youtube-copyright-claim

In mid-December 2013, YouTube’s updated ContentID system affected many channels. One of them was mine.

WatchMojo’s YouTube channel was temporarily terminated and suffered a 21-hour outage after receiving copyright violations that have now been withdrawn. The effects weren’t only felt during that period, either. It took us a week to recover and start receiving our pre-takedown viewership numbers (which you can read all about in my my recap here). As one of the bigger producers and distributors of premium video programming (our YouTube channel received over 77 million views in November and ranked #21 in the world), we license our videos not just to YouTube and the portals, but also to big media companies like Time Warner and FOX; the very same companies that use ContentID to protect their intellectual property, who also reach out to us to market their new releases and franchises.

It’s easy for some to blame creators’ recent copyright woes on YouTube or big media, and yes, the Digital Millenium Copyright Act (DMCA) needs a rehaul. But ultimately, as YouTube has evolved from a user-submitted environment to one housing media companies’ content, the DMCA’s takedown mechanism should no longer be applied to all channels uniformly.

FOX was one of the rightholders that caused our takedown. It’s ironic (or tragic) considering that FOX routinely asks us to promote their shows and Hulu (co-owned by FOX) licenses our content. When you have a heavy hammer of copyright claims at your disposal, everything starts to look like a nail. You start to swing it all around, including at a Top 25 channel with over 1 million subscribers, 75 million monthly views, and 500 million all-time views.

Nonetheless, I don’t blame YouTube. We were lucky. The channel could have been down much longer. When all was said and done, our views bounced back within a week. But the platform is caught between a rock and hard place, accused by some of having done the bare minimum required by the DMCA to grow early on; and others now of doing way too much – prematurely – to please rightholders, possibly in a manner that doesn’t even reflect the full scope of Copyright Law.

Two Sides To Every Story

After all, inasmuch as Copyright law protects rightholders via paragraph 106 of the Act, it also protects organizations via section 107 to create new works, provided they are transformative, pass the four (4) tests of Fair Use (or Fair Dealing in some countries) and don’t cause damage to the value of the underlying, copyrighted works.

What Is ContentID?

YouTube’s ContentID compares uploaded videos with reference files (movies, songs, video games etc.), which rightholders can then manage based on their usage policies. But usage policies tend to be opaque and subjective: it’s unclear what is verboten. Why are some videos left alone while others claimed?

Either way, in some cases, rightholders “Takedown” a video. In other cases, they “Claim” a video and either A) split the revenues with the uploader and Youtube, B) claim it all to themselves, or C) prevent monetization altogether. They can also “Block” the clip entirely in some countries or worldwide (in the latter case, in YouTube’s eyes, a worldwide block is almost as damaging as a Takedown). Here are the features that are disabled when your account receives some of these claims and is no longer in good standing with YouTube.

Having just been given access to ContentID to protect our own videos from copyright infringement, it was instantly clear once I logged in why there are so many false alarms.

I personally feel that ContentID adds an impersonal element of anonymity that has led to a lack of common sense and civility. I understand it’s hard to reach an individual user who uploaded a full-length movie; but to give rightholders access to another media company’s back-end seems excessive. When you consider that media companies are eager to spend ad dollars to reach our passionate audience of young men and license our content, is it normal that a robot can brand us as a rogue operation with no due process?

To be fair, sometimes it’s brazenly precise, but sometimes it’s not. While no one could prevail in a court of law without listing the specifics of an alleged crime, sometimes a ContentID claim asserts “your video may include clips that are owned by a third party.” The system finds you “guilty until proven innocent,” as our takedown experience demonstrated.

It’s like telling a driver they’re over the speed limit but not disclosing what the speed limit actually is. If YouTube allows rightholders to claim or takedown videos based on their subjective claiming policies, YouTube should require them to make those policies public. (For example, I know the alcohol limit while driving is 0.08%.)

Now to be clear, I am not referring to instances where users are uploading full or partial works.  I am talking strictly about making new creations using small portions of other works in a matter that, prima facie, pass the tests of Fair Use.

I’m also focusing on professional organizations. I believe these should be allowed their own “Editorial Policies” that determine how they use third party footage and how they work with rightholders. For example, we license our clips to FOX’s Hulu and Time Warner’s Roadrunner.com. Why does YouTube treat (in regards to ContentID) a 13-year old’s channel almost the same way it treats the channel of a media organization?

After all, the DMCA and YouTube’s takedown process makes sense for a user-submitted environment; but if as a media company we make some representations and indemnify YouTube, then only YouTube should be able to take down our channel as the process could easily be abused as an anti-competitive or anti free speech tool. Imagine CNN publishing a video criticizing 60 Minutes’ Benghazi report and showing a short sequence of 60 Minutes. Right now, CBS could issue a takedown to shut CNN up (to be clear, CBS is one of the most progressive companies out there with regards to this, so this is just a theoretical example). Sure, the clip would resurface, but my point is: the ability to issue takedowns seems anti-competitive, anti-copyright (section 107) and anti-constitutional (with regards to free speech).

