How YouTube Can Fix Itself

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Albino Boo:

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.

Most of what you've said is pretty disturbing (regardless of how true it may or may not be), but this is blatantly messed up.
If courts operate that way, then the system is definitely broken.

It should be obvious, that if I walk into your house, grab your car keys, drive off with your car, and then claim it was actually my car and you stole it from me, I shouldn't be allowed to claim something like that without providing some kind of evidence of this being true.

Or, for that matter, if I borrow my neighbour's TV, and you run off with it, claiming it's actually yours, it's unreasonable not to expect proof that you aren't just making stuff up.

That's clearly fraud, and it seems nuts that a legal system would be complicit in allowing fraud by not putting any kind of burden of proof on the person making such a claim.

ffronw:

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.

Doesn't this also imply that -
1. Youtube is under no obligation to pro-actively try and determine whether something is copyright infringement or not? (Eg. Content ID isn't legally nessesary for them to be doing),
2. They can ignore claims of copyright infringement by a copyright holder unless they provided the correct details about the claim (whatever that is in a legal sense.), and anything less than that doesn't count as them having any awareness of a claim having been made.

Since content ID is a very major part of what makes youtube especially unfair, it seems odd that they would do something they aren't even remotely obligated to.
While they must provide an easy way to take down what someone has told them infringes copyright, they have no obligation to pro-actively go looking for material that potentially violates copyright...

Or am I missing something here? Legal language is often full of weird barely comprehensible nonsense anyway, so there's always the possibility that I'm misreading this, but from what I'm seeing here, youtube is doing way more than it is under any obligation to do...

CrystalShadow:

Doesn't this also imply that -
1. Youtube is under no obligation to pro-actively try and determine whether something is copyright infringement or not? (Eg. Content ID isn't legally nessesary for them to be doing),
2. They can ignore claims of copyright infringement by a copyright holder unless they provided the correct details about the claim (whatever that is in a legal sense.), and anything less than that doesn't count as them having any awareness of a claim having been made.

Since content ID is a very major part of what makes youtube especially unfair, it seems odd that they would do something they aren't even remotely obligated to.
While they must provide an easy way to take down what someone has told them infringes copyright, they have no obligation to pro-actively go looking for material that potentially violates copyright...

Or am I missing something here? Legal language is often full of weird barely comprehensible nonsense anyway, so there's always the possibility that I'm misreading this, but from what I'm seeing here, youtube is doing way more than it is under any obligation to do...

My belief (and of course I'm an editor, not a lawyer) is that they are not necessarily under an obligation to be doing content ID. However, I also believe that YouTube does so to mitigate the sheer number of claims that they would have to deal with were such a system not in place. It's more cost-effective for them to run a system like content ID that is a slight step further than DMCA requires than to have numerous additional people on staff to handle DMCA. As Albino Boo has mentioned, lawyers can be expensive, and YouTube is already struggling just to break even. They're cutting costs wherever they can.

As to your second point, the law expressly states that you cannot ignore an incorrect claim.

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).

As you can see, the law says that in the case of a notice that is faulty, YouTube (Or whatever website) still needs to promptly contact the claimant and assist them in delivering a compliant notice in order to comply with the safe harbor provisions. Just because the notice is incorrect doesn't put you in the clear.

The layman's version of DMCA has always held that you don't have to actively look for infringing material as long as you promptly deal with it when you are notified. In the case of Content ID, it's likely that YouTube has implemented that system because it persuades large corporations to allow their content onto the site, since YouTube is demonstrating a willingness to protect their IPs (and to give the rights holder the tools to assist in doing so). Again, that's just a guess, but I feel like it's probably at least partially accurate.

Albino Boo:

K12:

snip

Oh for godsake it's not in Youtube's best interest to go bankrupt through legal fees If you think there is magic wand to be waved that somehow will ignore the law then go ahead put your money where you mouth is and set up your own company. Word of warning if lawyers that get paid $1000 an hour can't do it and I'm not sure you internet expertise will stand you much stead when the FBI comes around with warrant.

