The Fight for Fair Use
Updated: Jan 29, 2022
Everyone has casually listened to music on the radio. Maybe you’ve even listened to music with friends at a party. Say you were having a good time at the party and your friends record you doing a cool party trick and upload it to YouTube. Then, in a day or two, the YouTube video gets flagged by copyright owners and you have officially committed a crime: publishing unlicensed music. Sure, the music was clearly in the video, but no one really wants to hear Disney’s You’ve Got a Friend in Me. They want to see you flip a cup upside down on the side of a ping pong table! This scenario is quite common and, although it might not matter to you because of a minor social media presence, larger creators on platforms like YouTube and Facebook are trying to figure out where the ever-changing “fair use” line is drawn. “Fair use” is a copyright doctrine that permits you to use a portion of music without permission. The issue is, there are no definitive guidelines for what “fair use” actually permits. For example, some say there is a 30-second rule (meaning that you can play up to 30 seconds of a song in a video without getting a license), but this was easily debunked when it was shown that videos were being taken down for as little as 5 seconds of a song.
So is this fair? Should the revenue made off of public videos be taken away due to 5 seconds of background music?
The answer seems obvious, but it’s probably more nuanced than you think. You see, the purpose of copyright is to protect your intellectual property, which many people agree is a fair way to make sure that what you create can’t be illegally used in someone else’s work. So, if you were to publish someone else’s content and make money from it, it would clearly violate the purpose of copyright laws.
But what about displaying that content for a very short duration of time? Should that be treated the same as ‘stealing’ someone else's content? Probably not. Even so, automated bots created by major music companies are traveling through the network of YouTube videos right now to see if they can detect trace amounts of music that are protected by copyright. When they do, they flag the video, and all the revenue of that video, present and future, is given to a large corporation that owns thousands of artists’ domains. This ongoing issue continues to evolve as new precedents are set about what exactly can or should be considered protected content. Until more definitive parameters are defined by law, there will continue to be a fight for fair use.