Just b/c it's a smarter use doesn't make it a fair one

Granted, I am reaching a new level of Dorkdom by using the class break to blog about the class discussion, but I can't stand not getting the last word. ;->

I thought Ali (sp?/apologies if I have the wrong person) raised an interesting point with his observation that people might watch half-a-movie on youtube for free and then go purchase the real thing...or see an episode of a show and start watching it weekly.

I don't doubt that this happens and, when it does, the content owner benefits from the unlicensed use of his/her content. This is probably why different content owners have struck deals with youtube to share official versions of content; it's also behind miracles, er, sound business decisions like ABC making all of Lost available online for free.

Similarly, I agree with David that there is a significant market for receiving content in a format/medium that looks more like youtube and less like broadcast television. Like him, I have been effectively TV-less for a few years now, although in my case this has *much* less to do with high-minded ideals than w/my obstinate objection to paying for cable. But regardless of this difference in rationale, I too would embrace the chance to watch shows online, at my convenience with ads relegated to interstitial time and/or peripheral space.

What's troubles me is the idea that if you tried to tease Ali's thread into a rule it would look something like:

If it appears that a content owner is economically better off having their copyright violated, then society should permit that violation.

That seems to ignore a crucial stick in the bundle of IP rights, i.e. the right to control content you create/acquire. And it seems especially hard to justify under traditional fair-use rationale.

Now there's plenty of room to debate who should control new content like amv's, and mashups...and I think things like the Disney Fair(y) Use video pretty obviously fall under existing Fair Use exceptions. But being honest with ourselves, I think we know that Viacom's suit isn't about videos like that, it's about videos like this, this, this, and this.

Posting an entire episode of a show (even in 5-10 minute chunks) must surely fail the "Amount/Substantiality" factor of the Fair Use Test we discussed today. Similarly, even if you could make an argument that these videos are "educational" (they are subtitled in Spanish which is why I picked them) the fact that there is not even a token effort to comply with the A/S factor suggests that it must fail the Fair Use test overall, otherwise the A/S factor has no real-world meaning and shouldn't even be part of the test.

So, assuming that the case is really about whether or not it's ok to post complete/substantially complete reproductions of copyrighted material online, I don't see how a traditional fair use defense is available to youtube. To put it another way, just because it's possible that some content providers can/do benefit from having their content posted on youtube w/o their permission that doesn't make that a "fair use" under copyright law, just a smarter one.


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