More From The Department Of “This Makes No Sense”

When YouTube updated its ContentID policies in early December, we received a couple of automated takedowns. While rightholders can issue infinite takedowns, a channel can only counter three at a time. Again, that’s possibly logical for a channel created by little Bobby who uploads full Game of Thrones episodes to YouTube, but it’s frustrating for a media company.

With regards to the Claims we received, a couple of fundamental questions rose to the surface:

  1. Should a rightsholder claim and/or earn money if someone creates a new work based on a portion of the underlying copyrighted work?
  2. Should a rightsholder be able to block said new work and prevent it from being viewed?

Previously, I saw both sides of the argument. I knew that technology allowed for tracking, so maybe, it was fair for the rightsholder to control how their assets were used? But then I thought of Chris Rock: “You could drive a car with your feet if you want to. That don’t make it a good #$%!ing idea.”

What complicated matters were instances where a new work included countless sources from a plethora of rightsholders, which is usually our case and what makes our clips so transformative. Not only should they be sheltered from Takedowns, but even Claims don’t make sense.

How Would Old Media Behave?

Let’s consider three scenarios:

A) Say Britannica Encyclopedia – a for-profit educational publication – published an article in 1768 on a book (a copyrighted work) or business (a trademarked topic). Would the company have needed permission from the publisher of the book or owner of the business  to use a passage or logo in a new encyclopedia? Would Britannica have had to share revenue when it sold their encyclopedias with references to, or symbols of the copyrighted and trademarked works? I think the answer to both is “No.”

Today, publishing isn’t limited to words and images on paper. Video is a viable and thriving medium for the arts, entertainment, and dissemination of information. So, if a publication can integrate video in a transformative new work, should it be penalized and does it give the publisher less rights under section 107 than previous forms of media? I don’t think so.

B) Imagine if PC Data published a review of the first Windows OS. Would Microsoft, owner of the Windows product, be required to give PC Data the OK? Would Microsoft be able to send PC Data an invoice for a cut of the subscription and advertising revenues PC Data generated? I don’t think so.  In fact, if Microsoft could be in control of that, wouldn’t you only see positive reviews remain online; what incentive would anyone have to publish a negative review, which could either be taken down or hi-jacked to share in the revenue it generates?

C) Now suppose ET (a television show) or Premiere (a magazine) published a “Best Movies of 1981” list and featured images, official release text, and short clips from the movies they chose. Would those studios be able to get a cut? Again, I don’t think so.

Stop Being Hypocrites, People

Whereas rightholders are quick to argue that the Internet should not change the rules of engagement when it comes to copyright infringement (section 106 of the Act which protects rightholders), why are we ignoring the basic protections provided by section 107 on Fair Use, which allows for transformative new works without the permission of the rightholders of the underlying copyrighted works?

Before my message gets misinterpreted, many rightholders recognize Fair Use (they do, after all, rely on it themselves in news operations, comedy etc.) and see the benefits of new content based on underlying copyrighted works. This is why I am not blaming big media. The problem is there’s a system that’s now in place that overcompensates YouTube’s alleged copyright indiscretions of year’s past. It’s much like how Kobe Bryant wanted to make up for his infidelities by overcompensating with a $4 million gift to his wife. Some feel that YouTube is now over-zealously siding with big media, regardless of common sense or article 107 of the law.

The Courts Have Always Seen, Recognized And Sided With Fair Use

While judges are often accused of “not getting innovation,” the reality is that the Courts do get it, repeatedly siding with Fair Use and even protecting the commercial applications thereof.  In 2008, U.S. District Judge Jeremy Fogel ruled that rightholders cannot order the deletion of an online file without determining whether that posting reflected fair use of the copyrighted material. The courts have, of course, sided with rightholders, too, but it’s been more in cases of copyright infringement of full works.

Big media, in fact, wrote the book on hustling and Hollywood was founded so early entertainers could evade a litigious environment. The original studio chiefs all headed out west to escape New Jersey-based Thomas Edison’s patents on film technology.

Takedowns, Claims, And Other WMDs

Last year YouTube revamped its takedown process. Before, a rightsholder could issue a takedown of a specific video. We, as the uploader of the video and wonder of the channel its on, could issue a counter. But if the rightsholder disagreed with our argument, they could simply reissue the takedown and the video in question would remain disabled.

