UPDATED 14:54 EDT / SEPTEMBER 21 2015

NEWS

“Let’s Go Crazy” over YouTube Copyrights take-downs

YouTube, LLC and other online video sharing services have long used automated systems to detect and enforce copyright infringement, but last weeks 9th U.S. Circuit Court of Appeals ruling will change the way that automated copyright enforcement takes place. Last week the 9th Circuit ruled to require copyright holders to consider fair use prior to issuing a takedown notice for potentially offending content.

From the Lenz v Universal Music Corp et al, 9th U.S. Circuit Court of Appeals, Nos. 13-16106, 13-16107. ruling:

Copyright holders cannot shirk their duty to consider—in good faith and prior to sending a takedown notification— whether allegedly infringing material constitutes fair use, a use which the DMCA plainly contemplates as authorized by the law.”

The case centered around YouTube’s  Content ID match system.  Content ID works by having copyright holders upload their work, either audio or video, to a database. When a new video is uploaded to YouTube it’s automatically scanned for content in that database of files. If a video uploaded by a user contains copyrighted materials, YouTube allows the copyright holder to take a number of actions, such as tracking the video’s viewership statistics, monetizing the video by running ads against it, muting the audio that matches their music, and, if the copyright holder wishes, blocking the entire video from being viewed.

The problems with automated take-downs

YouTube’s Content ID system has long been criticized as being overly aggressive, mainly because (as the 9th Circuit just made clear) using someone else’s copyrighted material is not always infringement and an automated system is unable to discern between what is fair use and what is truly infringing. Larry Lessig, a Harvard Law Professor and Presidential candidate (who created Creative Commons), once sued YouTube and Liberation Music for ignoring fair use and relying on automated takedown systems.


While I don’t have Lessig’s expertise, I’ve also had some negative experiences with YouTube’s asinine automated takedowns. I was working with a nameless brand that had paid to use a song found in YouTube’s Content ID system in a commercial. However, YouTube pulled the commercial despite the fact that this brand had paid the fairly unknown musical artist named Katy Perry an undisclosed amount of money for the use of that song. It was a multiple week ordeal to get the commercial back online, despite the brand paying a license fee.

The above stories speak volumes to the problem with automated enforcement of copyright, but after last Monday we will likely start to see a notable change. Another part of the ruling makes it clear that anyone who has their video taken down unlawfully can sue for damages. While people like Lessig were hipster enough to sue for bad faith, before the 9th circuit said it was cool, the clarity in this ruling will act as a deterrent to more bad faith takedowns.

Are automated systems like Content ID bad?

With 300+ hours of video being uploaded to YouTube every minute, I fully understand a need for an automated system to look for infringement. I’ll even say that YouTube’s copyright controls are a big part of the appeal to content creators. The main problem with Content ID is the reliance copyright holders place on it. Computers are needed to review that number of videos, but robots cannot yet replace human judgment.

Although this ruling centers on video take-downs, it may also put an end to shady practices used by some copyright holders. Some rights holders will file claims against videos that qualified as fair use as a way to run ads against that content. While those copyright strikes are often dismissed, it takes time and that means that a YouTuber can miss out on revenue when a video is first uploaded. That’s a big problem since, across the entire website, the number one source of views on YouTube comes from subscribers. So losing the first few weeks of a video can well mean losing the majority of the earnings from that video.

The internet and free speech

The video behind the ruling was posted to YouTube in 2007 by Stephanie Lenz and shows a baby dancing to a clip of the song “Let’s Go Crazy”. The video was taken down due to the Copyrighted Prince song playing in the background. While the court found that Lenz did not have the evidence to prove that Universal Music Corp. “knowingly misrepresented” their takedown notice, Stephanie is still able to seek some nominal damages as the court ruled her rights were violated. This is a hopeful note that courts recognize the potential for bad faith copyright claims to silence free speech.

The nature of the copyright claim against the video, to me at least, shows how easily automated takedowns could make it to suppress free speech. While YouTube has no specific responsibility to uphold the first amendment right to free speech, this automated take down system could be easily manipulated to suppress citizen journalism. Imagine the Mayor of a large city confessing to “only using cocaine while drunk” to the tune of “Purple Rain” or police blaring “Wrecking Ball” at protests as a way of keeping videos off of YouTube. I’m also fairly sure that play Mylie Cyrus over loud speakers is the fastest way to turn a peaceful protest ugly.  

Only time will tell how copyright law, freedom of speech, and even freedom of the press will evolve with the internet, but at least for now people have been given some level of protection.

Photo by clasesdeperiodismo

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