The purpose of copyright is to promote the arts and sciences. Fair use – via commentary or parody – also promotes the arts and sciences. But at its root, fair use’s importance in history and politics is far more profound for equality and justice.
The manifestation of my maniacal drive to defend fair use came through a desire to tell stories of influencers and showcase their works, with clips from their movies, music, and other performances.
The root of it however was always to preserve freedom of expression, which are vital to maintain free and just societies.
Due to recent events in America of note, we don’t require much imagination to fear what would happen if a madman is elected and then leans in on media companies to produce propaganda to whitewash his alleged crimes and be cast favorably. Now imagine what happens if re-elected.
Fair use, amongst other means, protects democratic institutions which along with the norms and protocol we adopt serve as the foundation of free and just societies.
As a humanities-trained, business-educated individual, I always viewed fair use and our struggle in a broader light, particularly due to my roots, Nature and Nurture. It was never about what others thought it was about.
From 2010 onwards, I began to immerse myself in copyright law and fair use (or fair dealing in some jurisdictions). By 2012, I had examined the law enough with my advisors and was confident that my interpretation was sound. I began to curate my findings into my earliest fair use articles for Mediapost, re-posted here in the archives on
– the concept,
– cases and precedents,
– the commercial applications and limitations,
– common sense when navigating in fair use,
– specifically on ContentID, touching on that infamous day in December 2013 when a procedural error took us down for 24+ hours.
Throughout, we managed to convince YouTube to reflect the DMCA.
At a high level, if I were to summarize the salient points based on our editorial and my decade’s worth of research and analysis on Fair Use, it would be:
1. Commentary has – like news and parody – been protected by Fair Use under section 107 of the Copyright Act.
2. As we create a new work (Commentary), publish it online for free, legally we are allowed to monetize the work as we do, same way Entertainment Tonight, Saturday Night Live or Newspapers (book reviews) do so. Repeatedly in many court cases (Bouchat v. NFL, Suntrust v. Houghton Mifflin Co., Campbell v. Acuff-Rose Music), courts have concluded that commercial use may be Fair. Similarly, if a newspaper does a review of a book and runs a portion thereof, they don’t share their ad revenues with the studio which owns the IP of the movie; if a TV show does the same thing it doesn’t share revenues and just because CID gives claimants the ability to hijack, extort and threaten channels. This is key: technology enabled something that flipped the law upside down. We fought that.
3. In at least one precedent (Suntrust v. Houghton Mifflin Co.), courts have concluded that publishing a work for free on the Internet and making it accessible to readers/viewers to consume at no cost is not deemed Commercial in context of Copyright.
4. In at least two precedents (Lessig v. Liberation, Phan v. Kaskade), channels like WatchMojo successfully sued against the actual rights holders, citing Fair Use.
5. In one very public precedent, Righthaven was sued into demise for over-stepping its rights and deemed a “copyright troll.” Indeed, the courts will penalize rights holders who abuse copyright tools: UMG v Lenz, Lessig v. Liberation, Phan v. Kaskade are all examples.
6- If you are downloading a movie to use a portion for a commentary, for example, then the end may justify the means.
7- As a Canadian corporation, we as even further protected by a landmark Supreme Court case that confirmed that fair use isn’t merely a defence but an extension of users’ rights; this was also reinforced by UMG v Lenz in US: “fair use is not an ‘infringement to be excused’ but instead is not copyright infringement at all.”
The record labels pushed YouTube to give them the upper hand with ContentID.
Which naturally led to more claims to manage… which was needless stress and anxiety since the law was on our side. To get them to tone down the abuse, in 2019/20 I had to go back on the offensive, publishing this series of articles/videos which revealed just how egregious things had become.
Part 1: Counter-Strike – Exposing Abusers of Content ID
This is a primer on how YouTube’s ContentID works.
Watch the video or read the article.
Part 2: Class Warfare – Estimating Amounts Rights holders are Unlawfully Claiming via Content ID
This is an eye-opening piece on how rights holders have abused ContentID
Watch the video or read the article
Part 3: And Justice for All – Solutions to Fix Content ID
Some ways we can help the law catch up with what technology has enabled, unleashed
Watch the video or read the article.
As fans of pop culture franchises, naturally we always wanted to give our fans the best programming possible, our principled stand on behalf of fair use / fair dealing was to avoid setting a bad precedent whereby the media would have lost the ability to dissect excerpts of longer works and comment, criticize them – which is the other obvious objective of fair use.
I’ll use this page as a central index for those interested on Fair Use and if interested to discuss any matter, hit me up.