Defending fair use: Good for YouTube’s business--and for us

Why is Google promising to defend some YouTubers who regularly remix copyrighted work, if they are charged with infringing? Because fair use is central to its business plan. Oh, and to the future of creativity. That too.

 As Techcrunch recently explained [2], to understand why YouTube is so publicly embracing its fair users, you have to look at its business. Some of the most popular YouTubers routinely reuse copyrighted material. If you’re reviewing movies or videogames, for instance, you will use examples of what you’re talking about. On many music channels, people remix, remake and comment on popular music.

 Now, YouTube is launching its own, $10/month streaming service, like Netflix, Amazon, Hulu and others: Google Red. It will feature some of the most popular YouTubers. In all that gaming, comedy, reviewing, the take-offs, and the competitions, the biggest star will be fair use.

No worries.

Google can expect an extremely low level of legal activity, in fact. First, its YouTube Red content providers will already have gone through a legal analysis. Second, fair use is being embraced by the courts, most recently in the Google Books case [3]. That decision did everyone the favor of synthesizing and articulating the current legal norm. Third, the Lenz “dancing baby” case [4] just clearly put copyright holders on notice that they need a genuine belief that infringement happened, not just a digital content match. And fourth, YouTube isn't promising everyone protection, only a selected few.

But Google's limited promise will have far-reaching effects, even beyond YouTube. Its decisions, which it will showcase in its Copyright Center, will send a clear signal both to copyright holders that have been swinging around takedown notices far too cavalierly. It will also send a strong signal to creators about what fair use looks like in real life, online.

 It’s never looked better for remixers on YouTube and everywhere. And that’s not just a good thing for the game reviewers and music fans. It’s good for anyone who wants to see digital-native culture flourish in ways that encoura