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Big YouTube Changes Could Spell Legal Trouble for Users

By Cheryl M. Gill, La Crosse WI Lawyer on Saturday, October 1st 2016

If you upload videos to YouTube, especially if you embed music in those videos, you'll want to make sure you're;re not hitting a sour note when it comes to copyright. These days, record labels and musical artists are working harder than ever to protect their assets, and you could be held liable if you make a copyright misstep.

The effort is making more than sound waves, it's making big news. YouTube's licensing contracts with the three major music labels: Warner Music Group, Sony Music Entertainment and Universal Music Group are all expiring this year. And the labels are eager to renegotiate how they'll be paid for content moving forward. Digital Music News reports that YouTube accounts for about 40 percent of music consumption, but only four percent of the revenue. Superstars are fighting the issue from another angle according to Music Business Worldwide, which reports that big names, including Taylor Swift, Lady Gaga and Sir Paul McCartney are petitioning Congress for a rewrite of the Digital Millennium Copyright Act (DMCA), which allows YouTube and other platforms to avoid liability for copyright infringement that happens on their platform.

Currently YouTube's anti-infringement tool: Content ID, detects copyrighted materials in videos uploaded by users, but the labels argue the tool is anything but foolproof, and the burden is on them to flag content.

For all of these reasons, analysts say this year will likely mark some big changes in fair use and copyright considerations on YouTube. Already, some record labels have cracked down on the use of their music, including Sony Music Entertainment, which—perhaps ironically—ordered a lecture on copyright be taken down from YouTube, as reported on TechDirt, in a video many considered to fall well within fair use. Needless to say, for anyone who uploads videos to YouTube and uses copyrighted music, it's worth your while to brush up on the law.

Understanding Copyright

Copyright can cover audiovisual works, sound recordings and musical compositions, written or visual works, video games, computer software and dramatic works. There is much misunderstanding surrounding copyright. According to YouTube, the copyright owner may claim your video even if you have given credit to the copyright owner, have not monetized the video, or have purchased the content in another format. You are also liable even if you recorded the content from television, radio or a movie or have found similar videos on YouTube.

Exercising Fair Use

Reusing copyrighted content is allowed under certain circumstances, even if you have not secured permission from the copyright owner. According to YouTube, fair use rules differ from country to country. In the United States, however, it may be fair to use copyrighted content in works of research, teaching, criticism, commentary or news reporting. Fair use in the U.S. is determined by a judge who considers these four factors:

  1. Purpose and character of the use, including whether it is used for nonprofit educational reasons or if it is commercial in nature
  2. The copyrighted work's nature; use of factual works is more likely to be considered fair use
  3. The amount of content used related to the copyrighted work in its entirety
  4. How the use will affect the value of or market for the copyrighted item

There are some widely-held myths around fair use. Remember, even if you give the owner credit, post a disclaimer or use the item for non-profit purposes or entertainment, and even if you add your own work to the item, you may be held liable for copyright infringement.

We're sure to see more news on this battle in the near future, so in the meantime, be sure to hit the right note with your YouTube uploads.

Article by Cheryl Gill, La Crosse WI Criminal Defense Attorney. For a criminal defense lawyer in La Crosse, contact her at 608-784-5678.





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