Ripped and Unclipped: Camming and Reaction Videos

Dear Rich: I plan to record an entire episode of a Netflix series through a webcam (therefore seriously depreciating its visual value) and record the audio through a microphone picking up the sound through a speaker (thus very much ruining the audio) and angle the camera so that I am visible and can make commentary. Is it fair use to use the entire unclipped episode, if, throughout my recording, I am making commentary on the episode I am watching?

Your project may qualify as fair use. What you are proposing combines the reduced quality video of "camming" -- when pirates set up webcams in movie theaters --  with reaction videos -- when a video is shown along with commentary or other "reactions." Although camming is an infringement (the purpose is to sell bootlegs), reaction videos can qualify as fair use, a copyright principle based on the belief that the public can freely use portions of copyrighted materials for commentary and criticism purposes. For example, a judge ruled that a reaction video that combined unauthorized content (from a YouTube video) interspersed with commentary from two YouTube celebrities was permitted as fair use.

The factors? A judge, when determining fair use, must consider four factors  

• the purpose and character of your use. The first factor weighs in your favor because you are commenting upon the video.
• the nature of the copyrighted work. We can't help you with the second factor because we don't know whether you are copying a factual or fictional work (and in any case, the second factor usually has little effect on the outcome).
• the amount and substantiality of the portion taken. In the case mentioned above, the YouTube celebrities copied three minutes of content from a five-and-a-half-minute video. In your case, you're copying the full episode. Copying a complete work is usually interpreted against a fair use claim. That's not to say you can't win a fair use ruling. Forty years ago, the Supreme Court permitted copying of a complete television program.
• the effect of the use upon the potential market. As to the fourth fair use factor, courts are interested in whether your video serves as a "market substitute" for the Netflix episode.Your degraded audio and video work in your favor as does the commentary. According to the Supreme Court  "the role of the courts is to distinguish between biting criticism that merely suppresses demand and copyright infringement, which usurps it." In short, if what you are doing is more like camming and less like a reaction video, you'll have  a harder time making a fair use claim.

In any case, if your goal is to stay out of a courtroom and avoid legal hassles, you won't do that by making a fair use argument. Fair use is a defense that is offered after you have been sued. Netflix will have the right to file a lawsuit (and possibly to issue a DMCA takedown notice).