The Prelator

Weblog of Patrick McKay

Posts Tagged ‘content ID’

Victory! YouTube Reforms Content ID Dispute Process

Posted by darklordofdebate on October 3, 2012

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.

Posted in Copyright, Law, Technology Law | Tagged: , , , , | Leave a Comment »

SOPA, Private Copyright Enforcement Systems, and Free Speech

Posted by darklordofdebate on January 19, 2012

Throughout the debate over the Stop Online Piracy Act (SOPA) and the Protect IP Act (PIPA), there has been one refrain commonly invoked by the pro-copyright, anti-internet crowd. “There is no first amendment right to infringe someone’s copyright.” Or “copyright and free speech do not conflict.” Leaving aside the obvious fact that the Supreme Court has repeatedly stated that there IS in fact a first amendment right to make unauthorized use of copyrighted material under the fair use doctrine, the idea that copyright and free speech do not conflict is demonstrably false.

At its heart, copyright law is a censorship mechanism. It is a way to grant one person or entity a monopoly on certain speech and deny all but those declared to be the “owners” of that speech the right to use it for their own expression. We believe this is justified because it provides financial incentives for speech, and indeed it seems reasonable that people should be entitled to benefit from their creative works. But we must always remember that, at its core, copyright is nothing less than the government dictating who may speak and who may not. Given this, there will ALWAYS be some degree of tension between copyright law and freedom of speech–between the Copyright Clause of the Constitution, and the First Amendment. To say that there is no conflict between copyright and free speech is simply wrong.

The conflict between copyright and free speech can be clearly seen when copyright laws are abused and used to censor speech that does not infringe anyone’s copyright. While the pro-copyright lobby may claim otherwise, the truth is such abuses are both common and widespread. In light of bills like SOPA and PIPA which propose dramatically expanding the powers of both the federal government and private copyright owners to enforce copyrights, it is important to keep in mind the ways in which copyright is abused under existing laws, and the potential for even greater abuses should these bills pass.

Now that outright DNS blocking and the horrible “private right of action” provisions have been removed from SOPA and PIPA, one of the most dangerous remaining provisions is the section granting “immunity” to search engines, payment processors, and ad-serving networks who “voluntarily” decide to cut-off services to websites which they decide “facilitate” copyright infringement. As many people have pointed out, this will most likely result in a process similar to the existing DMCA takedown process, whereby service providers who are notified by copyright claimants that a particular site “facilitates” copyright law will immediately move to cut-off service to that site for the sake of avoiding liability, regardless of whether that site actually violates copyright law in any way.

This is exactly how every content hosting service in existence, from Google to YouTube to Facebook to file hosting sites like Megaupload and Rapidshare (the ostensible targets of SOPA) currently respond to takedown notices under the DMCA. But the “voluntary” blacklists created by private companies under SOPA would have none of the safeguards included in the legally mandated DMCA takedown process, such as the opportunity for accused infringers to file counter-notices and get their content restored. Under SOPA, while companies are encouraged to cut-off service to sites which are accused of piracy, they have no corresponding obligation to restore service if the allegation turns out to be false. The result will be the establishment of private copyright enforcement regimes administered by corporations with no accountability, no safeguards against abuse, and no mechanism for appeal.

How do I know this? Because this is exactly what has happened on YouTube, which currently runs the largest private copyright enforcement regime in existence under the guise of its “Content ID” program. As a YouTube video creator who frequently employs fair use in order to make unauthorized use of copyrighted content in YouTube videos, and because of my work advocating for a fairer copyright enforcement system on YouTube through my website, FairUseTube.org, I have been in a position to see just how often such private copyright enforcement systems are abused.

Under YouTube’s Content ID system, every video that is uploaded is automatically scanned against a vast database of copyrighted works contributed by YouTube’s Content ID partners. If either the video or audio content matches the digital fingerprint of a sample in YouTube’s database, the system applies the copyright owner’s preselected policy to either block the video outright, allow it to remain up but track its view statistics, or “monetize the video” by taking a cut of the revenue from ads embedded in the video page. While on the surface this seems like a great way for YouTube to allow users to upload videos which use copyrighted content while allowing copyright owners to still make money from their otherwise unauthorized use, the system has two fatal flaws: (1) Content ID matches are notoriously inaccurate and wide-open to abuse, and (2) there is no effective way to appeal mistaken identifications or even blatantly false and fraudulent claims.

