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Copyright, the DMCA, and Fair Use:

What is Fair Use and Has it Been Chilled?

Brooke Scott

Department of Communication, University of Nebraska at Kearney

JMC 414: Communication Law

Ford Clark

December 17th, 2020

Copyright, the DMCA, and Fair Use:

What is Fair Use and Has it Been Chilled?

In the world of copyright law, fair use refers to the “legal doctrine that promotes freedom

of expression by permitting the unlicensed use of copyright-protected works in certain

circumstances” (U.S. Copyright Office, 2020, para. 1). Without this essential principle, copyright

law would likely be overwhelmingly stringent, limiting the creation of new ideas and having an

overall chilling effect on free speech. However, in recent years the power of the fair use defense

has taken hits again and again as content platforms and interpretations of the law tend to favor

the copyright holder in an unfair way.

While fair use had already been recognized by the courts for decades prior, the official

laws surrounding fair use were added to the Copyright Act of 1976 (Ross et al., 2020, p. 449).

The idea behind the fair use doctrine was to balance the rights of the copyright holder with the

free speech rights of the people in a fair and balanced way. To determine what type of use will

fall under a fair use defense, the “certain circumstances” allowing for the use of copyrighted

material as defined by the U.S. Copyright Office (2020) include “criticism, comment, news

reporting, teaching, scholarship, and research” (para. 1). Although fair use can be difficult to

define in a precise way, there are four factors that are used by courts to evaluate if a use will

qualify as a fair use of the material (Ross et al., 2020, p. 449).

The first of these factors is “The Purpose and Character of the Use” (McCord, 2019, p.

155). This factor is meant to determine if the material’s use leans toward a non-profit use (i.e.

education) or a commercial use. The closer it falls to a non-profit use, the more likely the court

will favor the defendant. Another factor is whether or not the use of the material was

transformative. According to McCord (2019), transformative use is defined as “one that serves a
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new and different function from the original work and is not a substitute for it” and that “adds

something new, with further purpose or different character … with new expression, meaning, or

message” (p. 155). A transformative use of a work is very likely to be favored by the court as fair

use. A case example is a 2012 trial where the animated television show South Park aired a

parody of the viral music video “What, What (In the Butt)”. At the end of the resulting trial, the

court determined that this parody was a fair use of the copyrighted material because South Park’s

intention was “to comment on and critique the social phenomenon that is the ‘viral video’” (Ross

et al., 2020, p. 450).

The second factor is known as the “Nature of the Work Used”, which dictates that fair

use is more likely to apply to the dissemination of informational works than works of

entertainment. The courts recognize that there is a benefit to the public when factual information

is widely distributed (Stim, 2019). This factor also states that an unpublished material is more

likely to not qualify as fair use when compared to a published work, and unpublished works are

given more protections in the courts (McCord, 2019, p. 156).

Factor three is the “Amount and Substantiality of the Portion Used”, which asks two

questions. First, how much of the copyrighted material was used by the defendant? The court can

look at the percentage of the work that was used and other factors such as how many seconds or

how many words were used by the defendant. The court is using these numbers to determine if

more of the material was used than what was necessary to get the point across (Ross et al., 2020,

p. 451). Second, was the piece of the original work used necessary for achieving the purpose of

the defendant? The defendant must have a justifiable reason for the piece of content that was

used (McCord, 2019, p. 156).

The fourth and last factor applied to fair use cases is “The Effect on the Plaintiff’s

Potential Market” (U.S. Copyright Office, 2020, para. 5). Court will often take into consideration

the market of the original work versus the defendant’s use of the work. Will the defendant’s use

of the copyrighted material take away profits from the original piece? Courts also recognize that

sometimes a transformative use of the material can actually increase the market and profits of the

copyright holder (Ross et al., 2020, p. 452).

