How YouTube Can Fix Itself

[Shamus Young]

How YouTube Can Fix Itself

Lack of fair use is just a symptom of the larger problem that Content ID is an unfair, confusing, stressful mess. Here's how YouTube could fix it.

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[Albino Boo]

1. Escrow advertising income during disputes.

Right now, if Rando Media company claims they own my video, they immediately begin getting 100% of the advertising revenue from it. If it takes us two weeks to settle it (and they have no incentive to resolve it quickly) then they get all of the revenue for those two weeks. And since most videos drop off in popularity quickly, it means they get nearly all of it.

The solution is simple, obvious, and people have been begging YouTube to enact it for years. All they need to do is take the disputed revenue and set it aside, to be awarded to whoever wins the dispute. This will fix the most appalling problem with the system, which is that right now YouTube is paying people to abuse it.

Putting the money into escrow would only be possible legally if the lawyer writes an opinion on the validity of any claim. The whole point of the current system is that they dont have to pay a lawyer.

2. More transparency and clarity when flagging content.

Many media companies hire outside firms to act as their IP guard dogs. So when I get a message saying that I've infringed on content from "Rando Media LTD", I don't have a clear indication of who they are, who they represent, or what they claim they own. Maybe Rando is a legitimate firm representing Disney, and I should take them seriously. Or maybe Rando is two teenagers sharing an apartment in Shanghai. If it's Disney and my video features (say) a Marvel game, then I need to defend on the grounds of fair use. If it's just a couple of trolls, then I need to respond that their claim is fraudulent.

If the company claiming copyright went to court you would not receive any additional information. Its up to you as the defendant to present evidence that that plaintiff is not the owner of the copyright. If youtube were to ask for additional information, they take on the risk that that Youtube, by asking for additional information to what the court asks for, is behaving in unfair and unreasonable way in an attempt to deny copyright infringements.

3. Scammers shouldn't be able to fingerprint public-domain works.

Maybe you thought you could avoid this nightmare? You'll just make videos of you talking into a camera, and you'll use public domain works as bumper music. Nobody owns the copyright on Mozart, right?

Except, some people start fake media companies and submit public domain works like this because - once again - YouTube is willing to pay people who do it and unwilling to punish them when they're caught. Heck, if Google would just round up obvious stuff like Bach and Mozart and make it impossible for people to claim to own the copyrights, it would help a lot. (An extra wrinkle here is that you can't copyright Mozart but you can copyright a particular performance. That's thorny and messy, but shouldn't we default to leniency in these cases? Protecting Mozart for all of humanity to be able to play and share for free is far more important than protecting a single performance of the work.)

Again the only way that would be possible would to have lawyer to right a legal opinion on each claim as to whether or not something is in public domain.

4. Charge companies a "finder's fee".

Like I said last week, YouTube is obligated to take videos down when a copyright holder makes a claim, but YouTube is not obligated to find those videos and tell the companies about them. Right now IP owners can decide how much of a segment you can use, what percent of your total video it's allowed to be, and how the system should respond when you do. Right now they usually just set everything to be maximally restrictive and walk away, because that makes for lots of money (for them) for no hassle (also for them) and they don't care what a scary hassle it is for you.

Given that fingerprinting and scanning probably creates a huge processing load on Google's servers, it would be totally reasonable for YouTube to pass that cost onto the people who use it. YouTube could say to the company, "We have infringing case X, which we will process if you pay the finder's fee. Even if they just charge one dollar per flagged video, that would give the media company some reason to not set Content ID to "maximum paranoia". Companies would then have a motivation to set the Content ID to only match stuff they care about. Maybe some of them will dial back the Content ID sensitivity to only flag stuff they're willing to fight over, which would basically restore fair use, eliminate fraudulent claims, and make YouTube a little money on the side.

