Mirrors of other users videos - Verbatim and fair use?

[FSAthe1st]

Pete here.

Does anyone know the situation with mirroring fundamentalist's videos on YouTube and what, if any, provision there is for this under fair use?

I've read that Fair Use covers clauses such as comment and criticism, as well as satire, but here's the problem:

As we all know, several mirror channels (those containing videos by VenomFangX and NephilimFree, among others) are being hit with DMCA's from the channels that the videos belong to. Now I'm sure that the only reason they're engaging in these behaviours is for the purposes of censorship. They want to control who can comment on their material, and so they disable ratings and enable comment approval, then they file DMCA actions against anyone who mirrors their videos and opens up the comments.

Is there anything that can be done about this?

I do know that there are several users on YouTube, who include annotations when posting said videos, in an attempt to provide commentary on what is being seen, and I know that sometimes a video is included in it's entirety when it is being commented against, such as those used by the ExtantDodos when they produce their Critical Analysis products, but can the same thing be applied to videos with annotations? I mean, essentially you're producing the video in it's entirety, without interruptions, but you're also providing an overlay of commentary on the video explaining why it is that the original video is flawed or wrong.

I know in my case, when I produce a video response to any user, I like to quote their video in full so that I cannot be accused of taking them out of context, and I'm also covered under the relevant articles of fair use (which I post in any video where I respond and use someone's material), because I'm responding on a point by point basis.

But I suspect the clauses are a little less usable in the instance of mirroring the videos and adding annotations.

Nephi recently commented on a video claiming that, because the annotations are "Macromedia Flash" (notwithstanding the fact that Adobe long ago bought out Macromedia), they don't count somehow. What a moron. But the question is: Is he right?

It doesn't matter much to me, since I never have and never will mirror videos without permission from the original posters, but there are several users who mirror videos simply to circumvent censorship policies of the fundies.

And in the end, if it's not legal to mirror videos, then is it possible to mirror portions of the offending videos and then linking to the originals? Of course, if said users delete their videos, this will result in broken links, but it's one possible solution.

What are your thoughts guys?

 

[Marcus]

According to YT's TOS, any original material you put on YT is fair game for copying. You'd only be subject to any copyright violation actions if the whole or part of the video you mirror is copyright by dint of having been produced and shown elsewhere - for instance, TV shows. In that case, the owner of the copyright can claim against you - even if the poster of the original video has permission to post it, that doesn't extend to mirroring by others.

 

[FSAthe1st]

According to YT's TOS, any original material you put on YT is fair game for copying.

Do you have the relevant sections of the TOS? I don't know if there's provision in Title 17 of the US Copyright Act (or the UK equivalent) for commentary overlaid on original media, which is the issue with mirroring videos. It could be argued that those mirroring videos might get away with Fair Use if the TOS isn't sufficient to cover the matter under UK law.

You'd only be subject to any copyright violation actions if the whole or part of the video you mirror is copyright by dint of having been produced and shown elsewhere - for instance, TV shows.

I suspect it has something to do with IP laws and financial gain/loss on said productions. Am I right?

In that case, the owner of the copyright can claim against you - even if the poster of the original video has permission to post it, that doesn't extend to mirroring by others.

So if, for instance, a Creationist posts videos and someone else mirrors those videos, the TOS will cover them for as long as the video remains up on YouTube?

 

[SchrodingersFinch]

According to the YouTube Terms of Service:

Section 5.B

You may access User Submissions for your information and personal use solely as intended through the provided functionality of the YouTube Website. You shall not copy or download any User Submission unless you see a "download" or similar link displayed by YouTube on the YouTube Website for that User Submission.

However, section 6.C says:

For clarity, you retain all of your ownership rights in your User Submissions. However, by submitting User Submissions to YouTube, you hereby grant YouTube a worldwide, non-exclusive, royalty-free, sublicenseable and transferable license to use, reproduce, distribute, prepare derivative works of, display, and perform the User Submissions in connection with the YouTube Website and YouTube's (and its successors' and affiliates') business, including without limitation for promoting and redistributing part or all of the YouTube Website (and derivative works thereof) in any media formats and through any media channels. You also hereby grant each user of the YouTube Website a non-exclusive license to access your User Submissions through the Website, and to use, reproduce, distribute, display and perform such User Submissions as permitted through the functionality of the Website and under these Terms of Service. The above licenses granted by you in User Videos terminate within a commercially reasonable time after you remove or delete your User Videos from the YouTube Website. You understand and agree, however, that YouTube may retain, but not display, distribute, or perform, server copies of User Submissions that have been removed or deleted. The above licenses granted by you in User Comments are perpetual and irrevocable.

I'm not sure if uploading other people's videos is against the Youtube TOS, but it seems that downloading them is (at least without permission).

 

[stratos]

FIrstly IANAL (I Am Not A Lawyer), however.

You also hereby grant each user of the YouTube Website a non-exclusive license to access your User Submissions through the Website, and to use, reproduce, distribute, display and perform such User Submissions as permitted through the functionality of the Website and under these Terms of Service.

downloading, then uploading and adding annotations is basically reproducing it, all within the functionality of the website.

I did however spot a bit of a catch.

The above licenses granted by you in User Videos terminate within a commercially reasonable time after you remove or delete your User Videos from the YouTube Website

So after a user deleted his video you basically lose the right to do the above. Although, that is within a commercially reasonable time, which in legal terms is probably equal to how expensive your lawyer is.

The other catch is however that the "loophole" is basically the words "functionality of the website". Strictly speaking the website only gives you the option to download if the button is available, however, technically speaking if I am seeing the video, I'm downloading the video and as such I can download the video. They specifically mention the whole download button link, but technically it is a bit of a weird one, because I can't watch stuff I haven't downloaded.

Also I wonder if the TOS applies for non-users. I'm not sure, but as just a non-loggedin user I can't remember the agreeing to the TOS anywhere. But I'm unsure if that matters in american/californian law.

 

[Marcus]

If you watch a vid, it's in your cache. You're using the website's functionality and knowledge of how your browser works and stores files. Therefore, under the TOS, you can do with the vids as you wish.