First, once an entity is accepted as a partner in YouTube’s Content ID program,YouTube apparently does not require copyright claimants to submit any proof that they own the copyright to works which they upload as reference files. There have been numerous reported cases of unscrupulous companies submitting works that are either in the public domain or are simply not owned by them into the Content ID database.  This allows them to claim ownership of, block, and/or receive ad revenue from, videos which they do not own any copyright interest in whatsoever. Even when there is a legitimate copyright involved, the Content ID system is often unable to tell a copyrighted work from a non-copyrighted one. This problem is especially severe with regard to recordings of classical music, where the music itself is in the public domain, but specific recordings may be subject to copyright. The Content ID system cannot tell one recording of the same classical song from another, and thus people who have legally used recordings of classical symphonies that were either in the public domain or that they have legally licensed from a third-party music library (and in some cases even performed themselves) have found their videos misidentified as containing a copyrighted recording owned by someone else.

Misidentification or even fraudulent copyright claims would not be so bad if there was a means to appeal such false-positives and punish users who abuse the system. But in fact there is not. While YouTube maintains a nominal mechanism for “disputing” false or mistaken Content ID matches, this dispute system is a joke. This is because the person who gets to decide whether to accept the user’s dispute is none other than the copyright claimant himself.

When a user files a dispute, the Content ID claimant is given three options: (1) release the claim, (2) have the video taken down via a formal DMCA claim, and (3) reinstate the Content ID claim. While the first option removes the false claim entirely and the second invokes the formal DMCA takedown process under the law (allowing the user to send a DMCA counter-notice and get their video restored that way), the third option reinstates the Content ID match, allowing the claimant to either block or receive all the ad revenue from a video, with no further opportunity for the uploader to appeal. Instead, the user is greeted merely with a message that the copyright owner has “confirmed their claim” to the content. If the user attempts to contact YouTube to further appeal a false claim, they are told that their only option at this point is to convince the claimant to retract their claim.

Through this process, YouTube gives copyright claimants the ability to essentially be the judge in their own cases–giving them sole discretion whether or not to accept a dispute against their copyright claim. As experience has shown, Content ID claimants almost universally choose to “reinstate” their claims (likely through an automated process or merely clicking “select all” in the list of disputes). As a result, the Content ID dispute process is next to useless, and those who attempt to dispute a mistaken identification or claim fair use, will most likely find their video re-blocked through Content ID in a matter of days after they file their dispute, with no further recourse or opportunity for appeal.

It is important to note at this point, that everything YouTube has done is perfectly legal under current law. Nothing today prevents companies from establishing their own private systems of copyright enforcement which go far beyond the process prescribed in the DMCA, and which contain none of its safeguards against abuse. In YouTube’s case, Content ID exists alongside the DMCA process, as the DMCA provides an alternate means by which videos can be removed for copyright infringement. But while YouTube originally intended Content ID to serve as a kind of front-end buffer to the DMCA process, allowing users to have recourse to the DMCA counter-notice process in the event a Content ID dispute was rejected, that option no longer exists. Instead, Content ID has almost completely supplanted the DMCA process as the primary means of copyright enforcement on YouTube, and users who have videos permanently blocked by Content ID have no recourse to DMCA counter-notices.

It is under this context that, when last month Universal Music used the Content ID system to have an original commercial by Megaupload taken down without having any legitimate copyright claim against it, Universal could plausibly claim in court that they could use YouTube’s private system to block the video without being subject to any of the penalties for fraudulent copyright claims under the DMCA. It is this system that has allowed unscrupulous companies like GoDigital to illegally hijack ad-revenue from hundreds of original videos using legally licensed royalty-free tracks from third-party music libraries. And it is this system that has allowed others to claim a monopoly on royalty-free music loops and samples provided with popular software such as iMovie and GarageBand, effectively preventing anyone else from using them in YouTube videos. All of these are documented cases of flagrant abuse, with dozens of complaints on YouTube’s help forums that the company has systematically ignored and failed to act upon. (To read more about these specific cases, click here.)