In 1998, Congress recognized that additions needed to be made to the Copyright Act of

1976 to better accommodate the growing platform of the Internet. This was called the Digital

Millennium Copyright Act (DMCA), which lays out a number of rules regarding digital

copyrighted material. For example, the DCMA prohibits any software that has the purpose of

evading copyright law. Another part of the DMCA dictates that internet service providers (ISPs)

are not vulnerable to copyright infringement lawsuits when their users post copyrighted material

(Ross et al., 2020, p. 435).

According to the DMCA, ISPs and content-sharing sites like YouTube are protected from

copyright suits if the copyrighted work is removed by the site after they are alerted to the

copyright infringement by the copyright holder. This is known as a takedown request. In order to

be within compliance of the DMCA, the website must have a designated employee to handle

takedown requests and alert users of the site’s policies surrounding copyright (Ross et al., 2020,

p. 453). The site must also comply with takedown requests that are received if the claiming party

offers the URL of the work that they claim is infringing on their copyright. Even if the user who

uploaded the content is able to later prove that their content was fair use, and therefore protected

from copyright laws, the user cannot sue the ISP or website that took it down. Under Section 512

(Trendacosta & McSherry, 2020, para. 3), websites for video-sharing such as YouTube or Vimeo
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are also protected from suits brought by copyright holders when a user of the website posts their

copyrighted material. These protections apply as long as the website didn’t know the work was a

copyright infringement, no money was made by the website from the content, and the takedown

request is pursued by the site. These are known as safe harbor protections (Ross et al., 2020, p.

453).

As recently as July of 2020, Congress has held hearings focusing on whether the DMCA

is still a valid and viable method of protecting copyright holders, fair use, and free speech on the

Internet (Madigan, 2020, para. 1). The way that fair use and the DMCA are implemented is

becoming increasingly important for both content creators and consumers of content alike. As

stated by Trendacosta & McSherry (2020), “Without fair use, much of our common culture

would be inaccessible, cordoned off by copyright. Fair use creates breathing space for innovation

and new creativity by allowing us to re-use and comment on existing works” (para. 2). Without

the concept of fair use, it would be possible that many of our average everyday activities could

be considered copyright infringements.

The DMCA has become an almost insurmountable issue for content creators on platforms

such as YouTube due mostly to the provision within Section 512, as described earlier. Section

512 protects websites from owing financial compensation when their users break copyright laws

as long as certain criteria are met by the website. The principle of Section 512 is a good one.

Websites that host user-generated content should not be punished when their users upload

obviously copyrighted material, as long as a good-faith effort is made by the website to prevent

its distribution. It is also important that the rights of the copyright holder are balanced by the

opportunity for users to challenge the overreach of the website/copyright holder; otherwise it

would be entirely possible for free speech to be chilled. If Section 512 did not exist, then the
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weight of copyright liability would have likely been too great for most content-sharing platforms

to bear (Trendacosta & McSherry, 2020, para. 4).

This issue with Section 512 is that the incentives offered to platforms that take action

against copyrighted material are often so great that it is often much easier for the platform to

remove all content that is claimed by a supposed copyright holder, regardless of the legitimacy of

the claim. Platforms tend to take a ‘remove now, ask questions later’ approach that is hugely

detrimental to the livelihoods of content creators as well as their right to free speech. The

likelihood for false takedowns of material that are fair use is almost a guarantee. If a copyright

holder simply files a claim for a DMCA takedown against a work on YouTube, then the video is

automatically removed, the channel owner must complete a required course about copyright law

in order to continue uploading, and a “strike” is placed on the account of the user. After an

account gets three strikes, YouTube removes the account, takes down all the user’s videos, and

bans that user from creating new accounts (Mir et a., 2017, para. 7). This would apply even if the

content used copyrighted material in a way that constitutes fair use.

