Here’s What’s Wrong With YouTube:

Alienating Creators through Unequal Copyright Enforcement

“Connor Goes to Hollywoood: Chasing Stardom in YouTube’s Crowded Universe,” is a story of a young YouTube creator set on making the jump from YouTube celebrity, to actual celebrity. Author, Ryan Bradley catches Connor at a defining moment in his career as he is preparing to attend VidCon, a conference that began in 2010, mostly for YouTubers like Connor, but has since expanded to include Viners, Snapchatters and Facebookers, including their impressively loyal fans. The conference creators (YouTube celebrities in their own right), the VlogBrothers — John and Hank Green, saw an opportunity to apply pressure to the pulse of digital innovation. In their own words, they describe why: “We are in the very early, defining moments of an extremely powerful global force.” They are correct, “one year’s VidCon attendee is the next year’s superstar.” Pace plus consistency are what distinguish YouTube from other media behemoths because it is a place where “entire genres are created in the time it takes a full season of TV to meander its way to conclusion,” and has been a mainstay for digital creators since its inception.

YouTube is the ultimate textbook. It’s the purveyor and explainer of culture. It’s a place where human beings can not only create, but collaborate. For creators like Connor, YouTube is an avenue through which expression becomes career. A place where definitions of celebrity are changed in a nanosecond. It’s a new frontier. Yet, purveyors of this unique landscape may or may not be aware of the less inspiring aspect of YouTube — its complicated and often unfair relationship with Copyright law, which for all intents and purposes is the most influential body of law affecting online creators. As a result of this storied past and murky present, when the dust settles, creators are often the only ones left behind.

Copyright law is derived from the United States Constitution Article 1, section 8, clause 8 which vests Congress with the power to “promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.” This law tries to encourage the creation of art and culture by rewarding authors and artists with a set of exclusive rights. What it actually does, specifically within the digital landscape, re: the World Wide Web, is hinder creation and progress.

Consider Angry Joe, a well-known video game reviewer who in 2013 uploaded a video to YouTube departing from his usual content which includes theatrics, visual effects, and insightful commentary, to reveal a more heated tone. Angry Joe was, well, angry! Rightfully so. Out of over five hundred videos, remarkably sixty-two had been “flagged” for alleged copyright infringement. Instantly, the income he was receiving from his videos was halted. Angry Joe, like Connor and millions of other creators utilized his videos and YouTube channels as supplemental, if not, complete income. Angry Joe found himself face-to-screen with YouTube’s ContentID technology. ContentID is an over-sweeping response to a mass proliferation of videos uploaded to YouTube in proportions so exponentially large, that individual case-by-case checks for copyright infringement became impossible. In theory, it protects copyright owners. In practice, it eliminates revenue and sometimes livelihoods of the very creators that thrust YouTube into media behemoth territory.

ContentID consists of a database including both audio and video files which copyright owners submit to YouTube. If a copyright owner submits a claim regarding a video that includes content that matches the audio or images they own, the system compares the submitted files with those uploaded to YouTube. If a match is found, the system automatically submits a ContentID claim to the uploader. This is problematic for a number of reasons. First, the effect of the ContentID claim is left to the discretion of the copyright owner, regardless if the claim is frivolous or abusive. Second, some ContentID claims prevent certain material from being available on YouTube. In Angry Joe’s case, a video not being available is an automatic loss in revenue. Third, there is basically no option for an alleged infringer to refute the validity of a ContentID claim, prior to taking action. This, ultimately is the most problematic aspect of this technology.

An example. Imagine your livelihood depends on your artwork. Imagine you are venturing into the world of collage which means parts of your work are derived from other previously existing works, yet your final product is something novel, transformative. Now imagine the creators of the previously existing works you utilized in your pieces file a copyright infringement suit against you. In the real world, you would have an opportunity to defend the validity of your work in a court of law before any adverse action is taken against you and your work. In the YouTube universe, however, your opportunity to defend yourself becomes available after your work would be removed from galleries, shelves, websites, etc. (Side note — collage is an art form that is considered non-infringing in copyright law, save for a few specific criteria. Why this legal protection does not extend to YouTube creators, remains a complete mystery).