And we've got a "I'd like to see you do better" argument now as well. We really are scraping the bottom of that argument barrel nice and hard aren't we. You still aren't answering the questions I'm putting forward either, by the way, but I'm not going to ask them again now.

I'm not sure if your position is that Youtube's system is already perfect (which is quite obviously false) or if you think that poor old Youtube are completely powerless to do anything other than what they're doing and we should stop being such meanies and give the poor guys a break (since you've equated any criticism with an argument that Youtube should be hiring a million lawyers on behalf of content creators, a position I have never taken) but I don't accept either case.

I don't accept your interpretation that the law leaves Youtube with only the choice to act as they are or bankrupt themselves with lawyer fees. I also don't take the law as being eternal and unchangable (if Disney can keep changing copyright law to keep the rights to Mickey Mouse then Youtube could fight to make sure it's uploaders aren't all guilty until proven innocent without evidence or recourse). Perhaps the only solution is for youtubers to use crowdfunding and have ad free channels and Youtube can just live with that lost revenue.

I'm willing to leave this as a parting thought since any likely response will probably just restate the "but expensive lawyers and stuff" point yet again.

Albino Boo:
Snip

So basically the main problem is that the law doesn't accept "We hear you, you can have the money when we confirm your claim". You're either fully complying with a claim, or standing in their way.

This still doesn't explain two things:

1. Why Youtube doesn't ask for the money back when it's proven that the claim is fraudulent, or when there is no follow-up to a counter-claim. Even if they have to take any claim at face value, is the law really so inherently broken that they can't demand it back? Because really, using the same "guilty until proven innocent" attitude on claiments who don't respond to counter-claims would pretty much solve this.

2. Why Youtube can't just say "hey, we can't do anything until the law is changed" if it's apparently so bloody obvious to lawyers but nobody else. It would get people off their back and onto doing something more productive, like trying to actually change the law.

Infernal Lawyer:

Albino Boo:
Snip

So basically the main problem is that the law doesn't accept "We hear you, you can have the money when we confirm your claim". You're either fully complying with a claim, or standing in their way.

This still doesn't explain two things:

1. Why Youtube doesn't ask for the money back when it's proven that the claim is fraudulent, or when there is no follow-up to a counter-claim. Even if they have to take any claim at face value, is the law really so inherently broken that they can't demand it back? Because really, using the same "guilty until proven innocent" attitude on claiments who don't respond to counter-claims would pretty much solve this.

2. Why Youtube can't just say "hey, we can't do anything until the law is changed" if it's apparently so bloody obvious to lawyers but nobody else. It would get people off their back and onto doing something more productive, like trying to actually change the law.

Where are the court documents proving the claim is fraudulent. What people say on twitter is not proof.

YouTube can't help you determine whether you should dispute a claim, so you'll probably want to seek your own legal advice if you're still not sure what to do.

https://support.google.com/youtube/answer/2797454

There is some misinformation out there that might lead you to believe fair use automatically applies if you say a few magic words. There is actually no silver bullet that will guarantee you are protected by fair use when you use copyrighted material you don't own. Courts will consider all four of the factors described above and weigh them on a case-by-case basis.

https://www.youtube.com/yt/copyright/fair-use.html#yt-copyright-myths

Albino Boo:

Where are the court documents proving the claim is fraudulent. What people say on twitter is not proof.

YouTube can?t help you determine whether you should dispute a claim, so you?ll probably want to seek your own legal advice if you?re still not sure what to do.

https://support.google.com/youtube/answer/2797454

There is some misinformation out there that might lead you to believe fair use automatically applies if you say a few magic words. There is actually no silver bullet that will guarantee you are protected by fair use when you use copyrighted material you don?t own. Courts will consider all four of the factors described above and weigh them on a case-by-case basis.

https://www.youtube.com/yt/copyright/fair-use.html#yt-copyright-myths

Court Documents? Twitter? What? Literally nothing you've posted has anything to do with what I said. You might want to read the article again, specifically the first point about Escrowing the funds during the disputes, because I have a feeling despite your claims of legal expertise you don't seem to understand the issue.

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.

