This article is a paper I wrote for my University Writing class at Columbia University.

“He who receives an idea from me, receives instruction himself without lessening mine; as he who lights his taper at mine, receives light without darkening me.” -Thomas Jefferson, 1813

YouTube, the world’s most popular video sharing website, allows virtually anyone, from anywhere, to upload nearly any video clip. The advent of YouTube has given people an opportunity to express their deepest sentiments, talents, arbitrary thoughts and incidents. A series of clips by a man who singlehandedly acts out scenes from a movie and Chris Crocker’s infamous “Leave Brittney Alone” video are prime examples of these forms of

self-expression. YouTube’s struggle to find equilibrium between protecting copyrighted material and permitting any video to be uploaded has rapidly progressed since it was launched on February 15, 2005. One issue now is whether or not YouTube’s loose protection against the improper use of copyrighted content and simultaneous role as a creative commons hinders or facilitates creativity. In order for YouTube to survive, it must refine its content management to more effectively prevent unauthorized clips from being uploaded.

On many levels, YouTube appears to promote creativity because it is essentially a digital creative commons. A creative commons is a domain of freely shared information, a realm devoid of copyright laws. Jonathan Lethem, in his essay The Ecstasy of Influence, explains that the commons “belongs to everyone and no one, and its use is controlled only by common consent.” (Lethem, 66) The commons is also “a shared stockpile of ideas…from which anyone could partake without having to pay or ask permission.” (Boynton, 2-3) YouTube embodies the commons because it is free and accessible to anyone and videos are uploaded with the intent of sharing and lending ideas to others. Lethem also explains that “all ideas are secondhand, consciously and unconsciously” and the commons is a basin of ideas that are free to use. (Lethem, 68) When someone uploads a video to YouTube, they are divulging their personal work to be used freely by others. And when someone watches an inspirational video on YouTube, they are then influenced to create and share their own original work and disclose it to the commons. Anyone who uploads a video to YouTube should be aware that it no longer belongs exclusively to them, but to the entire world as well. Furthermore, some authors of videos that exemplify bona fide inventiveness need YouTube as a means of broadcasting their work. Many people do not have access to the necessary resources to widely publicize their videos. With the ease and accessibility of YouTube—taking into account that it is on the Internet—work that may otherwise not be circulated can be disseminated to the world. On one hand, YouTube fosters creativity by allowing users to upload any video clip. On the other hand, copyright advocates would argue that it hinders creativity because it does not strictly monitor the video content uploaded and thus copyrighted material can be uploaded with no compensation to the creator.

While YouTube allows people to exercise their creative freedom, it has also become a medium for the unauthorized use of clips belonging to corporations and artists. Though some videos are of people singing, dancing, skateboarding, or filibustering, other clips uploaded include copyrighted television shows, scenes from movies, and music videos. Those inclined to take original content and use it to create something unoriginal are committing an unfortunate misuse of the commons. For example, earlier in 2008, a high school valedictorian had his title revoked after admitting to plagiarizing two-thirds of his graduation speech from a YouTube video. Cases like this show that YouTube, intentionally or not, is vulnerable to copyright infringement. In Jane Ginsburg’s essay, How Copyright Got a Bad Name for Itself, she finds greedy consumers culpable for copyright’s bad name. “Consumers, for their part, have exhibited an increasing rapacity in acquiring and “sharing” unauthorized copies of movies, and more recently, motion pictures.” (Ginsberg, 1) In the case of YouTube, she would argue that some users intentionally steal ideas from original content for the purpose of disseminating fraudulent clips. As a result, YouTube is a tantalizing temptation for those who wish to bypass copyright laws by allowing nearly any video to be uploaded.

Another problem with YouTube’s method of serving as a creative commons is that it doesn’t properly regulate what videos can be uploaded. The site’s process for removing unauthorized clips only begins after a video has been posted. Apart from basic warnings to its users, YouTube places the burden of policing the Internet on the owners of copyrighted materials. Therefore, a blatantly unlicensed video, such as a clip of a TV show or movie, can be uploaded and left available to watch until the rightful owner demands that YouTube remove it. The process can take up to several months and during this time, the clips can be viewed as if they were perfectly legal. In March of 2008, the media giant, Viacom Inc., felt the repercussions of this inefficient and disorganized system. Viacom, which owns DreamWorks Pictures, Paramount Pictures, and numerous television channels, sued YouTube for one billion dollars. Its main claim was that they had “identified more than 150,000 unauthorized clips of their copyrighted programming on YouTube that had been viewed an astounding 1.5 billion times.” (Viacom, 3) Among other claims, Viacom declared that YouTube directly profits from hosting unlicensed material, intends for the material to remain on the site, and purposely has a flawed filtering system to ensure infringed clips are watched as much as possible before they are forcibly removed. Viacom claims that YouTube profits through advertising sales due to more users watching unauthorized clips and that it had evidence that it suffered a tangible revenue loss that directly correlated to YouTube hosting the clips. The case remains pending and no additional court date has been set. In this example, YouTube hinders creativity because its weak monitoring system leads to massive copyright infringement. When corporations such as Viacom profit from their copyrighted material, they are incentivized to continue producing more. However, if these companies continue to experience revenue loss as a result of their content being stolen, their impetus to create new shows and movies will disintegrate. Nevertheless, do people who oppose YouTube see any creative value in it that may explain why it loosely regulates clips?

