The Clicker: YouTube and fair use, a match made in heaven

Every week Stephen Speicher contributes The Clicker, an opinion column on entertainment and technology:

Riddle me this: what do you get when you combine a nifty little piece of Flash software, some backend mojo, an army of cellphone-toting teens, and one "Lazy Sunday" clip? The answer is, of course, the largest online video streaming service on the planet, YouTube.

While YouTube is preparing to celebrate just its first birthday, the upstart media company is already changing the face of the web. Modern surfers won't surf long without running into the seemingly ubiquitous YouTube player. Whether it's being used by the politicos pointing to Stephen Colbert's all-out Blitzkrieg on the President or, on the lighter side, by budding young directors, actors, and athletes eager to show off their Ninja Skillz, Light Saber Skillz, or Soccer Skillz, YouTube is quickly becoming the micro-content provider to beat. YouTube's traffic (well over 30 million streams per day) bests its nearest competitor, Yahoo, by 100 percent. Other giants such as Google and AOL lag even further behind.

The secret to YouTube's big success? Thinking small. While other players spent the bulk of their time and effort courting the media giants and their large video catalogs. YouTube courted, well, you. More specifically, YouTube made it ridiculously easy to upload and post videos shot on cell phones, camcorders, etc. This led to an explosion of both their viewership and their “catalog.” It's this grassroots support that's led to the company's phenomenal growth.

That's not to say that YouTube's success has come entirely from amateur content. Like all newly-emerging media companies, YouTube has had its run-ins with the established media giants. Earlier this year, YouTube was on the receiving end of an NBC nastygram which ever-so-politely requested the removal of the cult hit "Lazy Sunday" (aka The Chronic-what-cles of Narnia" ). The company acquiesced (as is its policy) and removed the offending clip. Perhaps as a result of this (and other network threats requests) YouTube made some modifications to its policies in order to avoid future copyright issues. Most notably, the company now limits the length of uploaded videos to 10 minutes or shorter.

Ironically enough, however, it's YouTube's philosophy of small, digestible content and their willingness to avoid copyright issues that has positioned them to answer the age-old question of “What is fair use?”

While fair use discussion has, in the past few years, been dominated by DVD ripping and TV Show “sharing," YouTube might just find itself at the heart of the another oft-overlooked aspect of fair use, reporting and education. Just as blogs have re-written the rules of print media, YouTube has quietly positioned themselves (or found themselves) at what could be the heart of the next major copyright battle: video clips. You see, spread throughout the amateur videos are a slew of tightly-edited clips designed to illustrate points. These clips are often the property of a media giant. However, as uploaded and used, many of these clips represent “reporting.”

For instance, maybe you're preparing a blog post about the refereeing in the NBA playoffs. Sure, you could attempt to describe the events in question blow-by-blow. However, that just doesn't have the impact of including the video clips. It's much easier and more effective to just show why Raja Bell was suspended for a game or why Reggie Evans is now the most feared man among the male population. YouTube makes this possible.

In an effort to distance themselves from “works in their entirety” and thus stay on the righteous side of Fair Use, YouTube has attracted a new breed of “reporter.” Sites use YouTube to quickly post video proof of the latest current events or examples of their points.

While, in the past, the RIAA, the MPAA, the NAB, etc. have been able to bully media services that trafficked in copyrighted material, the same brute-force logic of “It's mine, you can't play it” is no longer applicable with much of the YouTube content. Unlike some of its less legitimate brothers, YouTube is doing everything it reasonably can to respect the honest rights of the copyright holders. YouTube has shown very little interest in bolstering its userbase through flagrant copyright violations. YouTube has even been lauded by industry groups for its responsiveness to DCMA issues. However, that's not to say that YouTube will bend to the will of industries.

It's this compliance with the spirit of copyright law that would make YouTube an awfully tough opponent should content owners ever try to challenge YouTube's right to post content. Will big media content owners cross the line with their removal requests? Will YouTube be forced to take a stand? Will they be the advocates of Fair Use that we hope they will be when the content isn't as cut and dry as "Lazy Sunday?" It's unclear. What is clear is that YouTube might just have the ability to wrestle back some of the content-rights users have been slowly losing. Let's hope they exercise it when the time comes.

If you have comments or suggestions for future columns feel free to drop me a line at