Under such law, “user-generated content” companies are shielded away from liability by a “notice and take down” system. To illustrate, Universal Music Group may notify YouTube regarding a Black Eyed Peas music video, over which they have copyright, uploaded on the YouTube network and that they did not consent to the unregulated coverage and use of such video.
Upon demand, YouTube must take down the video expeditiously. And to be in “safe harbor,” YouTube must have not been aware that the infringing material was there. But under Section 512 (c) (1) (A)(ii), YouTube, in the absence of such actual knowledge of the presence of the infringing material, must also have not been aware of any fact or circumstance from which infringing activity is apparent.
We come to the question: isn't YouTube aware that its users are actually capable of bringing in pirated content into their arena? Aren't previous notifications satisfactory substantiation to alert YouTube of infringing activity as to be considered “facts or circumstances from which infringing activity is apparent”?
The principle of “fair use” has likewise come up in the course of defending YouTube business model. According to Electronic Frontier Foundation, an advocate for the public on digital rights issues, fair use is a limitation on the exclusive rights of copyright holders. The US Copyright Act gives copyright holders the exclusive right to reproduce works for a limited time period. Fair use is a limitation on this right. A use which is considered "fair" does not infringe copyright, even if it involves one of the exclusive rights of copyright holders.
Fair use allows consumers to make a copy of part or all of a copyrighted work, even where the copyright holder has not given permission or objects to your use of the work. The public's right to make fair use of copyrighted works is a long-established and integral part of US copyright law. Courts have used fair use as the means of balancing the competing principles underlying copyright law since 1841. Fair use also reconciles a tension that would otherwise exist between copyright law and the First Amendment's guarantee of freedom of expression.
Fair use is not clearly defined under the law. Hence, cases are decided upon facts and circumstances surrounding them. Under Section 107 of the Copyright Code, four factors are taken into consideration by the courts in determining whether a use of the material is “fair”:
- Purpose and character of the use (courts are in favor of it being fair if it's for noncommercial purpose);
- nature of the copyrighted work (a particular use is more likely to be fair where the copied work is factual rather than creative);
- Amount and substantiality of the portion used in relation to the copyrighted work as a whole (court will balance this factor toward a finding of fair use where the amount taken is small or insignificant in proportion to the overall work);
- Effect of the use upon the potential market for or value of the copyrighted work (if the court finds the newly created work is not a substitute product for the copyrighted work, it will be more likely to weigh this factor in favor of fair use)
The US Supreme Court has described fair use as "the guarantee of breathing space for new expression within the confines of Copyright law".
DMCA and fair-use principle may have saved YouTube from being legally responsible for hundreds of video clips posted by its users daily without the permission of copyright owners but are these measures sufficient to put an end to accounts of copyright infringement in general?
There is no certainty as to the demise of copyright infringement. It seems that infringement is being redefined today with the advance of science and technology as well as culture and arts. The information highway is an open field for artists wherein they can showcase their talents without having to pay for a fee for bandwidth and webspace.
Fairly enough, YouTube is coming up with possible solutions to create better safeguards against pirated content. Aside from affording copyright holders immediate action upon substantial notification, YouTube is likewise opening its doors to partnership deals with other media companies.
At present, the video-sharing site has successfully contracted with leading content providers such as CBS, BBC, Universal Music Group, Sony Music Group, Warner Music Group, EMI Group, NBA, and The Sundance Channel. These arrangements allow YouTube to carry materials copyrighted by such media conglomerates without risking itself to be charged for copyright infringement even under DMCA.
