:

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.

This clip is non-commercial - he had no ads up on it, he was not selling it, so that applies to step 1. Much more importantly, it's also clearly transformative, i.e. it is entirely used for a different purpose than that of the original work. You would not substitute watching Twilight episode 1 for watching this as an equivalent film; it is critical commentary, and arguably even a parody. Even without the buffy clips, you can easily argue that, but with them included the work is absolutely clearly of a different character and purpose from the original.

Step 2, is whether the work is factual or creative; (arguments over whether databases of info are copyrightable, etc). This one doesn't apply to this case.

Step 3 is also key - "if the secondary user only copies as much as is necessary for his or her intended use" is further advice here; it's hard to argue that the amount of material used was not de minimis.

Step 4 - well, it's pretty hard to argue that people would be happy to buy this instead of twilight 1.

The 4 steps are guidelines not hard tests, but I'm finding it pretty hard to think of something that is more firmly protected under fair use for the reasons above, i.e. something that re-uses existing copyrighted work but is still non-infringing. Maybe a news channel doing the exact mashup for a story about stalkers in popular entertainment? Oh wait, it's already been used for that purpose.

Asserting "oh, it strays into the realm of piggybacking on someone else's work" is weak sauce. Obviously, we're not lawyers, and this is not a court. We're entitled to our opinions though, and if you're going to say that isn't not fair use, you really to come up with a better reason than 'nu-uh it isn't' if you want to be taken seriously.
posted by ArkhanJG at 12:09 AM on January 10 [4 favorites]

Well, fuck, sorry for not automatically agreeing with you.
posted by Artw at 12:12 AM on January 10

sysinfo: Fair use is not determined solely by how much of a source is used. You can get dinged for tiny uses (sampling, uggh). You can get away with use of the whole thing. It's a factor, but only a factor.

Arkhan: Before we get into anything else, let's get one thing clear: Youtube is not an ISP. They have no contractual obligation to serve your uploads. They have no contractual obligation to show your uploads ad-free. Youtube can take stuff down for no reason at all. Clearly, the number of videos on Youtube require Youtube to have a policy for responding to take-down requests that is as streamlined and automated as possible. Since they have no legal obligation to the uploaders, it's to be expected that they're going to err on the side of those requesting take-down. There is no reform imaginable that would change this situation, save the utter elimination of copyright, or the advancement of protections for uploaders to Youtube. The exact volume of complaints is really irrelevant, because the resources to examine even a single complaint, and risk that a judge doesn't see things the same way, are too many.

There is definitely a problem that a powerful client can bulldoze people who can't afford lawyers. This isn't specific to copyright. The potential for it exists in any civil suit. It's not an example of copyright being broken so much as it is an example of our legal system being broken. Again, it's hard to imagine a wise way to reform this. Pro bono representation (as is happening in Jonathan's case) seems to keep it from getting too egregious though.

If you don't want your video to be taken down, don't use Youtube or any either free content host. Don't use a cheapie cyberlocker. You need a contract that says that they won't take it down without a court order, and nobody's going to give you that unless you give them money (and let them take a look at the content you'll be providing, with a new contract every time you change that content). That's no guarantee that they won't-- people break contracts all the time-- but it's the only way to get damages, and it's the way to get me to say, "Dude, that's fucked up, it should be against the law-- oh it is."

Not a fan of copyright, but this specific instance is not what Jonathan is presenting it as.
posted by nathan v at 12:30 AM on January 10 [2 favorites]

Yeah. I get that he's frustrated, but honestly he should at least have a positive callout to youtube for not being a blocker here. They have no obligation to serve 4 million views of an ad-free video, and there are enough examples out there of paid hosts just shutting down remotely controversial accounts that Google/Youtube deserve some accolades here for not taking the easy way out.

No, the fight now is going on at the network and platform level. Why on earth does Youtube even have to have an 'automatic takedown' service under the control of the media companies in the first place? The DMCA is actually a pretty good shield for ISPs and web-hosts, yet the sheer volume of complaints means they've handed over almost the entire decision process over what is and isn't infringing to the media company enforcers - who in this example, and in numerous others, don't even bother reading the counter-claims, let alone consider them.

This is uncharitable at best, and arguably flatly untrue depending on how I read you? They've automated the process because the DMCA provides an automation-friendly process:

(B) upon receipt of a counter notification described in paragraph (3), promptly provides the person who provided the notification under subsection (c)(1)(C) with a copy of the counter notification, and informs that person that it will replace the removed material or cease disabling access to it in 10 business days; and

(C) replaces the removed material and ceases disabling access to it not less than 10, nor more than 14, business days following receipt of the counter notice, unless its designated agent first receives notice from the person who submitted the notification under subsection (c)(1)(C) that such person has filed an action seeking a court order to restrain the subscriber from engaging in infringing activity relating to the material on the service provider's system or network.

The application of ads with proceeds going to the copyright holder are perhaps a one-size-fits-all recommended settlement, but as outlined in this article the uploader still has recourse as YT fit this within the claim-counterclaim process. And just to clarify, the notice-and-takedown process is also strictly required (as-is, i.e. take down first and notify second) for youtube to qualify for Safe Harbor under the DMCA.

I agree this entire system is rather messed up, but if you disagree that youtube is acting quite correctly in this, please provide specific examples of where they're going above and beyond the DMCA and causing further harm.
posted by pahalial at 1:28 AM on January 10

"They have no obligation to serve 4 million views of an ad-free video, and there are enough examples out there of paid hosts just shutting down remotely controversial accounts that Google/Youtube deserve some accolades here for not taking the easy way out."

