The Gamers Nexus GPU Blackmarket deep dive was great at digging into this.
https://www.youtube.com/watch?v=1H3xQaf7BFI
And the entire Bloomberg takedown drama added fire to the flames.
And the entire Bloomberg takedown drama added fire to the flames.
And Bloomberg did a DMCA takedown through youtube, copystrike in parlance which pulled the video down for a week. GN had no recourse other than to wait and counterclaim.
Week timed out, Bloomberg did nothing but be the bully.
Louis Rossmann's excellent explainer video here on the Bloomberg bit: https://www.youtube.com/watch?v=6RJvrTC6oTI
As always, Louis is being a bit sensationalist and stretches the truth to whip up outrage. Contrary to what he claims, GN could have easily quoted the president without Bloomberg's video, and that would be fine. "that outlet now has a monopoly on who is able to quote the president" is just a totally false premise. Moreover he tries to argue that GN's video falls under fair use, because it's a 1 minute clip in a 3 hour video. However it's not hard to think of a rebuttal to this. If news organizations can copy each other's clips of official speeches, who would bother going out and making such recordings? Usually how this would be resolved would be by citing precedents, but he doesn't bother citing any.
Brother, wait until you learn about the associate press.
In U.S. copyright law, the four factors evaluated to judge fair use are:
1: Purpose and character of the use: including whether the use is commercial or nonprofit educational, and whether it is transformative.
2: Nature of the copyrighted work: for example, whether the work is more factual or more creative.
3: Amount and substantiality used: both how much was taken and whether it was a qualitatively important part of the work.
4: Effect on the market: whether the use harms the potential market for or value of the original work.
Courts weigh all four factors together. There is no fixed rule like "under 30 seconds" or "under 10%." GN's use seems to satisfy all four factors.
The same AP that licenses content to its members and charges non-members for the privilege of reusing their content?
"Many newspapers and broadcasters outside the United States are AP subscribers, paying a fee to use AP material without being contributing members of the cooperative. As part of their cooperative agreement with the AP, most member news organizations grant automatic permission for the AP to distribute their local news reports. "
> GN's use seems to satisfy all four factors.
It's weakest at #1 and #4.
#1: it's a commercial piece of work (so far as I can tell GN isn't a non-profit), and the use of the clip specifically isn't critical to the work. If you're critiquing a movie or something, and need to show a screengrab to get your point across, then that makes sense, but if the purpose of the video is just to establish "Trump said this", the video isn't really needed.
#4: see above regarding making recordings of official speeches.
Moreover I'm not trying to argue that GN is definitely not fair use, only that there's a plausible case otherwise. If there's actual disagreement over it's fair use or not, then the DMCA process is working as intended, and Bloomberg isn't abusing it as Louis implies.
[responses to edited-out portion of parent comment]
Re: #1, GN's work while commercial is an educational investigative journalism / documentary piece which are well established users of Free Use protection. GN's use is absolutely transformative.
#4: Bloomberg would have to prove a financial loss to have standing. That would mean that GN must have no other option than to use Bloomberg's clip, and pay the license, which I don't think would fly. GN would have just produced the segment differently.
> GN's use seems to satisfy all four factors.
I agree with the parent poster's point: "If news organizations can copy each other's clips of official speeches, who would bother going out and making such recordings?" When you see a head of state (or other VIP) making a speech and they show the media, there are normally 10+ different camera crews. If competitors can claim "fair use" for any of that footage, why would so many different media outlets send camera crews? The question answers itself.
A good counterpoint for fair use would be Wikipedia. They are very conservative about claiming fair use. I assume they have had pro bono (or not) lawyers review their policy and uses to confirm the strength of their claims. After hundreds of hours of reading Wiki, I can recall only once or twice ever seeing an artifact claim fair use. I think it was a severely downscaled photo of a no-longer-living person.
Additionally, folks don't like to rely on free use because the tests, though they have been well articulated, are inherently subjective and must be decided by a judge or jury. It's the sort of defense one wants to have available, but not depend on if possible, as a result.
Re: commercial use, in the US, just because a work is commercial does not automatically mean it loses fair use protection. Commerciality is only one factor of the four to be considered. Commercial parodies, for example, can still be fair use, especially where the work is transformative. IOW commerciality may weigh against fair use, but it is not dispositive. Google v Oracle involved fair use which was clearly commercial, for example.
GN's case would also be helped by the nature of the information being factual as opposed to artistic.
There are a lot of factors in whether or not an org can successfully take something to trial. Venue, judge, representation, jury selection, evidentiary rulings, all kinds of stuff. An imbalance in representation could easily swing it. So when I say that I think GN has a reasonable case, it's just me using the Supreme Court's rubric and some theoretical idealized court room which doesn't really exist. All I can say is that a good job could be done in arguing it. Whether or not GN could afford that work, or would want to, IDK.
In this case this case the purpose is for critique or review and it justifies fair use since the clip is only a small part of the video, GN isn't in the same business as BB and isn't substitutive for BB's work, and the clip was a recording of a factual event and had didn't have a substantial creative element.