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YouTube Copyright School screenshotYouTube’s recently revised copyright policy and video has been hammered by the copyleft and neutrals.  The EFF describe it as “misleading” and “copyright propaganda”, Raymond Dowd says YouTube has “flunked” copyright school, and TechDirt calls it “myth perpetuating”, claiming that YouTube is “bending over backwards” to help copyright owners.

The new policy will require users accused of copyright infringement (but not those whose take down notices have been repudiated) to go to YouTube’s Copyright School and watch the video below, which purports to explain copyright law and the consequences of infringement.

The main criticisms are that the video fails to explain fair use with sufficient depth or patience, doesn’t expressly mention to words “public domain”, and makes out that infringers and pirates are one and the same.  The more vitriolic accusations contend that YouTube has become a puppet of the entertainment industry, trying to please the RIAA and MPAA in order to reduce the prospect of future lawsuits against YouTube.

For my part, I am disappointed that the video fails to mention that IP rights are territorial, with the very practical consequence that different jurisdictions may have substantially different requirements for when copyright subsists in a work and for what counts as infringement (especially when the allegedly infringing act occurs online), and that it makes the flatly wrong, blanket statement (at 3:45) that if you create a work you own its copyright:  that is not always the case, especially in an employment or work for hire context.

Is Google standing down? Do Patry and the EFF’s most prominent copyright attorney really sign up to this?

But aside from these criticisms, I think there might be more to this development than meets the eye.

YouTube Copyright School screenshotFirst, Google and YouTube have never been known as anyone’s lackey, so I really cannot believe TechDirt’s charge that YouTube must be acting for the RIAA / MPAA.  Google is aggressively (and, thusfar, quite successfully) doing all they can to reshape our understanding of what they and we can do with third parties’ (soft) IP:  think trademarks in the AdWords and AdSense programs; unilateral indexing of webpages and the creation of image thumbnails for profit; the Google Books Project, to name but a few.   These are not the actions of a company that will be told how to conduct its business, nor how it should treat its customers.  In fact, the ways in which Google’s actions improve consumer interests are normally prominently referred to in any pleading or press release.

Second, I find it really hard to believe that with William Patry, author of the treatise Patry on Copyright, on the team, and having very recently hired the EFF’s senior copyright attorney Fred von Lohman – an attorney who has fought hard to expand users’ rights to re-use copyright works and to educate users on their existing rights – this video is Google’s best effort at offering a genuine education opportunity on what copyright law really says.

A road map to Washington?

The timing of the video might also be significant.  YouTube’s Copyright School video was uploaded on March 24, 2011.  Only two days earlier, on March 22, 2011, Judge Denny Chin rejected the Amended Settlement Agreement in the (now) ongoing litigation commenced against Google by authors and publishers who were furious at Google’s Book Project.

The rejection presents a serious problem for Google.  They needed the ASA to be approved so that they could exploit in-copyright orphan works in the future without infringing them (or, more accurately, so that they could “infringe” them while having a mechanism in place to limit how much they would have to pay out if any of their owners come forward at some later date) and they have made it known that they will not settle this litigation on terms other than those contained in the rejected ASA.  Since the very nature of orphan works means that their owners can’t be found, the rejection of the ASA means that even if Google wins the litigation (which is going to be difficult, but not impossible) it will still not have the forward looking business plan vis-a-vis orphan works that it wants.

The upshot of all of this is that Google’s next move has to be to lobby Congress for legislation directed at orphan works and greater certainty regarding the online exploitation of “snippets” of literary and artistic copyright works.  How does it do that?  It has to persuade members of Congress that there is a problem that needs to be fixed.  Naturally, this involves painting the current regime in its worst possible light and garnering as much support for its proposals as it can.  And this is where the video really finds its function.

“That’s how the law works”

With this in mind, it seems that by suggesting that: the current copyright system views all infringers, even children, as pirates; is too complex for lay persons to understand; and creates petty barriers around the dissemination of creative works, Google might just have fired its opening salvo in its pursuit of legislative reform.

At 3:55 you’ll notice that the video concludes its skimming the surface of copyright law with a defiant, “That’s how the law works.”  Well, it isn’t really, but it might just be very useful for people to think that it is.

You can watch the video below: