Shooting Down YouTube: Bring Back Kevin Lee's Videos!

Today is a b a d d a y for free online film studies, as Karina Longworth and Matt Zoller Seitz have both ably reported.

And thus it's a pretty terrible day for Film Studies For Free.

You see, dear readers, there are holes in this here blog, gaping ones where Kevin B. Lee's marvellous video essays used to be embedded. Innocently. Not for financial profit. Solely for your film-educational betterment... such is Film Studies For Free's humble raison d'être .

As FSFF informed its readers last November in its Online Film Audio-Commentaries and Video Essays Of Note posting:

Lee is a filmmaker and multimedia producer based in New York City. Shooting Down Pictures primarily serves as a repository for a wide variety of materials connected with his project of viewing every film on the list of 1000 greatest films of all time, as compiled by They Shoot Pictures, Don’t They? Rather than simply writing about, or gathering pre-existing resources together for these films -- both of which Lee does brilliantly, it must be said -- he also makes video essays about them and commissions others to provide their own audio commentaries, including ones by such luminaries as Nicole Brenez, Jonathan Rosenbaum, Paolo Cherchi Usai, Richard Brody, Karina Longworth, Andy Horbal, Mike D'Angelo, Matt Zoller Seitz, Preston Miller, Vadim Rizov, and Girish Shambu.

Yesterday, in Uh oh… Storm’s brewing… and The Storm has Hit, Lee informed his loyal readers that his YouTube account, where the videos were publicly archived, had been 'permanently disabled' due to an INA (presumably Institut national de l'audiovisuel?) claim that the following material was infringing copyright: Video Essay for 932. Et dieu… crea la femme / …And God Created Woman (1956, Roger Vadim). It seems that YouTube has removed all 70 of Lee's videos, including 40 of his original video essays.

As Karina Longworth writes on SPOUTblog, 'Kevin has his own personal archive and can potentially re-upload the clips; he says he’ll investigate other online video sharing options. But YouTube is still the biggest game in town, and Kevin says he’ll miss it' and especially '"the right to share my work in the first place.”'

As Film Studies For Free's normal stock in trade is cheerful and positive commentary, it doesn't usually find itself getting angry. But this news made it fume, and sent it off to the e-barricades!

It couldn't agree more with some of the readers' comments about YouTube's actions, linked to Longworth's post, which are, therefore, worth citing here.

• Glenn Kenny of Some Came Running wrote: 'Talk about kicking the wheels off the cart, and then shooting the horse. Kevin’s critical essays probably netted no small amount of income for the copyright holders by turning people on to films they might not have otherwise bothered with.'
  
• Bill Georgiaris of They Shoot Pictures, Don't They? adds: 'It’s YouTube’s random attempts at abiding by copyright laws that makes their overall ‘control process’ laughable. Kevin’s insightful little essays ‘pinching’ a minute here and a minute there (mostly from films most people aren’t interested in anyway) get the boot, yet you can log on and watch Eastwood’s “Unforgiven” (along with many other well-known films) in its entirety!'

Perhaps quite hopefully, though, 'Theodore' of Serious Business noted: 'I have a lot of my own found footage films on YouTube, in which I use a lot of copywritten works. After I received a copyright notice, I sent a letter of dispute explaining why my work falls under the “fair use” category. YouTube gives you the option to do this. Soon after, YouTube put the video backup on their site.'

Film Studies For Free wishes to express its solidarity with Kevin and really hopes that something can be worked out quickly to get his inspirational video essays back online. But its readers might like to join with it as it prepares itself for what will almost certainly be a much longer fight in defence of Fair Use, and in the pursuit of more Open Culture and more Open Access scholarship.

In the spirit of the above, please check out the following really useful links on Fair Use:

• The comments to Matt Zoller Seitz's post "Copy Rites: YouTube vs. Kevin B. Lee"
• Kristin Thompson's important 2008 post Fair is still fair, and more so at Observations on film art and FILM ART
• Center for Social Media’s “Documentary Filmmakers’ Statement of Best Practices in Fair Use” (2005) and its follow-up on the statement’s impact (cited by Thompson)
• "The Society for Cinema and Media Studies’ Statement of Best Practices for Fair Use in Teaching for Film and Media Educators,” in Cinema Journal Volume 47, no. 2 (2008) or onlineHERE (also cited by Thompson)
• Henry Jenkins' great 2008 post Fans, Fair Use, and Transformation
• The Organization for Transformative Works (cited by Jenkins).
• Patricia Aufderheide's brilliant 2008 post Political Remixers and Fair Use Best Practices (also cited by Jenkins).
• New York remix artist Jonathan McIntosh's Code of Best Practices in Fair Use for Online Video (cited by Aufderheide)
• Duke University's Center for the Study of the Public Domain has lots of great links about copyright, fair use, and intellectual property issues.
• See also FSFF's post Documentary filmmaking and intellectual property law: free e-book and short films about the Center for the Study of the Public Domain.

And finally, FSFF readers can note the basic principles of Fair Use, as set out by the Center for Social Media Code of Best Practices in Fair Use for Online Video (p. 6), as follows:

In reviewing the history of fair use litigation, we find that judges return again and again to two key questions:

• Did the unlicensed use "transform" the material taken from the copyrighted work by using it for a different purpose than that of the original, or did it just repeat the work for the same intent and value as the original?
• Was the material taken appropriate in kind and amount, considering the nature of the copyrighted work and of the use?

Both questions touch on, among other things, the question of whether the use will cause excessive economic harm to the copyright owner.

If the answers to these two questions are "yes," a court is likely to find a use fair. Because that is true, such a use is unlikely to be challenged in the first place.

Another consideration underlies and influences the way in which these questions are analyzed: whether the user acted reasonably and in good faith, in light of general practice in his or her particular field.

P.S. FSFF urges you also to take in the following, probably highly prescient, words by Luke McKernan, commenting on a different issue, over at the great new Screen Research blog (FSFF will write more about this site very soon): 'I think the story of 2009 is going to be the undermining of YouTube, as services based heavily or exclusively on commercial content - Hulu.com and now CBS's TV.com - come galloping up the rails, while YouTube staggers along, burdened by too much user-generated content'.....