Fair Use. It’s the legal doctrine that lets you use copyrighted material without permission from the rights holder. Now, this doesn’t mean you can just go upload that new Justin Bieber album to YouTube without repercussions. There is a set of criteria that needs to be met in order to qualify for Fair Use, and this includes criticizing and parody. There are a growing number of YouTube content creators that have turned doing funny movie reviews, parody voice overs, and video game playthroughs into a business, making money from ad revenue on their videos.
Since there are thousands of videos a day added to YouTube, they needed something that was automated to help in keeping copyrighted material from being uploaded. Thus, in 2007, they started Content ID, an automated system that scans uploads and compares it to a database of copyrighted materials submitted to YouTube from the rights holders. The system can automatically flag material as infringing and allow for the rights holders to determine how they want to handle it. It allows the rights holders various actions from muting the audio to blocking a video from being viewed, and even claiming the ad revenue that would have gone to the channel owner.
The problem is that the way Content ID works, and with the rules that have been set up, it’s difficult for content creators to dispute infringement claims, and the system offers no repercussions for a false claim.
Issues started popping up right away, and not just for those trying to make a living at it. In 2007 a woman named Stephanie Lenz uploaded a 29 second video to YouTube of her child running around and dancing to Prince’s song “Let’s Go Crazy.” The Content ID system picked up the music in the background, and Universal Music Group, who owns the rights to the music, issued a takedown notice. Her video was removed from YouTube without a challenge from Stephanie. The Electronic Frontier Foundation got involved and helped Lenz sue Universal Music Group in order to get a declaration that her “Dancing Baby” video did not infringe on their copyright through Fair Use, and to cover the legal fees involved.
Even artists themselves aren’t immune to the negative effects of automated takedowns, as one Gavin “Miracle of Sound” Dunne found out. Gavin allows people to use his music in their own online videos, but one day, Gavin’s channel and many of these fan-made creations were hit with copyright claims. The irony was that the company issuing the claim works with Gavin’s own music distributor, and was claiming the copyright in Gavin’s name, without his knowledge. The company making the claim, INDMUSIC, took ad revenue in one stroke from Gavin’s channel and hundreds of other authorized users, while Gavin had to individually respond and try to refute the claims. Not only did it waste his time and money, but it damaged his reputation in the process, with no repercussions for INDMUSIC.
One user, Aram Pan, who bought music from a service called Digital Juice for use in his videos, was hit with a claim from a huge Korean pop music label, SM Entertainment. He refuted the claim and showed the proof that the music he bought was from the service. The label rejected the refute and a strike was issued against Aram, taking his video offline. After comparing the music he used with what SM claimed he was infringing, he realized that the music track used the audio from Digital Juice with some sound effects over it. It turned out that SM was the one infringing on the music Digital Juice owned, and had used the music in a way that doesn’t comply with Digital Juice’s terms.
This video by Doug Walker, AKA The Nostalgia Critic, summarizes the problem nicely and asks, “Where’s The Fair Use? #WTFU.” Doug and a few other YouTube personalities show what they have to go through in order to refute claims, and how hard it is to actually get a claim removed from their channel. One YouTuber, Alex from I Hate Everything, did a review of a movie, Cool Cat Saves the Kids (NSFW language in this video), showing how bad it was. The director of the movie spent the next month issuing claims against him to keep his video offline, effectively censoring his video about the film, which Alex actually recommends watching because it is so bad.
After all this, there may finally be a light at the end of the tunnel. A pinned post from Spencer, a member of the YouTube Policy Team, states that they have heard the feedback and it is “having an impact.” He claims that they are working on new policies to help “minimize mistakes” and “help strengthen our communication between creators and YouTube support.”
The “Dancing Baby” case had a recent update in which the ruling was adjusted to remove language that allowed for automated algorithms to provide a “valid and good” consideration for Fair Use, which means it is up to a human to make a determination of Fair Use before issuing a copyright claim.
It is completely understandable that companies want a way to help fight piracy. I get that you don’t want somebody uploading the latest Avengers movie or popular music to YouTube without having an easy way to take it down. But the Content ID system that has been implemented, and the rules and confusion surrounding it, puts the burden on the YouTube channel, not the accuser. It limits the channel creator’s ability to respond to takedown requests, yet there are no repercussions for the accusers who make false accusations. The system is designed in a way that is easily abused, and that is what we are seeing. Now, however, there is an acknowledgment of the problem by YouTube staff. Hopefully, with enough content creators and users making the case to change how things are done, YouTube will soon correct the issues that they have and make it easier for people to defend against false copyright claims.
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