The legal onus is on Youtube to demonstrate that its taking fair and reasonable steps to abide by copyright law. As general principle you can't charge for the cost of compliance with the law. If you could the IRS would be receiving bills for filling in tax returns. As a further point by charging, Youtube would also be behaving in an unfair and unreasonable way charging for making copyright claims


Wrapping up

The system is like its is for reason. It's designed by lawyers to be the way that Youtube avoids liability, without having to pay for a legal opinion on each and every claim.

 

[CaitSeith]

snip

What are your sources on all that?

 

[Albino Boo]

snip

What are your sources on all that?

Its called dealing with IP for a living for the last 15 years.

 

[nomotog_v1legacy]

snip

What are your sources on all that?

Its called dealing with IP for a living for the last 15 years.

Do you really need legal opinion on all of that? Why doesn't the current system need a legal opinion when someone clams a video?

 

[CaitSeith]

snip

What are your sources on all that?

Its called dealing with IP for a living for the last 15 years.

As a lawyer?

 

[Albino Boo]

Do you really need legal opinion on all of that? Why doesn't the current system need a legal opinion when someone clams a video?

Yes. Currently Youtube does not dispute the claim of copyright and pays the money. If Youtube does not accept the claim and puts the money in escrow it takes legal liability for disputing the claim. The only way to protect Youtube from subsequent lawsuits is for a lawyer to look over each claim and right an opinion on each case. If the decision was made by someone without legal standing, you lose the game right there because you will not have behaved in fair and reasonable manner. Then the big boys pile in with battalions of lawyers making huge claims and probably some class action suits on top.

snip

What are your sources on all that?

Its called dealing with IP for a living for the last 15 years.

As a lawyer?

Not as lawyer but of the two people in this conversation I strongly suspect I'm the only one that has spent 6 hours in meeting with 2000 dollar hour lawyers representing 2 governments and 1 major international corporation arguing over IP. Its part of my job to know how the law regarding IPs work, if they have to get the lawyers in because of a wrong decision I have made, then I would have been fired.

 

[nomotog_v1legacy]

Do you really need legal opinion on all of that? Why doesn't the current system need a legal opinion when someone clams a video?

Yes. Currently Youtube does not dispute the claim of copyright and pays the money. If Youtube does not accept the claim and puts the money in escrow it takes legal liability for disputing the claim. The only way to protect Youtube from subsequent lawsuits is for a lawyer to look over each claim and right an opinion on each case. If the decision was made by someone without legal standing, you lose the game right there because you will not have behaved in fair and reasonable manner. Then the big boys pile in with battalions of lawyers making huge claims and probably some class action suits on top.

snip

What are your sources on all that?

Its called dealing with IP for a living for the last 15 years.

As a lawyer?

Not as lawyer but of the two people in this conversation I strongly suspect I'm the only one that has spent 6 hours in meeting with 2000 dollar hour lawyers representing 2 governments and 1 major international corporation arguing over IP. Its part of my job to know how the law regarding IPs work, if they have to get the lawyers in because of a wrong decision I have made, then I would have been fired.

Is the claim made by content ID a legal opinion and would that matter?

 

[Albino Boo]

Is the claim made by content ID a legal opinion and would that matter?

The legal onus is on Youtube to show that it isnt storing and showing copyrighted IP without the owner's permission. They have to demonstrate that Youtube is attempting to take down any copyrighted IP as soon as its brought to their attention. It's not about individual cases but showing a consistent process to obey the law. The law recognises that the system cannot be 100% perfect and get all copyrighted IPs all the time. What the content ID system does is stop the big TV, film, games and music companies from piling in with big multi billion lawsuits because you have process in place which demonstrates that you behave in fair and reasonable manner.

The only way to make that system economic is accept any claim. The only way to not accept every claim, is to show that the legality of each claim has been considered by someone with appropriate qualifications. Each claim could be still be contested in court but because of the legally watertight process you can't get accused of systematic abuses of copyright and huge law suits from the big IP owners or even have the FBI come knocking.