Douglas Lichtman, a member of Viacom’s legal team in its lawsuit against YouTube, wrote an article explaining why he chose to oppose the world’s largest video sharing server. Lichtman doesn’t believe that YouTube should be eradicated, but in his essay, The Case Against YouTube, he explains that the site is an invention in dire need of structural improvement. He understands the site’s concept, but believes it is not being carried out properly at the moment. “I like the idea of a website that helps aspiring producers and amateur filmmakers distribute their work to the public. That said, YouTube has been, throughout its existence, a haven for copyright infringement.” (Lichtman, 2) His solution for preventing YouTube from consistently breaking copyright laws is that “the law must demand reasonable precautions both at the design and operational stages of a technology.” (Lichtman, 2) Therefore, he thinks that implementing a stricter filtration system to prevent infringed content from being uploaded is the only way to prevent YouTube from allowing unauthorized content. He further explains, “Those who own and operate a new technology must feel constant pressure to account for the copyright implications of their decisions.” (Lichtman, 3) YouTube’s weak protection of copyrighted material leads to cases where blatantly pirated content is illegally uploaded, but sometimes the legality of these alleged “pirated” videos is questionable.

For instance, most people would concur that a 30 second video of a 13-month-old baby dancing around the kitchen with the distorted, blurry track “Let’s Go Crazy” by Prince playing in the background, is not an attempt to benefit from stealing the song. Stephanie Lenz was under the same impression when she shot the video of her son Holden dancing to Prince’s 80’s classic. In order to share the short home movie with her friends and family, Lenz uploaded the video to YouTube. Within four months, Universal Music Group (UMG), the group that manages Prince’s copyrights, demanded that YouTube immediately remove the clip. YouTube complied, leaving Stephanie Lenz confused as to what she had done wrong. “For me, YouTube was a free site where I could post my short home movies so that my mother in California could see her grandchildren (and so my friends around the world could see my kids),” said Lenz in an e-mail she wrote to me. “To me, it’s no different than my sister-in-law putting a videotape in the mail fifteen years ago,” Lenz said. Lenz, angered by the video’s removal, decided to take her case to court and challenge the six billion dollar per year music label.

A foundation called the Electronic Frontier Foundation (EFF) agreed with Lenz and determined that the issue was a case of “fair use”. Fair use is a legal ideology that permits limited use of copyrighted material without express written consent of the owner. UMG argued that fair use is only taken into consideration after the clip is removed, regardless of whether or not the video falls under fair use or not. Lenz won her case and was allowed to keep the video of her son on YouTube. This case exemplifies an avaricious company (UMG) being stringently sensitive as to what it considers its property. Companies like UMG tyrannize fair use through their overzealous efforts to hoard every iota of what they produce.

Lawrence Lessig, in his article In Defense of Piracy, finds Lenz’s case to be a prime example of corporations impeding fair use. Lessig explains that cases like this should never have to occur because he thinks that stricter laws on copyright “makes it difficult, sometimes impossible, for a wide range of creativity that any free society — if it thought about it for just a second — would allow to exist, legally.” (Lessig, 3) He believes that YouTube epitomizes a gradually eroding creative commons and this worries him. There have been dozens of cases like Stephanie Lenz’s, but they usually go unnoticed and, consequently, the commons continues to shrink.

A deteriorating commons, according to Lethem, is a profound problem because he believes that “Honoring the commons is not a matter of moral exhortation. It is a practical necessity.” (Lethem using Bollier, 67) Lethem understands that free sharing is essential to creativity. He further explains that supporters of the commons need to do everything in their power to prevent it from continually shrinking. Members of the Copy Left Movement, a group that believes copyright has become progressively stricter and fears that America is becoming less creative as a result, says:

“Borrowing and collaboration are essential components of all creation

and caution against being seduced by the romantic myth of “the author”: the lone garret-dwelling poet, creating masterpieces out of thin air.” (Boynton, 2)

YouTube is a catalyst for creative freedom, but the pressure for it to impose stricter copyright laws threatens inventiveness. Thomas Jefferson, however, believed that copyright is a “necessary evil”. (Lethem using Boynton, 63) This is because without copyright, the incentive to create and divulge work to the world would evaporate.

YouTube has rapidly become a staple of the virtual community. While the site serves as a creative commons, its loose system of preventing unauthorized content from being uploaded has led to countless copyright infringement cases. Is the creative commons of YouTube so important that corporations should relinquish their ownership of clips? The prospect of corporations no longer copyrighting their material is unfeasible. Instead, YouTube needs to implement a firm and effective process for preventing copyright-infringing clips from being viewed. Without this, the commons of YouTube may be dismantled, which would be a harsh damper on self-expression. Preventing the infiltration of copyrighted clips will not only allow YouTube to remain online as a creative commons, but will protect the property of corporations like Viacom and individuals like Prince, who would otherwise cease production of original content due to lack of financial incentive. YouTube is a vat of creative material that is unfortunately mixed in with unoriginal, pirated clips. Creativity can be encouraged if there is a stronger gatekeeper protection process on YouTube. If properly measured, the system can protect artists’ and companies’ content, while not unduly limiting creativity.

Photo courtesy of badboyuk