This skewed process set the stage for the landmark lawsuit, Lenz v. Universal Music Group, also known as, “The Dancing Baby” case. On February 7, 2007, Stephanie Lenz uploaded a 29 second video of her two children dancing to Prince’s “Let’s go Crazy.” She titled the video “Let’s Go Crazy #1.” About four seconds into the video, she asks her thirteen-month old son “what do you think of the music?” after which he bops ups and down while holding a plush toy. At the time Lenz posted the video, Universal was Prince’s publishing administrator responsible for enforcing his copyrights. To accomplish this objective with respect to YouTube, Universal’s head of business affairs assigned an assistant in the legal department, to monitor YouTube on a daily basis. He searched YouTube for Prince’s songs and reviewed the video postings returned by his online search query. When reviewing such videos, he evaluated whether they “embodied a Prince composition” by making “significant use of … the composition, specifically if the song was recognizable, was in a significant portion of the video or was the focus of the video.” According to Universal, “[t]he general guidelines are that [we] review the video to ensure that the composition was the focus and if it was we then notify YouTube that the video should be removed.” The legal assistant contrasted videos that met this criteria to those “that may have had a second or less of a Prince song, literally a one line, half line of Prince song” or “were shot in incredibly noisy environments, such as bars, where there could be a Prince song playing deep in the background . . . to the point where if there was any Prince composition embodied . . . in those videos that it was distorted beyond reasonable recognition.” The Court accurately noted that none of the video evaluation guidelines explicitly include consideration of the fair use doctrine.

Fair Use

Say for instance, you the collage artist in the aforementioned example, get your day in court, not in the YouTube universe, in the real world. Your defense would likely be, fair use as your work is considered a derivative work. Fair use is one of the best defenses to an action for copyright infringement because the principles behind its inception are designed to foster creativity. It encourages content creation even if the content is derived from the work of another, as long as the work meets the four fair use factors used by courts in these types of cases.

When Universal’s legal assistant reviewed Lenz’s video, he recognized “Let’s Go Crazy” immediately. He noted that it played loudly in the background throughout the entire video. Based on these details, the video’s title, and Lenz’s query during the video asking if her son liked the song, he concluded that Prince’s song “was very much the focus of the video.” As a result, Universal decided the video should be included in a takedown notification sent to YouTube that listed more than 200 YouTube videos Universal believed to be making unauthorized use of the song. In response, YouTube removed the video and sent Lenz an email on June 5, 2007, notifying her of the removal. Both Lenz and universal engaged in a legal tête-à-tête resulting in the court’s decision that any copyright infringement notification must be preceded by a fair use consideration. The court did not offer much guidance as to how that consideration might be made, nor to what extent fair use should be considered, but it did provide the standard that alleged infringers should be offered an initial benefit of doubt from copyright owners.

The case predates ContentID, but it demonstrates the disconnect between law and reality on the internet. Fair use, as a legal concept, protects creators who utilize preexisting works to create something new. YouTube’s ContentID system, while effective in detecting outright infringement, also directly and adversely affects legitimate uses of copyrighted content (fair use). The recourse for users falling under the fair use umbrella is less than ideal as no one outside of the copyright owner reviews disputed, likely fair use, claims. According to YouTube, once a dispute is filed by the alleged infringer, all recourse rests in the copyright owner’s control: they can choose to respond to the dispute within 30 days, they can file a court order requesting the video permanently removed, they can file a copyright strike on YouTube resulting in the automatic take down of the video, or they can choose to cancel the appeal. As a result, the alleged infringer literally has no real power in disputing a ContentID claim.

YouTube, a community of creators such as Connor, Angry Joe, Stephanie Lenz, is a platform for collaboration. It’s a platform for expression. Creativity usually requires a combination of prior ideas and work, and such combination, is routinely accelerated by collaboration. We see examples of this as clip content — copies of small portions of preexisting works — is used in YouTube video. As legal expert, Taylor Bartholomew notes, “YouTube allows creators to recapture the shared experience of American media.” This ability to share and discuss clips, he continues, is “crucial for expanding important cultural discussion into cyberspace.” Successful collaboration involves individuals building on each other’s ideas in a synergistic manner that enhances individual creative activity. This is evident from the myriad of “react” videos made by YouTube users and others. For YouTube users, the expansion of cultural debate onto the internet is a natural, non-threatening, evolution. Strict enforcement of copyright, without a viable opportunity to prove fair use, threatens the creative process and the use of pre-existing clips to enrich cultural discussion. This paradigm threatens to shut down emerging works, which have the potential to be important contributions to our culture. By foreclosing the opportunity for users to have a viable recourse against copyright infringement claims, YouTube has threatened the creative freedom that their users are entitled to. YouTube is alienating the community responsible for its popularity.