Fair Use? Fat Chance

Has everyone forgotten that copyright exists primarily to encourage the public good that can come from intellectual property? That helping to compensate the content creator is a means for getting good ideas out there, not an end unto itself?

The Wall Street Journal reports today that a coalition of "Internet, media and technology companies" is set to announce... a set of guidelines they have agreed on aimed at protecting copyrights online."

According to the Journal, those principles "include using technology to eliminate copyright-infringing content uploaded by users to Web sites, and blocking any infringing material before it is publicly accessible."

The coalition, which reportedly does not include Google, appears at first glance to be much more "media" than "Internet" or "technology." (Microsoft is the notable exception, though Redmond has plenty of its own intellectual property to defend, too.)

Google, meanwhile, has announced its own plan for flagging and removing copyrighted content on YouTube. The YouTube system won't absolutely block copyrighted clips before they go up -- and won't even flag video as protected if the copyright-holder hasn't added it to the "video identification database." But like the coalition principles, the Google/YouTube plan puts all the power in the hands of the copyright-holder -- effectively erasing the rights of end users that Fair Use Doctrine intends.

Here's how the Google/YouTube plan supposedly works:

1. The owner of a copyrighted video can upload it to the video identification database
2. If an uploaded clip then matches part of that video, both the uploader and the copyright-holder are automatically notified.
3. The copyright-holder can then choose to allow the posting, block it or place advertising on the clip and share any revenue that generates.

That all sounds great, until we get to step #3. The whole point of fair use is to ensure that a content owner can't unilaterally censor citation and discussion of that content. If a clip comes down just because an copyright owner says so, then everything from satire to straight news coverage becomes all but impossible in video form.

A much better approach would be for a video-uploader to be notified that a copyright-holder feels the clip infringes on their rights and would like it taken down. The uploader could either consent, or counter that their clip is protected as fair use. At that point, each parties know the other's position, and the copyright-holder can pursue legal action if he/she chooses.

Now I may be missing something -- Google professes to be "committed to supporting new forms of original creativity [and] protecting fair use," and a Wired noted that uploaders would be notified and "have the opportunity to keep the content on the site." Hopefully that's the case, because pre-emptive blocking is a bad idea that undercuts the whole purpose of copyright protection -- regardless of how much Disney, Viacom & Co. would like to think otherwise.