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In which Hank discusses what intellectual property is, and how copyright is increasingly being policed by dumb robots that don't have very much to do with the law, but have everything to do with it just being REALLY COMPLICATED and there being terrifyingly massive amounts of media to regulate.

What to do about copyright claims:

What is (and is not) Fair Use:
Good morning, John. 

Last week I sent you a song about your inflamed nervous system using the instrumental track from Calvin Harris's dance song "Summer."

This was a blatant violation of copyright. I just stole it! But somehow, that's okay. We live in a brave new copyright world and the solutions really aren't legal anymore, they're technological. 

So for the people out there who are making content and are confused about copyright, this is the bizarre state of intellectual property in the United States, in four minutes.

Okay. Intellectual property is the idea that you can own things that are not physical objects, but are still things. There are three different ways to own intellectual property in the U.S. If you just create something, like I'm creating this video right now, that is protected by copyright. I own this video. Cause I made it!

Ideas though, cannot be copyrighted. They can sometimes be patented. Though obviously the idea of controlling an idea is a little bit more weird and scary. 

So the U.S. government regulates patents. You have to apply for them, and be granted them. 

And finally we have trademarks, where you want to assign a symbol or a set of words to a corporation or a product. Like the logo of McDonald's and the word McDonald's and the phrase "I'm lovin' it" are all trademarked by McDonald's, so another person can't set up a restaurant that looks and acts and sounds like McDonald's but isn't owned by McDonald's.

For the average person who creates or enjoys creations, copyright is the most interesting one of these, and it started out very simple. The idea was hey, I made a bunch of words in an order. And thus I should be able to own those words in that order, and someone else can't come along and put all those same words in that same order and say "This is now my book and you can buy it from me."

Which is something that actually used to happen all the time. To make that law, you say that you have to have the rights to make a copy of the thing and you call it copyright. 

Simple! No it's not. In order to critique a work or to critique society, sometimes you have to use little bits of the things that society creates. Say I want to make a video on violence in contemporary cinema. I might want to use a clip from Reservoir Dogs to help me illustrate my point. That should be - and is - legal. It's called Fair Use. Basically that's the use of copyrighted material for societal good. And it also has to be inside part of another work that could not exist in the same way without the use of that copyrighted material. 

Now there are things that are definitely fair use and that no one will sue you for, because any judge in their right mind would call it fair use. But that doesn't necessarily mean that it IS fair use; the only person who can decide whether something is fair use or not is a judge.  Which brings me to the bizarre state of copyright today, especially on YouTube.

It's much more of a technological system than it is a legal one because there is too much content. There is no way a lawyer could 
look at every single video that was uploaded to YouTube! So YouTube has like a robotic lawyer that looks at literally every single video that's uploaded to YouTube and then compares it to a library of, like, just a massive amount of intellectual property. Every song ever released, every movie ever made, every television show ever put on TV - it's called Content ID and it's actually kind of a little bit of a miracle. Like what, really, you can do that? 

So if I upload that video of me talking about violence in contemporary American cinema, and the Reservoir Dogs clip is in there, the Content ID will say, "Yes, there is a clip of Reservoir Dogs," and then they will give the owner of Reservoir Dogs, whoever that is, the right to do whatever they want with that video. They could do nothing, they could take the video down, or the most likely thing that they will do is they will monetize that video for themselves. It's basically like me paying a retroactive license for the use of Reservoir Dogs in my video. But I shouldn't have to do that because it's fair use. So then I would dispute that copyright claim saying that it's fair use and then whoa, who knows where it goes from there? I actually made a whole video about it on hankschannel, you can watch it.

But this is why I can basically steal Calvin Harris's song and not worry about it, because now I get to pay a retroactive license to Calvin Harris. I don't get to monetize that video, Calvin Harris gets the money, but at least this way I don't have to worry about, like, trying to make a deal with Calvin Harris's record label at freakin ten o'clock at night on a Thursday.

But the big point here is that this is not the best solution. It's not the most legal solution, it's not the fairest solution. What it is, is the most possible solution. Really the only possible solution. And frankly, it's kinda cool. I get to violate copyright without having to worry that my YouTube channel is gonna get taken down, YouTube gets to not be sued out of existence, and rights holders get another alternate revenue stream so they can have bigger and more fancy yacht parties. John, I'll see you on Tuesday.