The reason for that is simple. The current law simply provides no incentive for companies like YouTube to protect their users against false and abusive copyright claims. YouTube would much rather placate major copyright holders like Viacom and Universal Music and avoid expensive lawsuits than stand up for users’ rights by forcing copyright claimants to prove a valid copyright interest in videos alleged to be infringing, or in the very least provide an effective means to appeal false copyright claims.

While Google was one of the most vocal parties involved in yesterday’s protest against SOPA, their own system which they have built on YouTube provides a clear example of exactly what we can expect if SOPA passes. When private service providers are deputized to become enforcers of copyright law with no incentive to defend individual users, they will invariably sacrifice the free speech rights of their users for the sake of avoiding expensive lawsuits. YouTube has shown us that nothing good can come of privatizing copyright enforcement, which only serves to harm freedom of speech online.

Imagine how much worse it would be, if instead of specific content being subject to such arbitrary blocking as YouTube currently employs, entire websites could be cut-off from all financial services and revenue sources by the mere accusations of big media companies. What would happen if, instead of individual YouTube videos getting blocked, YouTube itself was de-listed from search engines and denied its life’s blood in ad revenue, with no opportunity for appeal? That is what would happen under SOPA. Let us take warning from YouTube’s own practices, before YouTube itself finds itself in the cross-hairs.

Posted in Copyright, Law, Technology Law | Tagged: , , , , , , , , , , , , , , , , , , | Leave a Comment »

Falling Through the Cracks in YouTube’s Copyright System

Posted by darklordofdebate on August 23, 2011

Over the last few months, I have become increasingly aware of a fatal flaw in YouTube’s copyright enforcement regime, which frequently leaves non-infringing videos blocked for supposed copyright reasons with literally no recourse for the user and no way to dispute the copyright block.

YouTube’s copyright policies are confusing enough to begin with, as unlike most other video sharing sites, YouTube has not one but TWO overlapping copyright enforcement systems–it’s automated Content ID system, and the regular DMCA takedown regime that all content hosting sites are required to follow by the Digital Millennium Copyright Act.

Videos can be blocked/taken down by either system, and each system has its own process for filing a dispute.  If a video is subject to a DMCA takedown notice (which must meet standards established by law), it shows up in your account as “rejected for copyright infringement,” and there will also be a strike placed against your account, which will cause your account to be terminated upon the third strike. If your video makes fair use of the copyrighted content in question or the claim is false, you can file a DMCA counter-notification (also specified by law), and your video will be restored after a waiting period of approximately three weeks.

If a video is identified by YouTube’s automated, media fingerprinting “Content ID” system as containing content by a copyright owner enrolled in the Content ID program, several things can happen. The video can remain viewable, but “monetized,” meaning adds will show next to it; it can be blocked entirely (either worldwide or in selected countries), or in the case of audio-only matches, the sound can be muted. These videos show up on your “My Videos” page as having “matched third party content.” Because this is all done by computer and no form of DMCA takedown notice has been sent, videos blocked in this manner do not cause a strike to accrue against your account. If you want to dispute a Content ID block, there is an easy dispute form which you can fill out, which in most cases will cause the video to be automatically and immediately restored, though it does send a notice of your dispute to the copyright owner.

Here’s where things get tricky, since the copyright owner then has the opportunity to respond to your dispute. Often they will simply ignore it, and after a few months the “View Copyright Info” page for that video will display a message saying “dispute successful” and the content match will soon disappear entirely. On the other hand, what happens if the copyright owner still believes the material is infringing? According to YouTube, this is what is supposed to happen:

If you feel your video has been misidentified by the Content ID system, you can dispute the identification. This involves filling out a short form listing the reason for your dispute. We then notify the content owner whose reference material was matched. The content owner will then review the match. If the content owner disagrees with your dispute for any reason, they will have the option to submit a copyright takedown notice which will result in the disabling of your video and/or penalties against your account. To avoid penalization, only submit legitimate dispute claims.

