The Prelator

Weblog of Patrick McKay

Posts Tagged ‘copyright reform’

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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Book Review: “Reclaiming Fair Use” by Patricia Aufderheide and Peter Jaszi

Posted by darklordofdebate on August 15, 2011

Earlier this summer, I made the winning video for Public Knowledge’s video contest to create a response to YouTube’s “Copyright School” video, which made only a token mention of the crucial exception in copyright law for “fair use” and portrayed fair use as being too complicated for ordinary YouTube users to understand. Public Knowledge challenged the online video community to create a video presenting a more balanced view of fair use, and my video, “Fair Use School: The Rest of the Copyright Story,” ended up winning that contest and even received a bit of news coverage, such as in this TechDirt article.

Soon after my video was announced the winner of Public Knowledge’s contest, I was contacted by Patricia Aufderheide of American University, who is also the director of the Center for Social Media. She graciously offered to send me a copy of the new book she recently coauthored with Peter Jaszi, called Reclaiming Fair Use. I have spent the last few days reading the book while on vacation in Washington state and British Columbia (my family thinks I’m crazy for reading about copyright law on vacation), and enjoyed it immensely.

Overall, I found this book to be an excellent resource on the current state of fair use law in the U.S., complete with succinct analysis of changing judicial views becoming friendlier to fair use, and valuable strategic insights for those involved in the copyright reform movement. The basic thesis of Reclaiming Fair Use is that, far from being a dead letter or uselessly vague concept, fair use today is alive and well; and the more people insist on exercising their rights under fair use, the better they can shape the practices which will ultimately come to define fair use for their communities.

The book starts out with a brief recapitulation of the many flaws of our current copyright system, which should be familiar to most people concerned with this subject. Copyright today lasts longer than ever, is broader than ever, and actually licensing copyrighted content for new uses is more difficult than ever. This has resulted in a significant chilling effect on the creation of new cultural works, as ignorance about fair use rights and fear of copyright lawsuits have kept many from creating as freely as they might otherwise have done.

The authors then give a detailed history of the fair use doctrine, from its origin in the 1800s, through its codification in 1976, up through the present day. Even though fair use went through a brief period of decline in which it was marginalized by a law-and-economics approach to considering whether a new use competed with the market for the original, judges have more recently recognized “transformativeness” as the key element of fair use analysis. If copyrighted content is put to a new use that adds new meaning, message, or purpose rather than merely superseding the original, courts today are much more likely to find fair use, even if the new use could conceivably compete with some market for licensing the original material.

While I found the history of the fair use doctrine and current judicial interpretation enlightening (I did not previously know that courts now consider transformativeness to be more important than economic impact), the part of the book I found most fascinating was its insights on the strategy of the broader copyright reform movement. The authors argue that copyright reform advocates were far too quick to concede that fair use is too vague and nebulous a concept to be of any real use to those wishing to put copyrighted content to new and transformative uses. Instead, scholars like Lawrence Lessig and others began advocating either for radical changes to the copyright system that are unlikely to ever happen, or for alternatives to traditional copyright such as Creative Commons.

Aufderheide and Jaszi argue that it was a mistake to concede so much ground to content owners, such that many copyright reformers had effectively given up on fair use. As Peter Jenkins once wrote in response to the quick dismissal of fair use by copyright reform advocates, “with friends like these, who needs enemies?” Rather than giving up on fair use and allowing it to atrophy, we should rather be aggressive in asserting our rights to make fair use of copyrighted content.

Fair use was deliberately designed to be a flexible concept, very much tied to contemporary practice and community norms. Aufderheide and Jaszi argue that it is up to fair users themselves—not their lawyers or their gatekeepers—to define for themselves what fair use means for their community. One of the best ways to do this is by developing “codes of best practices,” which set forth standards for what is believed and accepted to be fair use by a given community, be they documentary filmmakers or media studies teachers. The authors then go on to cite a number of encouraging examples of how these codes of best practices have helped empower several creative communities to throw off the shackles of unnecessary licensing and fear of copyright lawsuits and begin making fair use of copyrighted content in ways they previously considered impossible.

Personally, I found the authors’ insights into the strategy of the copyright reform very enlightening, and was encouraged by the work they have been doing promoting codes of best practices in fair use. I too have previously noted how easily many copyright reformists have given up on fair use as having any practical value. One of the most important things I learned through competing in policy debate in high school and college was the concept of “ground” in a debate, where the side that most aggressively seizes ground in the early stages of a debate and successfully holds onto it usually wins.

When viewed in this way, it was indeed a grave tactical error for the copyright reform community to concede fair use early on, as it has only made it much more difficult for us to retake that ground and begin restoring utility to the fair use doctrine. I was glad to read of the many successes the Center for Social Media has had promoting its codes of best practices in several key creative communities. I wholeheartedly agree with the authors that the best way to fight against overly restrictive copyright laws is by boldly asserting our rights under fair use whenever possible.

One thing I disagree with the book on, however, is that I don’t think codes of best practices will always necessarily be the best way to do this. While codes of best practices may work great in professional communities such as documentary filmmakers and media teachers, they are much less useful in creative communities that do not have any well-defined structure or representative organizations. This is particularly true in the amateur online video community. While I admire the Center for Social Media’s effort to create a Code of Best Practices for Fair Use in Online Video, I don’t see how it could ever reach enough people to have a meaningful impact. I run a website called fairusetube.org, in which I provide tutorials on fair use and guides for dealing with copyright issues on YouTube. I get messages from YouTube users facing copyright takedowns several times a week, and do my best to help them by giving general pointers about fair use and the YouTube copyright dispute process (without crossing the line into giving legal advice of course).

From my experience, most YouTube users know virtually nothing about fair use, and even when informed about their right to dispute copyright claims against their videos, they are too terrified of drawing the ire of copyright owners to risk filing a DMCA counter-notice. Add to this the fact that YouTube’s dual systems of copyright enforcement (both the automated Content ID system and the DMCA takedown process) are hopelessly confusing and leaves gaps in which videos can be blocked with truly no recourse, and copyright continues to be a huge obstacle to online video creators, regardless of the existence of a code of best practices (which most online video creators do not even know exists). Ultimately, as I argued in my forthcoming student note (to be published in the fall 2011 Regent Law Review), I think it will take clear legislative protections for noncommercial, transformative works and real penalties for abuse of the DMCA to solve this problem.

And while this criticism goes beyond the book itself, I also don’t think the Center for Social Media’s code goes far enough to cover the majority of what online video creators actually do. It strongly implies that any use of a complete piece of music in a video cannot be transformative, and therefore is unlikely to be fair use. Coming from my perspective as a vidder who has made several highly popular anime music videos, I would disagree with this. Even though my vids use complete copyrighted songs, I (like other AMV creators) deliberately craft my videos so that the music and video are inseparable parts of a new work of art, where both mutually reflect upon the other and add new meaning and message that would not be present with either the music or the video alone. If this isn’t transformative, I don’t know what is. The fact that these songs would be impossible for amateur creators to license any other way should only add to the case for fair use in these situations. Personally, I would love to see a more expansive code of best practices for online video that recognizes things like vidding—even where complete songs are involved—as fair use.

These minor criticisms aside, I found this book a highly informative and insightful read on the current state of fair use law, with lots of valuable suggestions on how to reclaim and expand fair use rights in the face of long and strong copyright restrictions. It is a must-read for anyone interested in issues of copyright reform, and I hope it will lead to more and more people standing up and exercising their rights under fair use as one concrete step we can all take to fight against overly burdensome copyright laws.

 

 

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