YouTube does offer users who are given a DMCA takedown certain options. A user can

submit a counterclaim to YouTube and the copyright holder, arguing against the validity of the

DMCA takedown. The copyright holder then has two weeks to file an official copyright

infringement suit against the creator. If the rightsholder does not sue, then the strike is removed

and the video is reuploaded. If a lawsuit is filed, then the video remains down and the strike

remains up until the lawsuit is finished (Mir et a., 2017, para. 14). The idea of engaging an

entertainment rightsholder company worth millions or even billions of dollars in a legal battle is

something that sounds very unappealing to the vast majority of independent creators, especially
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if faced with expensive court fees and other costs. It’s no wonder that most creators just let the

DMCA takedowns remain.

There is also another scenario that Section 512 can create on YouTube. Recall that one of

the possible exceptions to copyright under the fair use doctrine is material that’s designed to

criticize or comment on the original work. When users create content critical of a piece of media,

including media created by other YouTube users, and the work is transformative, then that work

is likely fair use. However, the current implementation of Section 512 makes it all too easy for a

creator who does not like criticism of their work to file a DMCA takedown. There are little to no

negative consequences for somebody who files a false DMCA takedown on a work that is fair

use, so nothing is stopping disgruntled creators from putting copyright claims on all content that

is critical of the, and having it removed.

The seemingly one-sided approach that content-sharing platforms give to DMCA

takedowns is likely creating a chilling effect on digital free speech. Content creators are often

afraid of even attempting to use copyrighted material in a fair use way for fear of channel

removal or a tedious and expensive court battle. How can content and new ideas flow in an

environment such as this? The current implementation of the DMCA results in abuse of its

protections, and the outcome is very close to becoming a form of legal censorship (Sunstein,

2020). The sheer number of videos uploaded to sites like YouTube — estimated to be 500 hours

of video uploaded every one minute (Clement, 2020) — means that manual review of copyright

claims by a human being is impossible. According to a recent study, the researchers “found

reason to be concerned when human review is replaced with a high degree of automation” and

that “automated notices… were sent by sophisticated rightsholders with a strong knowledge of

copyright law, yet nearly a third of the notices raised questions about their validity, and one in
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twenty-five apparently targeted the wrong material entirely” (Urban et al., 2017, p. 116). It is a

nearly impossible task for an automated bot to determine if a copyrighted material constitutes

fair use.

There are two subsections of Section 512 that are intended to give users more protections

from the scenarios described above. In subsection 512(g), the right for users targeted by a

DMCA takedown to send a counterclaim is defined (Trendacosta & McSherry, 2020, para. 7).

However, because a counterclaim can lead to a court battle, most users choose not to issue one,

even if their work was a clear example of fair use. Subsection 512(f) was meant to “deter

takedowns targeting lawful uses by giving those harmed the ability to hold senders accountable”

(Trendacosta & McSherry, 2020, para. 8). However, once again, the risk will often outweigh the

reward of any user who wishes to hold a large company accountable for an invalid takedown

request. Because this subsection is almost never actually put to use, and false claims are rarely

ever punished, this subsection does very little to deter an unjust takedown that involves fair use.

A particularly extreme and dangerous example of how the DMCA takedown system can

be taken advantage of by those with ill intent took place in Nebraska in 2019. A man by the

name of Christopher Brady of Omaha, NE, made several knowingly false copyright claims on

mid-sized YouTube accounts. He was not the copyright holder of any of the material within the

videos, and he was fully aware of this. YouTube then removed the targeted videos without

question, as is the usual process. Brady would then message the account owners and extort them

for money, sending them messages similar to this: “Our request is $300 PayPal. Once we receive

our payment, we will cancel both strikes on your channel… If you decide not to pay us, we will

file a 3rd strike… We’ll give you a very short amount of time to make your decision” (YouTube

v. Brady, 2019). Recall that a third strike leads to the deletion of a YouTube channel. In this
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case, after the targeted YouTube channels made these extortion messages public, YouTube took

notice and removed the false strikes.

