A guest post from commenter WagCurious: Lawrence Lessig and I have one thing in common: We both hate Yoko Ono. Not because she broke up the Beatles (debatable) but because she is the latest copyright owner to try to limit the application of U.S. copyright law's fair-use doctrine). Yoko sued Premise Media, Rampant Films and Rocky Mountain Pictures for using 15 seconds of her late husband's song "Imagine" in a film about intelligent design. The film, Expelled: No Intelligence Allowed, insists that the universe was created in six days like the Bible says, but that physics were used to do it. You can imagine how litigious Yoko must have felt when she heard that John's song would be used yet again by the religious right, this time to score points against chemistry and physics. She lost her suit against the filmmakers, but it got me wondering just how many video upload sites have restricted the fair use of content due to the threat of lawsuit. I thought a test case was needed. Thus, Indiana Jones and the Big Alligator was created and submitted to YouTube, MSN Video and Current.com. How did the sites handle the "fair use" of George Lucas' baby?
YouTube was a breeze. Though they insist you should "not upload any TV shows, music videos, music concerts, or commercials without permission unless they consist entirely of content you created yourself," they also explain the "fair use" exception to this rule, in detail. They do, however, leave budding filmmakers with this warning, "if the copyright owner disagrees with your interpretation of fair use, the copyright owner may choose to resolve the dispute in court". YouTube knows a thing or two about being dragged into court. But being a sport, they allowed my upload to go live.
Current.com was also a big fan of existing legal doctrine. They let me post both the video itself and a link to the YouTube video. Both show up in the first page of results when you search for "Indiana Jones". I have to remember to send Al Gore a "thank you" note.
MSN Video was not quite as kind. MSN Video would not publish the film (which includes 80 seconds of the "Indiana Jones" theme song). My guess is that they matched the audio track to a library of copyrighted material, since just five days prior someone had no problem adding "Watch Indiana Jones 4 Movie" to the site (a silent film that displays a link to a Myvix rip of the film). And there's the rub.
When automated filtering systems are created in response to the threat of copyright lawsuits the result is that good, honest people get trampled underfoot while the actual pirates simply work around the barrier. You can still find an Indiana Jones rip using MSN Video, but you cannot find my brilliant treatise on tempo as it relates to the work of John Williams. Blame Yoko Ono: Most upload sites do not have the resources to change filtering technology each time a new copyright ruling comes out. Once a draconian filtering system is put in place to please copyright owners, it will take more than imagination to get creators' "fair use" rights back.