I'm a bit meh on the let's hug YouTube thing here — while they're providing free video streaming, they're also making money on it. It's in their interests not to alienate content providers, even ones who decline to have ads placed next to their stuff.
posted by klangklangston at 1:33 AM on January 10 [1 favorite]

Youtube is not acting correctly in that they are completely ignoring a legally sound counter-claim and doing exactly and only what the "copyright holder" wants.
posted by flaterik at 1:34 AM on January 10 [2 favorites]

(And their terms of service allow for the uploading of such content. Just because it's free and nice doesn't mean that they are not bound by their own TOS when inconvenient)
posted by flaterik at 1:35 AM on January 10

Well, fuck, sorry for not automatically agreeing with you.

Artw, to be fair, you were asked to elaborate on why you disagreed and you didn't really do so that I can see. I don't think this is a case of someone mad that you didn't "automatically agree with them" so much as it's a case of someone frustrated because they tried to engage in a conversation with you and all they got back was "meh, whatever."
posted by EmpressCallipygos at 4:19 AM on January 10 [4 favorites]

Another mashup artist, Kelvington, who is known for his Star Trek and Doctor Who shorts, recently posted his final video on YouTube. Apparently, the Beeb is just as bad as Lionsgate when it comes to mindless takedowns.
posted by ChurchHatesTucker at 6:36 AM on January 10

It doesn't strike me as an open and shut case of fair use, but what is and isn't fair use is often suprising. I don't want it or not want it to be fair use, and I don't really want to stand in as a proxy for anyone who does.
posted by Artw at 7:55 AM on January 10

And let's face it, "That's not snark, I'm honestly curious" was a lie and I was a fool to respond in any way. Exiting thread.
posted by Artw at 7:57 AM on January 10

And again, it is literally a textbook case. If it's good enough for the U.S. Copyright Office to cite by name, that should be good enough for you. That you don't think it's open and shut means that people like Lionsgate are winning at distorting the public view of what fair use is.
posted by klangklangston at 7:59 AM on January 10

Youtube is not acting correctly in that they are completely ignoring a legally sound counter-claim and doing exactly and only what the "copyright holder" wants.

Again, how do you mean? I read the article and Youtube's take-down process is literally following the letter of the law - copyright claim-> takedown -> notification -> counter-claim -> notification and 10-14 day waiting period. None of that is optional for them.

If you mean youtube's adding of advertising, I think that was a brilliant piece of negotiation on youtube's part to keep as much user content up as possible. When the likely alternative would have been a zero-tolerance takedown policy from copyright owners on e.g. the millions of music videos on youtube, they did an excellent job setting up a reasonable alternative that would have comparatively minimal impact on uploaders who are erroneously targeted.
posted by pahalial at 8:19 AM on January 10 [1 favorite]

nathan v: "Since they have no legal obligation to the uploaders, it's to be expected that they're going to err on the side of those requesting take-down. There is no reform imaginable that would change this situation, save the utter elimination of copyright, or the advancement of protections for uploaders to Youtube."

There are many other jurisdictions, with many different copyright regimes. Notice-and-takedown is not the only way to allow safe harbour for intermediaries. Here in Canada, hosting companies have unconditional safe harbour. If a copyright holder wishes for something to be taken down, there's a notice-and-notice mechanism so they can obtain the identity of the copyright violator, and then they can sue.
posted by vasi at 8:28 AM on January 10

klangklangston: "And again, it is literally a textbook case. If it's good enough for the U.S. Copyright Office to cite by name, that should be good enough for you. That you don't think it's open and shut means that people like Lionsgate are winning at distorting the public view of what fair use is."

I think this bears repeating. The U.S. Copyright Office, which is not exactly champing at the bit to stick it to Big Media, directly cites Buffy vs. Edward as an example of a work that is clearly fair use and should not be taken down under current law.
posted by Holy Zarquon's Singing Fish at 1:28 PM on January 10 [1 favorite]

Again, how do you mean? I read the article and Youtube's take-down process is literally following the letter of the law - copyright claim-> takedown -> notification -> counter-claim -> notification and 10-14 day waiting period. None of that is optional for them.

I have no objection to their process, the takedowns of obvious violations, or the clever monetization option. In the vast majority of cases people are very clearly infringing and youtube absolutely must do a take-down or ad injection.

What I object to is that, as has been pointed out repeatedly, this literally a text-book case of fair use, which makes the "process" appear to be a pointless charade in the (admittedly rare) cases of "yes you own copyright but in this case that doesn't matter".

This is certainly an edge case, and I would fully expect it to have to go to appeal step because the volume of claims is going to preclude the level of attention this requires. But it seems to have gotten the attention, and then they made the wrong choice.
posted by flaterik at 3:00 PM on January 10

EFF: Copyright Vampires Attempt to Suck the Lifeblood Out of Fair Use Video
posted by the man of twists and turns at 3:05 AM on January 11

According to the main link the video had been reinstated by YouTube with no explanation less than 48 hours from the original post.

So it appears either parts of the take-down process are indeed optional or they quickly received a response from the "party that sent the takedown notification". I'm really curious which it is. The EFF article linked directly above seems to indicate it was YouTube "choosing to stand up for its user", but doesn't provide any details.
posted by ODiV at 2:50 PM on January 14