Brady was not done yet, however. A few months after the first incident, he was in the

midst of an online dispute with another mid-sized YouTube channel. He filed four false DMCA

takedown requests against the channel owner, where once again, he did not own any of the

copyrights he was claiming, and he was again well aware of this. The channel owner chose to

submit a counterclaim against the takedowns, and it appears that this is what Brady intended all

along. In addition to an agreement to partake in a legal battle if necessary, a counterclaim also

requires the user to hand over their personally identifying information in case the copyright

holder does chose to file a lawsuit. In this case, Brady wanted to get the personally identifying

information of the channel owner, particularly the address of his home. After getting this

information from the counterclaim, Brady swatted the home of the channel owner (YouTube v.

Brady, 2019). Swatting is a relatively recent and extremely dangerous form of harassment.

Swatting refers to the act of “making a false police report, usually of a violent crime, to send

SWAT teams or other law enforcement to a location” (Reeves Law Group, 2019). The act of

sending heavily armed emergency service members to a location where they believe a violent

crime is taking place has led to several wrongful deaths of innocent victims.

The resulting YouTube v. Brady trial ended with Brady admitting to filing dozens of

knowingly false DMCA takedowns and agreeing to pay $25,000 (Lee, 2019). It’s cases like this

that highlight the lopsided nature of the DMCA system and its failure to uphold the right to fair

use on platforms like YouTube. In fact, by some accounts, YouTube has entered into private

agreements with large music rightsholders such as Universal Music Group that allow UMG to

take down any video containing a snippet of their music without any actual reason (Kreisinger,
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2020). Now the question becomes, what could be done about the DMCA/fair use debacle in

order to make it more fair for everyone involved?

According to a researcher on the subject named Joel Matteson (2018), it has become clear

that the DMCA protections have become skewed in favor of copyright holders and content

providers and has left content creators with the short end of the stick. This has happened “at the

expense of fair use” and “resulted in unnecessary chilling of otherwise protected speech”

(Matteson, 2018, para. 1). One of the main issues he sees in how DMCA protections are applied

is how copyright holders have the power for any work to be immediately removed without any

prior considerations for fair use.

A possible way to mend this imbalance is by adding an amendment to Section 512 of the

DMCA. Instead of the current policy used by content platforms of ‘remove now, ask questions

later’, no videos should be taken down automatically until the creator is given the opportunity

make their fair use defense (Matteson, 2018). Content creators should have the power to voice

their argument for fair use before their video is taken down, because as discussed above, the

process of having a video reinstated is often odious, difficult, slow, and sometimes expensive.

The time that a video spends offline is money lost by the creator, and having a work remain

offline before and during the resulting months-long lawsuit could be equated to prior restraint

because it limits free speech before a decision has been made (Matteson, 2018). Prior restraint is

meant to be severely limited by the First Amendment.

This issue was already discussed in a Ninth Circuit case where the judges ruled that

“copyright holders have a duty to consider — in good faith and prior to sending a takedown

notification — whether allegedly infringing material constitutes fair use” (Lenz v. Universal

Music, 2015). This sounds like a step in the right direction. However, in practice, it has been
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difficult to punish companies for bad faith DMCA takedowns because all that a copyright holder

must show is that they have a “subjective good faith belief that use is not authorized” (Lenz v.

Universal Music, 2015). Basically, this means that a copyright holder who takes down a fair use

video only has to say, “we thought it wasn’t fair use”, and they are protected, regardless of their

actual intentions.

Content creators should have the opportunity to make a counterclaim or at least argue

their opposition to a DMCA takedown before the video is removed. Any resulting decisions or

litigations can then decide whether the work constitutes fair use, and the video can be removed if

it is indeed a blatant copyright infringement. The burden of proof should belong to the copyright

holder making the claim, not the creator being accused. The logic that the claimant has the

burden of proof is used in almost all facets of the law, except for fair use. Under current DMCA

standards, an account holder can have their freedom to create content on the platform removed if

they are labeled a repeat offender, even if no actual litigation has been filed or decided against

them. The “repeat offender” portion of the DMCA could be amended to only give strikes to users

who have been found guilty of copyright infringement in a court of law more than once

(Matteson, 2018), not just based on the judgement of a YouTube employee or an automated

system. This is meant to prevent a content creator from having their access denied on the basis of

three false DMCA takedowns that he cannot afford to fight against. One other possible fix could

be to stop the use of automated copyright bots for taking down content. Nobody should face

possible litigation or account removal on the basis of a bot’s findings. Every DMCA takedown

request should have to go through a human review before being approved (Matteson, 2018).

