Risk and abuse: Everyday copyright enforcement on YouTube
We analyzed 144 YouTube videos to get an understanding of how YouTubers experience copyright law on the platform. The results were fascinating.
By J.E. Gray and D.B. Kaye from Queensland University of Technology, School of Communication and the Digital Media Research Centre
While YouTube’s system for copyright enforcement might be efficient and efficacious for the big media and entertainment companies, it is a minefield for YouTubers. A minefield in which the landmines are copyright strikes, video removals and account terminations.
YouTube’s copyright rules
On YouTube, copyright enforcement is governed in principle by the DMCA which provides safe harbor from liability for copyright infringement to intermediaries that host user content, provided they meet several conditions, including, most notably, the implementation of a “notice and takedown” policy.
Translation: YouTube must remove a user’s post when notified by someone that the post infringes on someone’s copyright. If YouTube doesn't remove it, it might find itself liable for the infringement.
When YouTube receives a copyright infringement notice, the YouTuber who posted the allegedly infringing video will automatically receive a “strike” against their account. One strike results in the YouTuber being sent to “Copyright School” where they watch videos about copyright law. If an account receives three strikes, it may be terminated and all previously uploaded videos removed from YouTube.
This setup works to ensure YouTubers have a strong incentive not to infringe copyright on the platform.
But YouTube’s copyright enforcement system is notoriously prone to error and is pretty much insensitive to exceptions to copyright such as fair use or fair dealings. And, as we found in our study, it is potentially also wide open to abuse.
What we found
In our study, YouTubers perceived copyright enforcement as an ever-present risk to their livelihoods. Even when their videos clearly do not infringe on anyone’s copyright.
A high number of YouTubers spoke about instances of third parties falsely claiming rights to their videos.
One creator argued videos are “taken down if the creator of the original content doesn’t like the criticism of their content . . . they don’t have to prove there’s actual infringement or that they’re doing it out of bitterness”.
Several YouTubers discussed how copyright notices are used to censor video game commentary, particularly in the case of negative reviews or criticism, arguing that publishers were permitted to lodge manual claims with impunity.
Numerous creators spoke about manual claims filed by large music companies that they believed to be made in bad faith.
Several argued Universal Music Group (UMG) frequently submitted false copyright claims. In a video essay about the ways UMG “abuses” copyright, one YouTube creator expressed, “YouTube, as a company, is content to let this happen over and over . . . UMG can send these false claims and face no consequences”.
A handful of YouTubers detailed instances where they had received spurious manual copyright claims from smaller channels in an attempt to extort money from them.
For example, a creator who produces gaming content explained in two videos that they had received a manual copyright claim from a small channel demanding a US$50 gift card to release the claim.
Another YouTuber described how merely speaking the title of a copyrighted work resulted in a takedown notice.
One creator called the manual notice and takedown policy “outdated ransomware” while another said it was a “sword of Damocles”.
So what?
Our data shows how a structural bias toward over-enforcement of copyright negatively impacts digital cultural practice, introducing the perception of economic risk and narrowing the parameters of what can be created and disseminated.
For copyright and content moderation policy, these insights are timely.
In 2020, the European Union proposed a content moderation framework aimed at compelling platforms to act more quickly to remove “illegal” content by requiring platforms to host mechanisms for users to flag content. If these user “flags” are treated as a notice of copyright infringement under the region’s intermediary liability regime, a platform would be obliged to immediately remove the content to maintain its intermediary safe harbor status.
If YouTuber perceptions of risk are in any way accurate, the proposed EU regime has the potential to substantially increase the occurrence of abusive content moderation practices.
A political awakening?
Perhaps most interestingly, what we might also be seeing in our data is a growing political consciousness among YouTube creators.
The most viewed video in our sample (9M views in June 2021) was posted by the highly influential YouTuber, PewDiePie, who called on his 100M+ subscribers to sign a petition specifically protesting Article 17 (Draft Article 13) of the European Union Copyright Directive.
In another video with over half a million views, John Green, co-founder of the popular YouTube channels VlogBrothers and CrashCourse, and founder of the YouTube creator convention VidCon, highlighted the power of YouTube to influence how copyright law takes effect:
“When YouTube changes policies in ways that benefits creators . . . it doesn’t do that for legal reasons, it does that because of creators. Changes to YouTube policies have real-world legitimate effects on IP and how creators interact with it . . . YouTube matters far more than the courts for copyright law.”
Plausibly what we are seeing now is the political awakening of the social media entertainment sector.
What YouTubers can do to manage risk and abuse in the meantime, however, is another question altogether.
For the full details of our study, see Kaye, Bondy & Gray, Joanne (2021) Copyright Gossip: Exploring Copyright Opinions, Theories, and Strategies on YouTube. Social Media and Society, 7(3), pp. 1–12. https://doi.org/10.1177%2F20563051211036940
