YouTube: A Copyright War Zone

By Cristina Luiggi

Consider these three videos that were posted on YouTube:

1. A girl playing the piano and singing the Christmas carol, “Winter Wonderland.” (See this YouTube video)
2. A man teaching sign language to the 1980s song, “Waiting for a Girl Like You.”
3. Music video of A-Ha’s “Take On Me” without the actual lyrics, but with a man singing about what’s happening in the video. (A genre dubbed “literal videos”.)

All three videos were removed from the site because of copyright infringement according to a New York Times article. These removals are part of an ongoing conflict between Google-owned YouTube and Warner Music Group (WMG), which owns the copyright to all three songs.

The dispute began when YouTube refused WMG a portion of the advertising revenue in exchange for permission to stream its music videos. Not only has WMG removed its artists’ official music videos, it has extended the measure to all user-generated content that uses its music.

According to the United States Copyright Office, the fair use doctrine of the U.S. copyright statute has a four-part test to determine whether the copyrighted material was used fairly. It includes determining the purpose of the work – whether it’s for personal profit or the advancement of knowledge. Whether or not a work has been transformed considerably from the original version is also evaluated in copyright cases.

A lawyer from an Internet civil liberties group argued in the NYT article that videos such as the “Winter Wonderland” video fall under fair use because “they are non-commercial and include original material produced by the user.”

Although the user who posted the video does not make money off it, lawyers from WMG argue that Google does make money from the site and therefore the video should be considered commercial.

Question: Should these videos be considered commercial because the website that hosts them makes money off of them even though the users who generate them do not get a dime? How “original” should they be so they’re not accused of copyright infringement?