While the DMCA and fair use are at odds with each other in the current online climate,

and free speech is being chilled as a result, it is my belief that if the correct changes are made to
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the DMCA, balance can be restored to content platforms and their creators. In my personal

experience, I have seen several of my favorite creators terrified to use even a second of a

copyrighted material, even in a fashion that is clearly fair use, for fear of a strike or channel

removal. It is not right, in my opinion, that content creators should be afraid of actually using

their legal right to fair use.

References

Clement, J. (2020, August 25). YouTube: Hours of video uploaded every minute 2019. Retrieved

from https://www.statista.com/statistics/259477/hours-of-video-uploaded-to-youtube-

every-minute/

Kreisinger, E. (2020, March 02). Is Copyright Killing YouTube? Retrieved from

https://www.dailydot.com/unclick/youtube-mashup-remix-copyright-universal/

Lee, T. B. (2019, October 15). Man Agrees to Pay $25,000 for Abusing YouTube's Takedown

System. Retrieved from https://arstechnica.com/tech-policy/2019/10/man-agrees-to-pay-

25000-for-abusing-youtubes-takedown-system/

Lenz v. Universal Music, (2015). 9th Circuit. 815 F.3d 1145.

Madigan, K. (2020, July 29). Senate Hearing Explores the Intersection of Fair Use and the

DMCA: Part I. Retrieved from https://copyrightalliance.org/ca_post/intersection-of-fair-

use-and-the-dmca/

Matteson, J. D. (2018, December 12). Unfair Misuse: How Section 512 of the DMCA Allows

Abuse of the Copyright Fair Use Doctrine and How to Fix It. Santa Clara High

Technology Law Journal, 2, 1.

McCord, G. (2019). A Fair Use Refresher Part I: Nuts and Bolts. Texas Library Journal, 95(3).

Mir, R., Stoltz, M., Harmon, E., Doctorow, C., Trendacosta, K., Walsh, K., & McSherry, C.

(2017, June 22). A Guide to YouTube Removals. Retrieved from

https://www.eff.org/issues/intellectual-property/guide-to-youtube-removals
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Reeves Law Group. (2019, December 21). When Online Gamers Cause Swatting Deaths.

Retrieved from https://www.robertreeveslaw.com/blog/swatting-death/

Ross, S., Reynolds, A., & Trager, R. (2020). The Law of Journalism and Mass Communication

(7th ed.). Thousand Oaks, CA: Sage Publications.

Stim, R. (2019). CHAPTER 9: Fair Use. Getting Permission.

Sunstein (2020, October 13). YouTube's Copyright Policy: Pitfalls Aplenty for Video Creators.

Retrieved from https://www.jdsupra.com/legalnews/youtube-s-copyright-policy-pitfalls-

23119/

Trendacosta, K., & McSherry, C. (2020, July 31). What Really Does and Doesn't Work for Fair

Use in the DMCA. Retrieved from https://www.eff.org/deeplinks/2020/07/what-really-

does-and-doesnt-work-fair-use-dmca

Urban, J., Karaganis, J., & Schofield, B. (2017, March 22). Notice and Takedown in Everyday

Practice. UC Berkeley Public Law Research. doi:10.31235/osf.io/59m86

U.S. Copyright Office (2020, October). More Information on Fair Use. Retrieved from

https://www.copyright.gov/fair-use/more-info.html

YouTube v. Brady, (2019, August 19). United States District Court of Nebraska. Case No. 19-

353.https://www.courtlistener.com/recap/gov.uscourts.ned.84712/gov.uscourts.ned.84712.

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