what you are saying still doesn’t really change the status quo though.
The status quo was the American status quo though, and it was brought about by a fairly reasonable law that had unfortunate side effects
(but didn’t you just rant about how shhhh I’m writing here)
That being, the DMCA and Section 230 of the CDA came together to effectively say “If somebody sues your service for something a user posted, it’s a perfectly acceptable defense to say ‘A user did that, not us, and we took it down as soon as you asked.’ and then you’ll get the case dismissed.”
It’s just that youtube is so big, and hiring people to manually check things is so expensive, youtube decided it’s easier to have an automated system in place.
The Order of Operations with youtube goes:
Company: Creates Media
User: Creates derivative work that re-uses some of the original IP (May or may not be fair use)
Company: Claims the work is their IP
Youtube: (Insert several varities of automated response, depending on what the company demanded – redirect ad revenue to company, remove all ad revenue from media, take media down)
Youtube: At this point no longer legally responsible for anything, which was their goal. The entire process until now has involved zero employees, taken zero money, and ensured they won’t lose a suit.
- Accepts this (story ends here)
- Issues a counter-claim
- Sees the large-scale social media shitstorm they have created because the user was accidentally e-famous, retracts their claim (story ends here)
- Gives no fucks about PR (your audience isn’t big enough, or they’re Nintendo) and doesn’t retract their claim
- Gives up (story ends here)
- Sues the company to show that their use was fair use
At this point, if the usage actually was fair use (say, you were doing a review) you can now engage in a very expensive lawsuit to the tune of millions and, if you’re lucky, show that it was fair use so the company should pay you a couple of thousand dollars to make up for the ad revenue you didn’t get while this was ongoing. You probably also want them to pay for your legal expenses and your time wasted, but alas, such is not to be.
Fair use doesn’t actually matter in this process until you’ve decided to bring a lawsuit against the company because the law gives youtube 100% reason to instantly side with the original IP holder and you have no remedy until they withdraw their claim or you win a lawsuit – except the PR shitstorm to make them withdraw their claim is probably easier to get started if you’re clearly in the right.
So that’s the “status quo.”
But like I said, that’s the American status quo, and it only works out this way because youtube is so big, and so worth suing for large companies, that they had to set up an automated ass-covering system. Ao3 is subject to the same laws and precedents, but they don’t have this problem. For one, in text it’s much more obvious that the work is derivative (unless you’re quoting whole passages in which case…) but also Ao3 doesn’t have any money worth taking.
American status quo.
The EU malarky has two additional bullshit things in it:
First, we are encouraging automated takedown systems rather than just seeing them as an unfortunate outcome of otherwise reasonable legislation.
Second: The platforms should provide rightsholders with “adequate reporting on the recognition and use of the works and other subject-matter.”
And my Whole Entire Opinion on that second point is “Fuck the Police.” Every single time you create a reporting requirement, you have just put another business out of work because they needed to hire yet another person to do compliance work instead of actually doing somethign people will pay for. Like I said in my first complaint, it’s a complete give-away to entrenched interests who can afford the lawyers and bullshit artists necessary to stay ahead of the rules. And I guess a jobs program for people with law degrees.
That said, corporate lawsuits are a problem I could rage on about for ages.
God yes don’t get me started.
Well I guess technically I have started. Don’t get me started on something new.