 

[ffronw]

The legal onus is on Youtube to show that it isnt storing and showing copyrighted IP without the owner's permission. They have to demonstrate that Youtube is attempting to take down any copyrighted IP as soon as its brought to their attention. It's not about individual cases but showing a consistent process to obey the law. The law recognises that the system cannot be 100% perfect and get all copyrighted IPs all the time. What the content ID system does is stop the big TV, film, games and music companies from piling in with big multi billion lawsuits because you have process in place which demonstrates that you behave in fair and reasonable manner.

The only way to make that system economic is accept any claim. The only way to not accept every claim, is to show that the legality of each claim has been considered by someone with appropriate qualifications. Each claim could be still be contested in court but because of the legally watertight process you can't get accused of systematic abuses of copyright and huge law suits from the big IP owners or even have the FBI come knocking.

This is the part most people don't seem to understand. It isn't that YouTube has made the decision to remove these videos. It's that the DMCA's safe harbor provision only applies if the hosting party shows that it is responsive to copyright claims, and that means removing (or reassigning revenue) from infringing works upon notification. As Albino Boo says, if they were to review each claim on a case by case basis, it substantially shifts the liability, and would be enormously expensive for YouTube.

Sure, you can dispute the claim, but that doesn't mean that YouTube is just going to pause their processes. Sure, it sucks, and it's overly onerous on small creators. The best way to change it is not to protest YouTube, but to contact your elected legislators and ask them to bring the DMCA in line with current technology.

 

[K12]

snip

What are your sources on all that?

Its called dealing with IP for a living for the last 15 years.

...That's not a source. I'm perfectly willing to believe that you know what you're talking about but this is the internet where everybody who gets into an argument is a highly trained military sniper who totally lives like three blocks away so you'd better back off.

Does the law seriously say that no legal opinion is needed to claim ownership of video but one would be needed to claim the ownership back? Guilty until proven innocent as enshrined in the law?

From what you've said it seems like the law makes it impossible for youtube to not be fucking terrible. Would it be possible for some to deliberately and fraudulently claim every video on youtube and make shitloads of money... because I've got student debts to pay.

It seems like fixing this would require Youtube content creators to unionise or maybe for someone to abuse this system to such a colossal degree that youtube's hand gets forced.

 

[ffronw]

...That's not a source. I'm perfectly willing to believe that you know what you're talking about but this is the internet where everybody who gets into an argument is a highly trained military sniper who totally lives like three blocks away so you'd better back off.

Does the law seriously say that no legal opinion is needed to claim ownership of video but one would be needed to claim the ownership back? Guilty until proven innocent as enshrined in the law?

From what you've said it seems like the law makes it impossible for youtube to not be fucking terrible. Would it be possible for some to deliberately and fraudulently claim every video on youtube and make shitloads of money... because I've got student debts to pay.

It seems like fixing this would require Youtube content creators to unionise or maybe for someone to abuse this system to such a colossal degree that youtube's hand gets forced.

You can read the law itself on takedowns and put-backs here: http://digital-law-online.info/lpdi1.0/treatise34.html, which says in part (bolding for emphasis is mine),

Once a service provider wanting to avail itself of the safe harbors of 512(b) (system caching), 512(c) (information residing on systems or networks at the direction of users), or 512(d) (information location tools) knows that its system has infringing material, that service provider must expeditiously remove or block access to the allegedly-infringing material. That knowledge can come from a proper notice from the copyright owner, or when the service provider is aware of facts or circumstances from which infringing activity is apparent. It is not necessary for a service provider to police its users, or guess that something may be an infringement.

Sometimes, a notice from a copyright owner falls short of the requirements for a proper notice. That notice does not give the service provider either actual knowledge of the infringement or awareness of facts or circumstances that suggest infringement.
A notification from a copyright owner or from a person authorized to act on behalf of the copyright owner that fails to comply substantially with the provisions of subparagraph (A) shall not be considered under paragraph (1)(A) in determining whether a service provider has actual knowledge or is aware of facts or circumstances from which infringing activity is apparent. {FN89: 17 U.S.C. ?512(c)(3)(B)(i)}

If that were not the rule, then it could be argued that any notification, no matter how insubstantial, would provide knowledge to the service provider of the alleged infringement and require takedown to remain in the safe harbor, thereby gutting the notice requirements. However, a service provider cannot just ignore a faulty notice.

