If you post on an online service and tap a snippet of another’s content and you do so to provide a critique or commentary of it, well, legal minds might argue that’s fair use, right? But what if a copyright challenge and take-down notice crops up, well, to whom would you appeal and what kind of response might be equitable — shy of litigation? John McKelzey’s struggles with YouTube over a hip-hop review he put on a video channel he created there, as reported by Daily Dot then by Mashable, not only raises intriguing issues of law, it also provides a reminder: Nothing’s free. And, ultimately, big business interests can trump others.
McKelzey was confused because he thought his review was defensible as a fair use. As the 1961 Report of the Register of Copyrights on the General Revision of the U.S. Copyright Law says, his was an activity in which there were “quotation of excerpts in a review or criticism for purposes of illustration or comment.” He saw his work as akin to that of the late, Pulitzer Prize-winning critic Roger Ebert, who pioneered the practice of showing clips during his broadcast movie reviews.
But McKelzey’s video had been flagged by YouTube, and, further, a take-down notice, under the Digital Copyright Millennium Act, had been issued against it by Universal Music Group, owner of some of the masters by Eric B. and Rakim.
McKelzey got a second chance to get his contested material reconsidered when YouTube recently changed its Content ID system, allowing a user to appeal directly with the copyright holder as he did with Universal. No luck.
And worse: McKelzey is on rocky grounds with YouTube. He now has earned an infringement strike against him in its two-strike system so he runs the risk that he will be banned from the Internet’s largest online video service.
Could he have avoided these woes? Well, Entertainment Law practitioners dwell on the fine print in agreements, right? And it turns out that there’s posted language on the YouTube site describing its preferential handling of materials by those specified copyright owners with which it has cut deals.