Fairfax and content theft

There’s a heart-warming tale currently running on smh.com.au about a bunch of (presumably) hard-up actors who’ve hit the YouTube jackpot.

So it’s a shame that Fairfax appears to be stealing from them.  

The SMH story tells how the Upright Citizens Brigade Theatre in New York put together a very funny video about the oil spill. The troupe plays a group of BP execs unable to clear up a simple spilt cup of coffee and going to increasingly inept and panicky lengths.

You can see it here:

Funny, isn’t it?

And did you see what I did there? I embedded it from YouTube.

You probably (although you won’t every time)  saw an overlaid ad appear on the video.

That’s because UCB Comedy has its own YouTube channel, and they’ve enabled revenue sharing on the video.

That means that they get to share the revenue with YouTube when advertisers pay to appear.

Considering the video has already had more than 7m views, and improv troupes aren’t famous for being rich, I suspect it’s a big deal to them.

It’s an example of the new digital economy – the popularity and therefore commercial success of the video will no doubt make it easier for them to go on creating new work. When the YouTube content is embedded on other sites, it’s a benevolent little ecosystem – the site gets free content, YouTube gets revenue and the creator gets revenue.

smh_BP_spills_coffeeSo it’s a shame that Fairfax Digital’s answer to this is the sort of thing that gives traditional outlets a bad name – lifting the content.

They’ve downloaded the video and are now playing – indeed, Fairfax being Fairfax, autoplaying – the skit out of the Fairfax Media player. They’ve even stuck a Fairfax Digital watermark over it.

So the only ad you see is the one that Fairfax chooses to play, which happened to be for Kia when I watched. I wonder how they feel as a brand about being associated with stolen property?

When I looked at it on Friday evening, it was the most popular video in the smh.com.au’s technology section. That’ll be quite a few views.

I wonder how much the UCB will be getting from Fairfax for this? Nothing, would be my bet.

There is, I suspect, a flimsy copyright law-based argument that a news outlet is entitled to use clips of content created by others for the purpose of review or telling the story.

Even if it has some legal weight – and I suspect this bends a “fair use” defence so far it would need a remarkably good lawyer to argue in its favour – there’s little moral justification.

As I demonstrate above, it’s easy to embed YouTube videos on any site. So there’s no need for Fairfax to pull it into its own player, except to take all of the video ad revenue for itself.

YouTube’s terms of use include the condition that “You agree not to distribute in any medium any part of the Service or the Content without YouTube’s prior written authorization, unless YouTube makes available the means for such distribution through functionality offered by the Service (such as the Embeddable Player).” A further condition is that “You agree not to alter or modify any part of the Service.” Like sticking the Fairfax Media watermark over it, for instance.

smh_youtube_downfall_ruddYet it’s becoming something of a habit.

A Kevin Rudd remix of the trust Downfall meme has been sucked into the Fairfax video player, again with the YouTube watermark all over it. On Friday night it was the top story on the SMH home page.

So the BP video is not simply a one-off mistake by an inexperienced journalist.

Again you can still see the original on YouTube.

It’s a pity because one of the areas where Fairfax is innovating is around online video. That’s good for the whole industry.

There’s suddenly a race to generate enough video content to keep up with advertiser demand for pre-roll ads. That’s good for independent video creators.

Piracy is not.

(2.30pm Update: Since we published this article three hours ago, the Fairfax Media video player has been removed from the BP story and the Kevin Rudd Downfall video has also been taken down and replaced with actual SMH-produced content. However, for a further example of content lifted from YouTube, see the SMH’s article on Stephen Conroy and the filter which includes a borrowed parody video created by Kogan.)

3.10pm update: I’ve now had the following response from Fairfax Media:

Hi Tim

Firstly, thanks for the article today and the comments raised around Fairfax usage of YouTube clips across its sites.

As you are aware, the principle of fair use is important to all media companies. However, it is not Fairfax’s intention to deny the content potential of rights holders. We are looking into the use of the clips referred to in your article, as well as ensuring our content usage policies are consistently applied.

In the meantime, we’ve changed the clips noted above to make use of the embedded YouTube player.

Thanks again for raising these issues, which I’m happy to say, are now working its way towards a resolution that provides a fair deal for all.


Ricky Sutton, Head of Video, Fairfax Digital

Tim Burrowes

(Fairfax Media has been invited to comment)


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