Stephen Speicher discusses YouTube's place in the fair use discussion, and how the debate over YouTube could help and answer the "age-old question: What is fair use?".  He first comments on YouTube's amazing rise to stardom, becoming the number one internet video service just a year after its conception.  Speicher explains that YouTube's success stems mostly from its ability to allow users to post videos and view them.  He also points out that while much of YouTube's traffic comes from views of homemade, legal, amateur content, a large bulk of the videos posted on the site are copyright infringers and, therefore, illegal. 

While many of these videos containing copyrighted content are direct copies and obviously illegal,  many of the videos show short news clips from cable television, sitcom or clips of sporting events and other public gatherings.  These "tightly-edited clips", argues Speicher, can be seen as reporting or educational, and therefore within the limits of fair use.  He uses the example of someone blogging about the officiating in the NBA playoffs, saying that while it would be possible to describe each play in detail and then give the thumbs up or down on the refs call, it would be much more practical just to show the clip of the play itself to illustrate your point.  He also mentions the fact that YouTube is positioning itself to be at the heart of this debate by "distancing themselves" from complete works (The ten minute limit on clips is a good example of this).

This fair use argument, while it isn't YouTube's major defense mechanism (that would be the Safe Harbor provision in the DMCA), can help bolster the case for YouTube as a legitimate company.  If YouTube can convince the courts that these clips are fair use, it would eliminate a significant portion of the clips now considered illegal on the site.  With more legal videos, YouTube can make the Sony argument, saying that their company has substantial non-infringing uses.  This precedent has been in place for twenty years and would put YouTube on very solid legal ground.

Riddle me this: what do you get when you combine a nifty little piece of Flash software, some backend mojo, an army of cellphone-toting teens, and one "Lazy Sunday" clip? The answer is, of course, the largest online video streaming service on the planet, YouTube.

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Ironically enough, however, it's YouTube's philosophy of small, digestible content and their willingness to avoid copyright issues that has positioned them to answer the age-old question of “What is fair use?”