‘The Hateful Eight’ producer Richard Gladstein weighs in on Google’s Fair Use defense.

By Richard Gladstein

“Fair Use” is an important exemption and distinction to copyright law. It permits non-copyright owners to engage in analysis, criticism, and parody of copyrighted material. It also grants permission to artists to build upon other artists’ works by mixing and changing elements of the past work to form a new work. Such is the case with Andy Warhol’s Campbell Soup paintings or how George Lucas created Star Wars from the inspiration of themes first explored by Joseph Campbell and Akira Kurosawa.

However, the “Fair Use” provision and debate has also proven to be an extremely useful tool for those looking to distract from or ignore the real copyright infringement issue: piracy.

Such distractions include Google’s recent announcement that they will be offering legal support to “a handful of videos that we believe represent clear fair uses which have been subject to DMCA takedowns.” Fred von Lohmann, Legal Director of Copyright at Google, noted in a recent post on Google’s Public Policy blog: “More than 400 hours of video are uploaded to YouTube every minute.” As the third most visited site on the Web, YouTube occupies an important place in the discussion of online copyright infringement.

The criteria and definition of what constitutes fair use is a long-cherished and worthy debate. In fact, I agree with Mr. von Lohmann when he says, “Some of those uploads make use of existing content, like music or TV clips, in new and transformative ways that have social value beyond the original.”

However, it should be noted that the search behemoth won’t be defending every takedown notice, but said they will select a “small number of videos” they believe “will make a positive impact.” Would you care to guess how many videos they’ve selected? Turns out, it’s four. Jonathan Bailey at Plagiarism Today points out, “That’s 0.0000005% of all users.”

As Stephen Carlisle, Copyright Officer of Nova Southeastern University, describes it:

“The new policy is really nothing more than a publicity stunt, designed to encourage more people to upload to YouTube videos of dubious legality, while at the same time acting as an intimidation tactic to discourage the filing of valid takedown notices.”

But let’s get to the heart of what is really the issue.

There is no way that the uploading of entire programs and movies to YouTube and other video hosting sites falls under “Fair Use.” What Google and other search engines are doing when they direct a user to those files is aiding and abetting criminal activity. Their incessant attempts to argue that there is a “Fair Use” problem is meant to deliberately obscure the real and massive problem of tens of millions of illegal downloads of entire songs, albums, movies, and TV shows.

I had the distinct pleasure of speaking with Mr. von Lohmann as we both participated in a recent House Judiciary Committee copyright review listening session. Because I am not as concerned with “Fair Use” distinctions and more concerned about access to and piracy of programs in their entirety, I asked him why Google seemed to successfully block certain illegal activity, such as child pornography or ISIS beheading videos, but seemed utterly helpless to do anything about the wholesale theft of movies. He answered, “We are not in a position to decide what is legal and what is illegal online.”

I don’t buy it.

Google and YouTube are, respectively, the first and third most trafficked websites on the internet. Their success is based, in part, on building sophisticated technical platforms – which leads me to question why they are unable to create and apply technical solutions to identify where illegal activity and copyright infringement are occurring and stop directing audiences toward them.

Our industry is facing a content theft epidemic regarding the viewing and downloading of content in its entirety. Such activity results in financial losses to many hard-working crewmembers, actors, and other professionals as they receive less of their rightful share of residuals that fund their pension, health, and welfare benefits. Distributors and financiers also receive less than their rightful share of revenue. This causes fewer and fewer films to be made each year.

Google and YouTube have the ability to create a vaccine that could eradicate the disease of content theft. But to the millions of us who watch as our works are stolen over and over and over and over again, millions and millions of times, Google is at best offering us an aspirin, and at worst, ignoring the disease.

All I ask of Google is that they show respect for all creatives and copyright owners and not infringe on the gift of what we already own – the legal right to share our work with the public in the way we choose, at the time we choose, and allow all crews and financiers to receive the financial benefits they rightfully deserve.

Richard Gladstein, president and founder of FilmColony, is a two-time Academy Award nominated producer. His newest film, The Hateful Eight, written and directed by Quentin Tarantino, was released on Christmas day. His previous films include Finding Neverland, The Bourne Identity, Pulp Fiction, The Cider House Rules, and others.