In other words, if the copyright claimant does not accept your dispute, they have the option of escalating to a formal DMCA takedown notice, in which case YouTube’s other copyright enforcement system kicks in, the video would be taken down again, and a strike would be issued against your account. The user would then have the right to dispute a second time using a DMCA counter-notice, and have the video restored once again. According to the DMCA, this is where the process ends, since only if the copyright claimant notifies the service provider that they intent to file a lawsuit seeking an injunction against your video can the service provider leave it offline. Otherwise they are supposed to restore it after the waiting period established by law.

This is how the copyright dispute process on YouTube is supposed to work: Content ID match (video blocked) -> Content ID dispute (video restored) -> DMCA notice (video re-blocked) -> DMCA counter-notice ->(video restored unless notice of lawsuit given). This is not how it works practice however.

Sometime in the last couple years, YouTube has quietly started acting in a different way, contrary to their stated policy. Instead of requiring copyright owners to file a formal DMCA notice in response to a Content ID dispute, thus allowing users to invoke the DMCA counter-notice process, YouTube allows copyright owners to somehow “confirm” their copyright claim through the Convent ID system and re-impose whatever blocks were originally in place through Content ID. In this case, a message will appear on the user’s “View Copyright Info” page for that video saying, “All content owners have reviewed your video and confirmed their claims to some or all of its content.” After this, as far as I can tell, there is absolutely no way for the user to file a dispute and get their video restored.

I had been hearing reports about this happening for months. Because of my website, fairusetube.org and the video tutorials I have posted on YouTube regarding fair use and the Content ID dispute process, people have been posting comments and sending me messages about this for a while. But until last week, it had not actually happened to me (at least where the video was blocked in the U.S. where fair use applies). Then last week, I noticed one of my older anime music videos was blocked pretty much everywhere, including the U.S., by Content ID. I filed a dispute as I have many other times, and the video was unblocked for a few days, and then re-blocked with the message above. No further Content ID dispute was possible, because the record of my original dispute was still there. And when I tried filing a DMCA counter-notice (I tried twice, using both YouTube’s counter-notice webform and a counter-notice emailed to copyright@youtube.com), all I got was an automated response essentially telling me this is a Content ID issue not a DMCA issue. Other emails I have sent about this to YouTube’s copyright support address have gone unanswered.

So I’m stuck. My Content ID dispute was rejected, but in a manner other than a DMCA takedown notice, so I am not allowed to take advantage of the DMCA counter-notice process. It appears there truly is no recourse for this situation. My video is blocked, and there is simply no process to file a further dispute and get my video restored again. Contrary to both the takedown process established by law and YouTube’s own stated policy, the condition at the end of the process is that the user’s video remains blocked, rather than remaining up unless notice is given of pending legal action over the video.

This situation is frankly outrageous. It was bad enough when YouTube created the Content ID system in the first place, imposing automated blocks on videos with no regard for fair use. It is even worse now that this system apparently has no effective means of dispute, since whenever a copyright owner chooses to “confirm” their claim (as anecdotal evidence suggests they are doing with increasing frequency), there is nothing users can do to fight it. They are literally stuck in a gap between YouTube’s two competing copyright systems–a black hole which YouTube does not acknowledge even exists, and which, to my knowledge, no one else has ever addressed either. Something must be done about this, since until YouTube’s policy in this situation changes, many videos that are perfectly legal and non-infringing will continue to be unjustly blocked by Content ID with no recourse.

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How to Dispute YouTube Copyright Notices

Posted by darklordofdebate on March 12, 2010

How to Dispute YouTube Copyright Notices

This is a video I made yesterday describing how to dispute copyright claims on YouTube and have videos restored that are blocked by YouTube’s automated Content ID system.

This marks the official launch of my new website: FairUseTube.org which is dedicated to promoting awareness of fair use rights under copyright law on YouTube and similar user-generated content sites. Check it out!

Posted in Copyright, Law, Technology, Technology Law | Tagged: , , , , , , , , , | 1 Comment »