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  • snowy

    Takedown of the Week: YouTube and Lionsgate Films Continue to Ban Paradigmatic Example of Fair Use

    Adam Holland, January 10, 2013

    Abstract: Jonathan McIntosh’s celebrated remix, Buffy vs. Edward has been a classic example of a fair use for years. Nevertheless, at the end of 2012, it was blocked from YouTube due to a copyright claim from Lionsgate Films. Despite McIntosh’s best efforts to make the parties aware of the facts, and of the video’s clearly fair use of the material in question, the video remains down.




    This appalling saga is one of those stories where the facts are so ludicrously ironic that you feel it must be fiction. A type specimen for a fair use remix video gets taken off YouTube because a rightsholder says it’s infringing. But, as the saying goes, you can’t make this stuff up.

    In 2009, Jonathan McIntosh, remix artist, new media educator and fair use advocate, made a remix video, Buffy vs. Edward: Twilight Remixed (which you can still see many other places, including here, with explanatory pop-ups, ) that used clips from Buffy the Vampire Slayer and from the Twilight movies to comment on the misogynistic portrayal of male/female sexual relationships in Twilight. The remix video, described as a “pro-feminist visual critique “ was a smashing success, and became an iconic example of fair use. In fact, in October, the U.S. Copyright Office cited it in their 2012 Report as “an example of a transformative noncommercial video work” that was fair use.

    Nevertheless, On October 9th, 2012, McIntosh received a communication from YouTube that “'Buffy vs Edward' had ‘matched third party content’ owned or licensed by Lionsgate and ‘ads may appear next to it.’”

    What had changed? Why was the video, which had been viewed hundreds of thousands of times, and presumably had been monitored by YouTube’s internal copyright software, ContentID, suddenly a problem? That question is probably easy to answer. Originally, the rights to the Twilight films had been owned by Summit Entertainment. Summit apparently had no issues with McIntosh’s use of their film’s clips, or if they did, presumably resolved them internally. But, Summit was purchased by Lionsgate Films in January 2012, making Lionsgate the new rightsholders, and presumably leading to changes in the way in which YouTube monitored its videos for infringement’s of Lionsgate’s rights. It isn’t clear why it took nine months for Lionsgate to start trying to assert their rights.

    This is bad enough, but it’s the chaos that ensued when McIntiosh tried to have the video reinstated that reveals the extent to which the system is broken, the dangers of software-based evaluations of copyright infringement, and finally, why consideration of fair use is so critical.
    McIntosh did everything humanly possible to alert YouTube and Lionsgate to the fair use status of “Buffy vs. Edward”. (You’d think simply pointing YouTube and Lionsgate to that U.S. Copyright Office Report would do it, but apparently not. ) He diligently went through all of YouTube’s appeals procedure'sback and forth, including their new appeals procedures, but no avail. I’m frankly amazed that he waited this long before filing an official counter-notification, which places the ball squarely in Lionsgate’s court to allow the video to go back up or sue McIntosh. (Who would, I suspect, relish the prospect.) Perhaps most bizarrely, and shamefully, this is not all ascribable to unthinking software, in the way that livestream removals could be. It’s clear that humans have been involved, people who should know better and understand the facts. So is it willful ignorance on the part of Lionsgate, or are they seeing how far they can push McIntosh before they have to change tactics. Haven’t they heard of the Streisand Effect? Or do they simply not care?

    The most tragicomic piece of all this is that (of course) the video is still up in a variety of locations, including on YouTube. so what’s in this for Lionsgate, other than beautifully reifying Emersonian principles?

    McIntosh meticulously describes the full story here, in an excellent post for Ars Technica, and it really is a must-read for anyone interested in copyright law and fair use. Draw your own conclusions, but be sure to ask yourself what other iconic pieces of culture aren’t coming up in your search results because of this sort of thing.

    [UPDATED: 2013/01/11 McIntosh < ahref = "https://twitter.com/radicalbytes/status/289707110944620544"> tweets that the video is back up.]

     


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