In a case in which the notification that is provided to the service provider?s designated agent fails to comply substantially with all the provisions of subparagraph (A) but substantially complies with clauses (ii), (iii), and (iv) of subparagraph (A), clause (i) of this subparagraph applies only if the service provider promptly attempts to contact the person making the notification or takes other reasonable steps to assist in the receipt of notification that substantially complies with all the provisions of subparagraph (A). {FN90: 17 U.S.C. ?512(c)(3)(B)(ii)}

There's also the EFF's page on DMCA, found here: https://www.eff.org/issues/dmca

It says, in part,

The DMCA ?safe harbors? protect service providers from monetary liability based on the allegedly infringing activities of third parties. To receive these protections service providers must comply with the conditions set forth in Section 512 including ?notice and takedown? procedures that give copyright holders a quick and easy way to disable access to allegedly infringing content. Section 512 also contains provisions allowing users to challenge improper takedowns. Without these protections the risk of potential copyright liability would prevent many online intermediaries from providing services such as hosting and transmitting user-generated content. Thus the safe harbors, while imperfect, have been essential to the growth of the Internet as an engine for innovation and free expression.

 

[Xeorm]

The legal onus is on Youtube to show that it isnt storing and showing copyrighted IP without the owner's permission. They have to demonstrate that Youtube is attempting to take down any copyrighted IP as soon as its brought to their attention. It's not about individual cases but showing a consistent process to obey the law. The law recognises that the system cannot be 100% perfect and get all copyrighted IPs all the time. What the content ID system does is stop the big TV, film, games and music companies from piling in with big multi billion lawsuits because you have process in place which demonstrates that you behave in fair and reasonable manner.

The only way to make that system economic is accept any claim. The only way to not accept every claim, is to show that the legality of each claim has been considered by someone with appropriate qualifications. Each claim could be still be contested in court but because of the legally watertight process you can't get accused of systematic abuses of copyright and huge law suits from the big IP owners or even have the FBI come knocking.

Would there really be that much protest against an escrow system? It's still, functionally, the same system for any legitimate owner of the copyright claim, but would be a massive boon for youtube in fighting against fraudulent claims. Especially as I've heard some other media owners getting annoyed with the zealousness of youtube's claims system that don't want the bad press from "stealing" people's ad income.

The whole claim system that youtube has set up currently is an ad-hoc thing anyway so that no one has to deal with lawyers. Don't see the real downside to an escrow system if it keeps things running smoothly.

 

[Bad Jim]

Shamus, the replacement for Youtube isn't crowdfunding. If you use Patreon or something like that, you still need to host your content, and you might as well put it on Youtube if you've already got your money. Then Google has no incentive to fix it. Jim Sterling has his stuff on Youtube, for instance. In fact you are probably better off with your stuff on Youtube, because people will discover you via links and fund you.

Of course, the other reason people still put stuff on Youtube is that most channels ain't worth spit. Having your revenue stolen isn't worth caring about if you weren't getting much anyway.

 

[Albino Boo]

Would there really be that much protest against an escrow system? It's still, functionally, the same system for any legitimate owner of the copyright claim, but would be a massive boon for youtube in fighting against fraudulent claims. Especially as I've heard some other media owners getting annoyed with the zealousness of youtube's claims system that don't want the bad press from "stealing" people's ad income.

The whole claim system that youtube has set up currently is an ad-hoc thing anyway so that no one has to deal with lawyers. Don't see the real downside to an escrow system if it keeps things running smoothly.

You have to two choices to accept the claim of copyright or not. If you dont pay the money to the claimant then you are not accepting the claim not matter what you do with the disputed payment. If you decide not to pay then you have demonstrate that you have legal grounds to do so and that means lawyering up.

