Legal Online Video and Fair Use – Sharing Versus Ownership

Legal Online Video and Fair Use – Sharing Versus Ownership

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I interviewed Dr. Shay David, VP of Business and Community Development and co-founder of the open source video platform and network Kaltura, and founding member of the Open Video Alliance, about what he considers to be the most important legal issues with open standards and technologies with online video today.

Legal issue with online video: ownership

Me: What do you consider to be the most important legal issues with online video today?

Dr. Shay David, VP of Business and Community Development – Kaltura
Dr. Shay David, VP of Business and Community Development – Kaltura

Dr. Shay: The core question, or one of the core questions, is about ownership. Before video, media online (such as just text or still images) didn’t have as much emotional delivery; and the question of ownership was simpler.

“Ownership” around online video content can be tricky, because there’s a big difference between ideas, and the expression of ideas. Online video has created a whole set of legal complexities, such as how could one license the material? That pertains to things such as: The transfer of rights, the reuse of content, the sense of fair use, creative collaboration… online video affords different legal protection from things like text.

With online media, a lot of those base legal assumptions are now being challenged. What if  you want to show a 15-second clip out of a news video for fair use? Or say, you want to use it for commercial purposes, such as through satire? Or what if you want to sub-license a clip from somebody? Those are just a few of the many possible challenges you have with deciding ownership – and deciding on ownership as it pertains to sharing, collaboration, creation, etcetera.

Legal issue with online video: interoperability

Dr. Shay: The second key challenge with online video has to do with the notion of interoperability of standards. This is about how the video is being transmitted online – the delivery of the video.

This is a challenge that does not exist in text or still images. You see, I want to send you a piece of text, the technical nature of the delivery of that text is not an issue, simply because nobody “owns” the English language (or any other language).

But if I want to share with you a video file, that involves technical mediation: from coding and de-coding, the delivery network or other system you’re using… That creates huge challenges in terms of the ability to limit or restrict speech by enforcing rights. And, those rights don’t have to be enforced in a uniform way. It’s that lack of uniform enforceability that creates major challenges.

Because when you want to look at the whole stack on video delivery, its not just about the delivery of information; it includes a whole set of layers that are related to the video experience. Its about the ingestion of the content, the streaming of the content, the delivery of the content, metadata, monetization, and of course – the continuing emergence of standards. This key challenge is partly legal, and partly business; its about making the systems communicate with one another. The standards tend to be built ad-hoc, from the ground up.

Fair Use issues with video: intent, length & infrastructure

Me: What are the challenges with interpreting fair use of online video for commercial (i.e., business) purposes?

Dr. Shay: The challenge of fair use of online video for commercial purposes centers around the notion between expression and ideas.

With visual material, you want to show what you’re talking about. If I’m quoting a political speech and I’m copying a few lines of the speech and reporting on the rest, that’s fine. (Like I said earlier, you can’t copyright the English language.) But I want to do the same with video, and I am taking the video in its original form, that brings with it more of a legal challenge because I’m copying it verbatim (of the original video footage).

And because we argue to that we should be able to use existing video, that goes to the key issue of what is your intenthow you want to use and quote the material.

Me: When it comes to arguing fair use, taking someone else’s video for your own Commercial use is much trickier, and much more limited. It primarily seems to revolve around if you’re using it purely for informational purposes and not to imply any endorsement, or create consumer confusion (including the inference that you are a licensed rights user of the video, or partner of the video rights owner, or affiliated in any way with anyone related to the video itself.)

Dr. Shay: Another challenge with fair use of online video is the issue is length – how much or how long is being copied or taken, compared to the length of the original copyrighted piece. With text, we understand that claiming fair use is very different if you’re copying one line out of a program code versus one line out of a haiku. The same standard applies to video. With video, a lot of what we’re talking about has to do with short-form content. In short-form content, taking a quote and small bits raises the risk of infringing on the fair use doctrine. That’s a key challenge: with video, how much of the work can you quote?

The third key challenge is the same as before – infrastructure. I would still need to have an infrastructure to even be able to share that fair use portion of the video. Even if I just want to quote that video, I still need to own all the rights to actually playback that video.

These are just some of the reasons why the concept of fair use in video gets very, very complicated.

Challenge of education of fair use issues with online video

Me: How well do you think the public at large understands the issue of fair use? My attitude is that much of the public and the general business community are largely ignorant, and have some strong misunderstandings.

Dr. Shay: I tend to agree with you that the public doesn’t really understand fair use with online video. On a scale of 1-10, I would say their understanding level is about a 2 or 3. They don’t understand the complexities; they don’t understand what infringing content means.

But part of the ignorance comes from changing attitudes with the younger generation, about what is considered acceptable. If you talk with anybody under 20, they don’t typically consider file sharing as stealing. Attitudes are clearly changing. 99.9% of the content online may actually be copied – copied from a friend, a user-sharing site… and because of that there is a tremendous amount of illegally-used content. In that sense, the fair use question is important about dealing with copyright infringement. That’s especially a big problem on YouTube today. The public is completely not aware of that.

Prediction for legal advances with online video: “better than free.”

Me: As technology becomes more advanced and more sharing goes on, what are your predictions for how this will affect the culture, business, and legal protections with online video? Will businesses adapt to this sharing culture? Will they be more apt to allow for the sharing, if they can provide the best-quality, authentic copy of the video content?

Dr. Shay: I certainly hope so. We’re seeing a power shift in the way that media works. The prevalence of this media makes it so easy to put your hands around it, that the business models around online video are going to change.

I’m a big believer in what some like to call “better than free.” The fact that you can get the content for free – legally or illegally – are pretty much given. But I can also get the content on a professional source, like iTunes. And if the quality on iTunes is better, I’m willing to pay for it. What happens is that I get authenticity, I get immediacy, and I get quality. That’s what I mean on people willing to pay for that, in that it’s “better than free.” I think that’s going to be the biggest strength in media in the years to come. It’s not going to be a question of whether or not I can get the material. It’s a question of whether I can get it “better than free.” Whether it’s an application model, or a subscription model, or a fixed-dollar model – it really doesn’t matter. The added value is there.

That’s what we’re doing in our business at Kaltura. We’re helping get the cost of video applications close to free as possible. The reason that its a good business for us is because we charge only for services and support. So you can get it for free; but if you want help with security, mobility… you can buy additional services. I think that’s going to be the way how the general media landscaping is changing, and will be changing. We’re going to transition from an economy of, paying-to-own the pieces of content, to sort of a set of services around the content. There are still going to be people who are willing to pay, and as the market transitions into… the issue of ownership and licensing become less relevant. Its less relevant if I actually own a song or a video, if say I am willing to pay more for quality and special features such as, say, automatic translation. I think the history of media has show us that as time goes by and the public becomes more educated, the problem of copyright infringement of online video is going to lessen and lessen.

Links and Resources

Fore more information on the subjects mentioned in this interview, check out the following links:

About Dr. Shay David

Dr. Shay David specializes in collaborative and open-source information and communication systems. His academic background is a combination of computer science and politics – with a focus on collaborative systems, participatory information networks, and the reputation economy. 
Shay is also a fellow at Yale Law School’s Information Society Project where he contributes to the global Access to Knowledge movement. On his bio, Shay says that he loves to travel around the world and meet people that are helping bring the open-source revolution to various parts of the economy.


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