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in Filmmaking
on Jan 13, 2009

Let me weigh in quickly on the imbroglio surrounding the deletion of Kevin Lee’s YouTube account. On the account Lee had posted his series of critical video essays on a number of recent and classic films, and in the course of arguing the aesthetic merits of each picture the videos included clips from the movies themselves. Apparently, YouTube received a complaint from the copyright holder of one of the clips and deleted his entire account.

Matt Zoller Seitz has the complete story along with a comments thread that is also a must read, and Karina Longworth originally covered the story here.

Like I said, my reactions here are quick because I’m getting ready for Sundance as well as editing material for our Sundance micro-site that will go up tomorrow.

1. My first reaction is a self-interested one — this story ties in really nicely to Lance Weiler’s latest piece on data portability that will appear in the new Filmmaker, which hits the stands next week. (It will be online a week from Monday.) In the piece Weiler talks about the dangers of filmmakers aggregating too much of their data on social networks that can delete their accounts — and this data — at the blink of an eye. He’s mostly talking about social networking data, but his argument applies to content as well. In the piece he directs people to the Data Portability Project, and I’d recommend people check out this organization’s good work.

2. I completely agree that what happened to Lee is distressing and also, in my opinion, legally wrong. I would argue that the use of these clips is covered by fair use. However, I am not surprised. What I would point out is that these issues are not new — documentary filmmakers have been grappling with the limits of fair use for years. (And it’s why some clip-oriented docs, like The Celluloid Closet, have big budgets and an array of big traditional media funders while others, like L.A. Plays Itself, have no such backers and only play on the non-profit circuit.) The problem in most fair use cases is that while a creator may be legally right, in the absence of clear test cases partners on the distribution and exhibition end are usually uninterested in funding the massive legal fees required to embark on a fair use battle. The Center for Social Media at American University has done some work in this area. Particularly noteworthy is their “The Code of Best Practices in Fair Use for Media Literacy Education.” The document is intended for educators, and obviously an online essay outside of the classroom is slightly different, but much of the discussion in this document is still relevant. Issues surrounding fair use and our emerging “remix culture” are also at the center of Lawrence Lessig’s new book Remix, and Lessig is interviewed by Weiler in the upcoming Filmmaker article.

3. Here’s where I may be getting in a little over my head, but it’s my understanding that the Digital Millenium Copyright Act gives internet service providers (of which YouTube is considered one) a pass on copyright infringement until a complaint is made. At that point, if the provider doesn’t comply by removing the allegedly infringing piece, they are then liable. So, there’s little incentive for YouTube and its owner, Google, to fight the good fight for the filmmaker — or, at least there isn’t until enough people rebel by shifting to another service or disseminate their videos another way. The key here is that the DMCA requires the ISP to respond to an “alleged” violation if the ISP is to claim the legal protections that the act affords it. It would be great if a company like Google would throw its legal team behind fair use issues, but if you’ve followed my blog posts on the Google Book settlement, then you would see that while Google is actively using the legal system to challenge conventional copyright laws, they are doing so in cases in which their own ad-supported revenue model will profit. I think where YouTube is really in the wrong is by deleting Lee’s entire account. As he has a very clean argument that fair use covers his clip usage, YouTube is making its own judgement that the rights holders of the other clips on Lee’s page would have similar complaints, and there’s no evidence that that is the case.

4. At the end of the day, as distressing as this is to the blogger community individually, I think the best way forward is to link what’s happened here to the broader debate over fair use as it applies in documentary film, in classrooms, and in the kind of “remix” works Lessig talks about in his new book. There are people who have been invested in these issues for years, and the voices of the online critical community should now be added to theirs. At the same time, we should heed what Weiler suggests — to be aware of data portability issues when we release our materials. And also what Seitz quotes Amy Taubin as saying over at his site:

“One way around this problem re movie criticism is not to post on YouTube, but rather to create a dedicated site specifcally for movie criticism that employs excerpts and get a good intellectual properties lawyer to take the first case that arises pro bono (it would be an important landmark case.)”

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