The claim system that youtube has set up currently is not an ad-hoc system but designed by lawyers to shield Youtube from liability without having each claim examined by a lawyer.

 

[K12]

You can read the law itself on takedowns and put-backs here: http://digital-law-online.info/lpdi1.0/treatise34.html, which says in part (bolding for emphasis is mine),

Once a service provider wanting to avail itself of the safe harbors of 512(b) (system caching), 512(c) (information residing on systems or networks at the direction of users), or 512(d) (information location tools) knows that its system has infringing material, that service provider must expeditiously remove or block access to the allegedly-infringing material. That knowledge can come from a proper notice from the copyright owner, or when the service provider is aware of facts or circumstances from which infringing activity is apparent. It is not necessary for a service provider to police its users, or guess that something may be an infringement.

Sometimes, a notice from a copyright owner falls short of the requirements for a proper notice. That notice does not give the service provider either actual knowledge of the infringement or awareness of facts or circumstances that suggest infringement.
A notification from a copyright owner or from a person authorized to act on behalf of the copyright owner that fails to comply substantially with the provisions of subparagraph (A) shall not be considered under paragraph (1)(A) in determining whether a service provider has actual knowledge or is aware of facts or circumstances from which infringing activity is apparent. {FN89: 17 U.S.C. ?512(c)(3)(B)(i)}

If that were not the rule, then it could be argued that any notification, no matter how insubstantial, would provide knowledge to the service provider of the alleged infringement and require takedown to remain in the safe harbor, thereby gutting the notice requirements. However, a service provider cannot just ignore a faulty notice.

In a case in which the notification that is provided to the service provider?s designated agent fails to comply substantially with all the provisions of subparagraph (A) but substantially complies with clauses (ii), (iii), and (iv) of subparagraph (A), clause (i) of this subparagraph applies only if the service provider promptly attempts to contact the person making the notification or takes other reasonable steps to assist in the receipt of notification that substantially complies with all the provisions of subparagraph (A). {FN90: 17 U.S.C. ?512(c)(3)(B)(ii)}

Thanks for posting this.

The second paragraph seems to give Youtube the room to not make automatic takedowns or content IDs of videos when those notifications are done by an automated system because an automated system wouldn't (and clearly doesn't) adequately account for things like fair use.

Giving youtubers the warning and requiring a response or elective removal of the automatically flagged video within 48 hours (or whatever) seems like it would be within this law. If the copyright claimant elevates the claim from there then it could be removed. It adds an extra buffer of protection so their videos only get removed when the copyright claimant actually thinks they can defend the removal rather.

 

[K12]

Shamus, the replacement for Youtube isn't crowdfunding. If you use Patreon or something like that, you still need to host your content, and you might as well put it on Youtube if you've already got your money. Then Google has no incentive to fix it. Jim Sterling has his stuff on Youtube, for instance. In fact you are probably better off with your stuff on Youtube, because people will discover you via links and fund you.

Of course, the other reason people still put stuff on Youtube is that most channels ain't worth spit. Having your revenue stolen isn't worth caring about if you weren't getting much anyway.

This article is more about content ID than takedowns and crowdfunding would be viable alternative there. Youtubers could have a regular income on Patreon and wouldn't need to rely on ad revenue that can be arbitrarily stolen from them with no chance of getting it back no matter how obviously in the right they are.

You'd still have to host things on Youtube (because they basically have a monopoly) and worry about takedown strikes but then you're using youtube as a free platform and crucially Youtube gets nothing out of you using them as a host.

 

[The Rogue Wolf]

Yeah, that whole thing where someone can file a claim on my video, monetize it, and then keep all the money it makes while the claim gets settled? Under a sane system, that would be considered theft and be prosecutable. But it's widely known that YouTube's system isn't even DMCA-compliant, and that it exists primarily to protect YouTube from lawsuits by corporate lawyers- not to protect content creators from anything.