The Association for Civil Rights in Israel (ACRI) condemned the hasty decision taken by the owners of the copyright of the song “We Are the World” to demand the removal of the satirical video from YouTube. Given the circumstances, YouTube was forced to takedown the video from its site – but U.S. copyright law allows the video’s producers to demand that YouTube return it online, as it seems to qualify as fair use.
Freedom of expression also applies to satire and parody, and these formats must be protected both online and offline.
ACRI Board Member Dr. Michael Birnhack explains: “U.S. copyright law provides hosting websites such as YouTube with immunity from legal liability, if they meet certain criteria, known as the ‘safe harbor.’ In the case of YouTube, the principal criterion is a policy of ‘notice & takedown.’ A similar policy exists in the European Union, and Israeli courts have also adopted it. YouTube does not have much of a choice other than removing the material immediately under threat of legal action. However, the law allows the satirists to insist that the content be returned online.”
Even though in the framework of this policy, videos are removed too readily, this policy is preferable to a hypothetical situation in which the hosts would independently edit content uploaded by users. If this were the case, censorship would be much harsher.
Dr. Birnhack continued: “This policy has some well-known faults and drawbacks, and one of them is its exploitation by copyright owners. If a video is removed from YouTube, and its producer is certain that the content in the video qualifies as fair use under the copyright act, the producer can appeal the removal of the video and demand it be returned to the site, according to U.S. law. The content producer can also approach Chilling Effects which works to promote freedom of expression and to diminish the use of copyright law’s ‘chilling effect.'”
