October 19, 2012

It's Time to Fix YouTube's Biased Copyright System!

To rather badly paraphrase the opening lines of Charles Dickens' A Christmas Carol...

"I vastly enjoy and appreciate YouTube. This must be distinctly understood, or nothing meaningful can come of the story I am going to relate ..."

I've written a lot about YouTube issues. Looking back just at my relatively recent blog entries, it appears that YouTube has had quite a starring role:

Turkey vs. YouTube (3 October 2012)

How to Destroy YouTube (23 September 2012)

Saving YouTube from the Choking Web of Rights (8 September 2012)

Mars vs. Copyright vs. YouTube (8 August 2012)

A perusal of those essays, and my various earlier missives on the topic, will reveal that I am extremely sympathetic to the dilemma that Google faces in operating YouTube, both legally and logistically, and I certainly recognize their moves to make incremental improvements to the Content ID and Copyright Strike notification and associated counter-notification mechanisms.

And I certainly understand that the utterly, totally, pervasively and perversely screwed up state of copyright law, both in the U.S. and globally, makes dealing with this entire area like walking a tightrope over the mouth of a very active volcano. And I know that Google has an extremely capable and skilled legal team that does their best to do the right thing in any given case. They're really good people.

Having said all that, it's also true that complaints and concerns about YouTube copyright-related actions figure prominently in my inbox, from folks who have found my previous writings and hope (usually to their ultimate disappointment) that I can somehow help untangle their situations.

As you might guess, there are some specific recent events that have caused me to, uh, boil over on this today -- but we'll get back to those shortly.

Let's cut to the chase. YouTube's current copyright enforcement regime has become a horrendously biased nightmare.

There is a vast bias in favor of any entity who makes a YouTube copyright claim, whether it triggers a Content ID match (relatively innocuous) or a Copyright Strike (potentially devastating) on users' uploaded materials.

As YouTube has vastly expanded the scope of their video matching and analyzing system and an ever larger number of "partners" have joined the system, this bias has created a tightening net that is increasingly snagging "innocent infringement" or totally non-infringing materials (see my links above for some examples of how this occurs).

Perhaps worse, any material can be targeted at any time, even months or years after being uploaded. Copyright claims often come from entities that practically nobody has ever heard of, sometimes involving clips that at one time had fallen into the public domain -- or at least were widely reported as having done so.

There is little practical recourse for most users. The claim comes in, the user can counter-claim that the original claim is invalid, the original claimant confirms the original claim ... and the user loses. There's usually nowhere else to go, unless you're ready to hire a lawyer yourself and spend a bundle.

It's essentially a "guilty until proven innocent" system -- and for most people it's literally impossible to prove their innocence with available resources.

This is a situation that not only encourages what we might call copyright bullies, but also an expansive view of copyright claims that can easily push beyond the bounds of legitimacy. After all, there appear to be few if any meaningful penalties for claims that are successfully rejected, and since most accused users can't afford to fight back, it's like a football game where only one team is ever allowed to actually possess the ball. It's ripe for massive abuse by copyright claimants.

And the YouTube copyright penalty structure is decidedly inflexible and we could even say regressive in nature.

Content ID hits can result in someone else's ads displaying with the video, or the video might be blocked in some countries, or blocked globally. And this can all change at any time. At any moment, the status could change again, totally at the whim of the claimant.

Copyright Strikes are much worse. Three of those can kill your YouTube account without recourse, including all your videos, your associated community of users and comments, and all the rest.

I should also add at this point that this is all irrespective of how long videos have been present on YouTube, whether or not the user has tried to monetize them with ads, how many views they've ever obtained -- or pretty much anything else.

I have a large collection of historical videos related to computers and other technology topics. It is my pleasure to share some of them with the community for educational outreach purposes. I do not monetize my YouTube videos -- I don't run ads with or on any of them.

Before I put materials online that I have not produced entirely myself, I practice "due diligence" to try ascertain that they were either always public domain, fell out of copyright, or are eligible for statutory copyright exemptions.

This is almost never easy. There is no central database that can be referenced for such determinations, and the provenance of such items can be complex, especially for older clips.

But you do your best, because many of these items are otherwise lost to time if nobody can see them.

Since I started on YouTube five or so years ago, I've gotten occasional Content ID hits. Mostly these seemed to be the result of claimants including the same public domain clips in their productions that I used, and then firing off a complaint because my public domain clip matched the segment of their production that used the same clip.

Sometimes there are shady claims from various music publishing companies, claiming rights to classical works that are definitely public domain performances.

In dealing with these cases, I've sometimes just said "to hell with it" and deleted the videos, and in some instances filed counter-claims, with varying degrees of success.

But I'm not a lawyer, my resources are very limited -- like I said, I don't even try to make any money from this stuff -- and it's not worth the time and hassle for me to pursue most of these. I'm in the same boat as pretty much everyone else.

Now things have gotten worse. Right now I'm looking at two new Content ID hits and a Copyright Strike.

The CID hits are for a 2.5 minute and 1.25 minute pair of clips, one uploaded approaching two years ago, and the other uploaded almost three years ago. One of those creepy music publishing entities is after one of them, dating back to the 50s and in many public domain collections. The Copyright Strike is also from 50s material, was uploaded over a year ago, and was represented to me multiple times as being free of current copyright restrictions in this context.

And because something like this happened to me just a few days under six months ago (Copyright Strikes can expire after six months in the absence of additional strikes), I now have two Strikes on my account, and am threatened with total deletion of my account if a third should appear for any reason.

Remember, since as a practical matter it's virtually impossible for average users (that definitely includes me!) to fight back against such claims effectively, it instantly becomes very much a Sword of Damocles scenario. The basket ready to collect the bloody heads is apparently already in position.

It is certainly possible to argue the copyright status of any given video. And copyright abuse is a real problem, in need of practical -- but also fair -- solutions.

Yet the current YouTube copyright structure is not only enormously biased toward assumed guilt without truly meaningful recourse for most accused parties, but implements what amounts to a "one size fits all" penalty regime that in significant ways is like the now widely discredited three-strikes sentencing laws, that have filled our prisons with non-violent inmates whose most recent infraction was shoplifting a candy bar.

YouTube's bias toward claimants; the lack of practical means for ordinary users to fight back realistically against false claims; the tightening of automatic detection systems with an attendant increase in false positives; the lack of meaningful appeal and escalation mechanisms; and the failure to incorporate a sufficient range of signals, extenuating circumstances, and associated proportionality into penalties, are rapidly turning YouTube into a very unfriendly place for anyone but the media elite.

I am sorely tempted to simply delete my videos and close my YouTube account myself, say "Thanks, but no thanks YouTube" -- and stop sharing. Period.

I'm frankly weary of explaining to people that not only don't I have the power to help them with their YouTube conflicts, but that I don't even have useful suggestions of how they can proceed that are likely to do anything but waste their time and money.

But even while stipulating the legal minefields that exist in this area, I am totally convinced that Google is capable of vastly improving this currently rapidly deteriorating situation, if they choose to apply sufficient resources to the admittedly complex problems and issues involved.

So, I'm not clicking Delete. At least not right now, not this hour, not tonight.

We'll see how I feel on the morrow.

And we'll see if Google steps up to the plate for the benefit of the entire YouTube user community.

Take care, all.


Posted by Lauren at October 19, 2012 08:03 PM | Permalink
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