I just finished answering someone on YouTube (in a private exchange, not a comment section free-for-all) who seems to think that any use of copyrighted material in a political commentary or other context is de facto a violation of YouTube’s ToS. That may or may not be true, and I’m sure as a private entity there would be dozens of reasons YouTube’s management could give to take down or mute videos, or suspend an account on the basis that the video maker had used copyrighted material without express permission and licensing fees. That’s really not central to my interest in these musings, though perhaps it should be.
What is central is the net impact of something like the DMCA, and the muting of dissent that can spin off of its exercise, which more or less compels a site like YouTube to take down a video if an allegation of infringement is made by a copyright holder contending (possibly just by pattern matching software rather than any use of human judgement) that a particular piece of video is infringing.
I well understand at least the broad dimensions of the conflict of laws issues that are implicit here. Though not being an IP lawyer, my interpretations may be sketchy. But I’m really more interested in how this may be a contributing factor to the increasing irrelevancy of and difficulty in calling to task, those media conglomerates who may have played a huge role in the levels of distraction that led to the present shambles we seem (at least most Americans) to be awakening to in recent months. Yes, I could have made a video that spelled out in detail my response to Cramer’s statements and obfuscations in my own voice-over narration, and perhaps have presented Cramer and Stewart’s words as on screen quotes. But by my estimate, it would probably have been 60 minutes long or longer, had I chosen that course, at least to “say” what I think I’ve said by juxtaposing audio-only excerpts against images meant to elicit a critical response. That part may be a failure in editing or in concept… I don’t really know how anyone else will interpret my juxtaposings (if that is even a word) — in fact I’m kind of curious just how many disparate interpretations might come of it, if it’s even mildly of interest to any viewer. Please forgive my pretensions… put it down to my seeing too many Kenneth Anger and Luis Buñuel films in my misspent youth.
If you find the time, please tell me in your comments if you think the following video is or is not an example of “fair use” in a political commentary. I’ll grant you in advance that it may be overly subtle and the irony may fly over some heads and strike others as trite or annoying. But try to push away your personal views on this for long enough to tell me, is it or is it not a form of political speech? Also feel free to dismantle the “fair use” rationale offered below the fold, and if this is political speech, suggest anyone who might want to take the case, should Viacom issue a DMCA takedown demand based on the edited audio excerpts.
No need to have scruples about YouTube, the vimeo version is below.
Addendum: here’s a relatively brief (and somewhat jovial) version of at least some of my own arguments for why this constitutes “fair use” — directly from my video description section. Roll tape:
A video commentary on Jon Stewart’s 12 March 2009 interview with Jim Cramer on the Daily Show.
This commentary is almost entirely visual in nature (there are also some audio, percussive effects added to the audio track, and the mild resonance filtering of the original audio is also an intentional part of the commentary.
Upload completed at 2:30pm 14 Mar 2009. Full processed to HD/HQ in multiple flavors by 3:30pm same day. That you, engineering for finally looking like you’re on the right track in finding a good transcoding compromise.
Specs. for the original upload available on request.
“Fair use” rationale:
First, this is a matter of public concern, public policy and one that calls for open discussion in a democracy, thus putting it squarely in the realm of political speech that few can seriously argue is not a compelling First Amendment exercise of free speech. It is intended as dialogue and not as appropriation of intellectual property. If it fails in some eyes as commentary, that is another matter altogether.
The elements that call for a “fair use” exception then, are the less than 3 mins 27 seconds of audio edited from the Daily Show programme for 12 March 2009, described and credited in the description here.
Fair use also requires that one not used too much of someone elses material, relative to the presentation as a whole. What follows is my math:
Let’s say this video is 4 minutes long. It’s really 3 min 27 seconds and change with the Stewart/Cramer recording running under most but not all of that, and with other audio elements added in for emphasis and non-verbal commentary. But I like to round up in the other dude’s favor on these things, so let’s just call it 4 minutes, okay?
Let’s also say that a syllable counts as one word. The old “one one thousand” trick for estimating seconds is 4 syllables/second. So, 4 words x 60 seconds = 240 words/minute. Round that up again to 250 words/minute. 4 minutes? 1000 words, by a generous, rounding up sort of estimated count.
Now let’s recall the old “picture is worth 1000 words” rule of thumb/idiom. There are 6,214 frames in this video. Round that down to 6,000. 6,000 x 1,000 = 6,000,000. Or put another way, the ratio of my “words” to those edited down from a roughly 20 minute interview is 6,000:1.
I really don’t want to have to add closed captions or other subtitles or (ick!) annotations to this, so please see it more or less my way and save us both from legal fees and purchasing ugly cars for lawyers.