YouTube ignored the four tests of Fair Use by automatically siding with the rightsholder, which didn’t seem reasonable, especially considering YouTube grew thanks to the four safe harbors of the DMCA. Today, however, if the rightsholder disagrees, they would have to seek a trial to resolve the matter; otherwise the clip goes back up.

There remain many problems with the takedown process and YouTube’s internal process to handle them, but I am not here to criticize YouTube given the sheer volume of claims, retractions and counter-claims they process.

Given the intense pressure big media and their lobbyists put on YouTube, I think the DMCA makes sense for user-submitted channels, but not for channels that house content housed by media companies who make reps and warranties. Pretending that big media shouldn’t have any reservations is naive, but applying the remedies they need when an individual user uploads full length content to channels like ours makes no sense.

Ultimately, the DMCA proved to be a nuclear warhead with ContentID emerging as the missile that delivered the carnage.

Platforms Are A Double Edged Sword

This begs the question: is YouTube worth the hassle? Whereas I used to blindly defend YouTube at all costs, I now realize I need to tread lightly with YouTube. (Side Note: If this webpage was governed by the DMCA and managed by ContentID, it could perhaps be claimed by AMC because I used the “tread lightly” tagline). I’m half-kidding, but this takes me to the next point. While the Takedown process became a weapon of mass destruction, the sporadic but seemingly random Claims can become a free-for-all with no logic or merit when you consider the examples I cited above.

To drive the point home further, here are real world examples of where Claims make no sense:

Record labels ask us to interview their artists and then send us footage (or basically tell us to find footage ourselves). When we publish those clips, which were coordinated by the labels themselves, they are sometimes either: A) Blocked worldwide or B) Claimed, either splitting the revenue a channel would generate or outright preventing you to make any money from the exclusive clip you created.

Can you imagine a label preventing Rolling Stone‘s Jann Wenner from selling ads because he interviewed an artist and featured an image that the label provided (in addition to the images his own cameraperson may have taken). That would never fly with anyone, but the DMCA/ContentID allows it. YouTube is quick to say “Hey, it’s the DMCA” which increasingly sounds like a copout to some.

When we issue counter-notifications, they’re randomly released or reinstated with no clear pattern.

I understand why YouTube’s legacy and pedigree makes it reluctant to stand up too much to the DMCA, but it makes YouTube a less-than-attractive platform to build your business. (I’ve always said that being a fly one someone’s ass is less than ideal).

Exposure To Lawsuits?

In fact, I wouldn’t be surprised if some over-zealous class action lawyer was studying ContentID and the DMCA and considered pursuing the middle parties that are making claims without legal precedent or merit. After all, a rightsholder’s claiming policies are subjective, whereas Fair Use is part of law. There is a precedent here, too. Lawsuits targeted Righthaven, who represented some newspapers but ultimately got hit back with lawsuits and was forced to shut down.

In other words, YouTube doesn’t have anything to worry about (“Hey, we’re abiding by the DMCA”).  The rightholders technically don’t either (“Hey, we’re allowed to defend our works” even if they overstep section 107 of the Copyright Act”), but where it may get dicey for them is if their Takedowns cause damages to the channels. The ones most vulnerable are the middlemen who use or abuse ContentID, especially if there exists something like documented proof that the company is giving incentives to its employees to over-claim.

Moreover, when you consider the four tests required to obtain an injunction (there are four in preliminary injunctions and only three in interlocutory ones, with the Urgency test not being applicable here), I am surprised no one has sought (and obtained) an injunction blocking these intermediaries from claiming content. I’m no lawyer, but I successfully defended against an injunction once so I studied them ad nauseum. It’s a matter of time.

So, What’s Next?

When it’s said and done, I hope in 2014 YouTube will realize that the Claims crapshoot has to stop for it to remain a viable platform worthy of commercializing. Otherwise, YouTube will be a mere promotional platform used to draw attention to some other channel, be it proprietary or not.

YouTube’s parent Google has a dual share structure, I only wish they applied the same to YouTube channels. That will make it a more friendly place for media companies to house their content and give an incentive to the channels to promote the rightholders’ franchises and releases. Big media does spend billions promoting its works, after all. So why would they not welcome it when done via editorial?

Once that happens, and the quality of the content rises, YouTube will be a healthier place for big media and marketers alike.

Ashkan Karbasfrooshan is the founder and CEO of WatchMojo, one of the largest video producers and distributors in the world and a top 25 YouTube channel. The company is privately-held, profitable and has never raised outside investment. Previously he was a VP at AskMen. He holds a degree in finance. He has been published on MediaPost, TechCrunch, Paidcontent, GigaOm and it the author of two books. Over the years, he has emerged as an expert on copyright law and Fair Use. In 2006, he successful defended against a motion for injunction. You can follow him on Twitter @ashkan.

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