Note: I am posting this on my personal blog since my website, FairUseTube.org, is currently down due to increased traffic and MochaHost’s crappy service. I will post this there too once my site is restored. ~Patrick McKay
Just over one year ago, I began a campaign on my website, FairUseTube.org calling for much needed reforms to YouTube’s process for disputing copyright claims made by its automated Content ID copyright filtering system. Even though it was possible to dispute copyright claims on your videos, the dispute went right back to the party claiming copyright over your video, who then had the choice to either release their claim or simply reinstate it, in which case the uploader had no further recourse. This of course led to entirely predictable massive abuse by unscrupulous parties falsely claiming copyright (and profiting from the ad revenue) on everything from birdsongs to the NASA Mars rover and President Obama’s attempts at karaoke.
Over the past year I have highlighted these kinds of abuses on my website and have been quoted in several media articles on the subject by outlets such as Wired and TorrentFreak. As media awareness of the issue grew, the pressure has steadily increased for YouTube to do something to reform its woefully one-sided copyright dispute process. Today it appears that YouTube has at last bowed to that pressure and enacted at least one major reform that I and other critics have been calling for.
In a blog post this afternoon, YouTube announced a new appeals process for Content ID disputes, which should put an end to copyright claimants acting as judges of their own claims and once again giving users whose videos are blocked or monetized by false Content ID matches recourse to the counter-notice process under the DMCA. The new appeals process is described in greater detail here. As I said in a quote on Ars Technica, at this point I am cautiously optimistic about this new appeals process. If implemented correctly, it will be a huge step forward toward protecting the rights of online video creators against overzealous copyright claims.
However, it should be noted that YouTube’s “improved” appeals process really does little more than restore the Content ID dispute process to the way it used to work when the Content ID system was first created, and the way YouTube claimed as late as April of 2010 that it still worked. That is, when a user disputes a Content ID claim, the copyright claimant must then file a formal DMCA takedown notice (with its attendant legal penalties for misuse) if they insist on taking the video down. However, sometime after YouTube made that blog post, things changed, and YouTube now finally acknowledges that, “Prior to today, if a content owner rejected that dispute, the user was left with no recourse for certain types of Content ID claims (e.g., monetize claims).“
While I do not know exactly when things changed, I first experienced this myself in August of 2011 and received emails from others who experienced it quite a few months before that, possibly as early as mid-2010. So while I am glad YouTube is now admitting the problem and taking steps to correct it, it is still disappointing that it took them possibly several years (depending on exactly how long this has been going on) to realize it might be a problem to let copyright claimants judge disputes against their own claims.
Moreover, it remains to be seen exactly how accessible this new appeals process really is to the average YouTube user whose videos are flagged for copyright infringement. While the original dispute process (pre-2010) used to go Content ID claim > dispute > DMCA process, it appears this new system goes more like Content ID claim > dispute > reinstated claim > appeal > DMCA process. While this is an improvement over the current Content ID claim > dispute > reinstated claim > no recourse, it still adds yet another layer of complexity to what is already the most convoluted copyright dispute process of any major user-generated content site on the net.
In my own experience, the average user is already bewildered by the current system. Adding an extra layer to the dispute process will only confuse people more. Why not simply have it the way the dispute process originally worked, where any time a user disputed a Content ID claim the claimant had to make the choice right then between dropping the claim entirely or filing a DMCA notice? Since the copyright claimant will ultimately have to make that choice anyway, why wait until after the copyright claimant has reinstated their claim as before, and then the user has been forced to file another dispute in the new appeals process before finally invoking the DMCA process?
It also remains to be seen exactly what videos will be eligible for the new appeals process. The YouTube help page states:
Uploaders in good copyright standing may be able to appeal up to three disputed Content ID matches that were reviewed and rejected at a time.
Additional eligibility restrictions may apply, including the date of dispute and other factors. Uploaders will also be asked to verify their account if they have not already done so. The eligibility for the appeals process may change over time.
It will be interesting to see exactly what kind of “eligibility restrictions” YouTube imposes on this. It is quite possible that if you have an old Content ID claim on your video that you disputed and it was reinstated, you still might not be able to take advantage of the new appeals process. The reference to users “in good copyright standing” likely means you will be unable to appeal reinstated copyright claims if you have any outstanding DMCA strikes on your account, just as you are unable to upload videos with creative commons licenses, post unlisted videos, or upload videos longer than 15 minutes. I’m also not sure what this “three at a time” language means. Does this mean you can only appeal three reinstated Content ID claims ever, in a year, in a week, in a day, what?
As far as I can tell, the new appeals process hasn’t actually been implemented yet, and it will probably be gradually rolled out over the next few weeks. When it does, I will certainly try it out myself and write a tutorial on it for my existing Guide to YouTube Removals. In the meantime, I’d say online video creators have potentially won an important victory today in the fight to protect our rights against overbearing copyright claims by automated filters, and I look forward to seeing how this plays out in the coming weeks.