If a Youtuber counters a claim made on their video, they are basically saying "I'm willing to settle this in court". It is then up to the Claimant to take them up on the offer. If they manually back down or take more than two weeks to do anything, then the claim is assumed to be false by Youtube's system.

Why is this important? In the vast majority of disputes that go the Youtuber's way, what happens is that the claimant simply doesn't follow up one way or another. There are no "court documents" because there is no court case; there is no court case because the claimant isn't interested in taking things that far, and would rather just leech the revenue until the timer runs down.

The point is, the claimant isn't interesting in following through, so there's no reason to entertain the notion that the claim has any validity to it. Otherwise Youtube wouldn't give any future revenue generated by the video to the Poster. That's the entire reason people are upset about the money being given the claimant even if the claim doesn't stick. So, I don't really see how your "where's the evidence lol twitter lol" comment has any weight behind it.

So, back to my questions.

Infernal Lawyer:

Court Documents? Twitter? What? Literally nothing you've posted has anything to do with what I said. You might want to read the article again, specifically the first point about Escrowing the funds during the disputes, because I have a feeling despite your claims of legal expertise you don't seem to understand the issue.

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.

If a Youtuber counters a claim made on their video, they are basically saying "I'm willing to settle this in court". It is then up to the Claimant to take them up on the offer. If they manually back down or take more than two weeks to do anything, then the claim is assumed to be false by Youtube's system.

Why is this important? In the vast majority of disputes that go the Youtuber's way, what happens is that the claimant simply doesn't follow up one way or another. There are no "court documents" because there is no court case; there is no court case because the claimant isn't interested in taking things that far, and would rather just leech the revenue until the timer runs down.

The point is, the claimant isn't interesting in following through, so there's no reason to entertain the notion that the claim has any validity to it. Otherwise Youtube wouldn't give any future revenue generated by the video to the Poster. That's the entire reason people are upset about the money being given the claimant even if the claim doesn't stick. So, I don't really see how your "where's the evidence lol twitter lol" comment has any weight behind it.

So, back to my questions.

I strongly suggest that you understand the claimant does not have to go to court, the claimant is saying to Youtube that the copyright is mine. Youtube has to be responsive to copyright claims to maintain its safe haven status under DMCA. The uploader is the one that has to go to court to say that claim is false, not the claimant. Mouthing off on twitter that something is fair use is not the same as court deciding that it is fair use.

Your questions were answered, you just didn't like the answer.

Albino Boo:

I strongly suggest that you understand the claimant does not have to go to court, the claimant is saying to Youtube that the copyright is mine. Youtube has to be responsive to copyright claims to maintain its safe haven status under DMCA. The uploader is the one that has to go to court to say that claim is false, not the claimant. Mouthing off on twitter that something is fair use is not the same as court deciding that it is fair use.

Your questions were answered, you just didn't like the answer.

That's... what I said.

The uploader is the one who says "I'm willing to go to court over this to prove the claim is false". It is then up to the claimant to take them up on that offer, or not. Or at least that's the understanding I get from videos from the likes of Jim Sterling who say that they counter-claim videos every day, which only get the claim removed because the claimant doesn't bother to do anything (who is the Youtuber going to court WITH, if not the claimant? Youtube? I'm not a lawyer despite my username, but I'm pretty sure not), and it's not exactly new for cases to be settled outside of a court.

Not once did I bring up Twitter or any collective body of random people saying "this is fair use because we say it is", so you can kindly stop inventing ridiculous strawman arguments to pull down. I honestly don't know where you're getting that from. Again, you can't claim that the thing has to have a court ruling when one party isn't willing to take things that far: settling issues outside of court IS a thing, you know (I mean, you're the lawyer).

Infernal Lawyer:

Albino Boo:

I strongly suggest that you understand the claimant does not have to go to court, the claimant is saying to Youtube that the copyright is mine. Youtube has to be responsive to copyright claims to maintain its safe haven status under DMCA. The uploader is the one that has to go to court to say that claim is false, not the claimant. Mouthing off on twitter that something is fair use is not the same as court deciding that it is fair use.

Your questions were answered, you just didn't like the answer.

That's... what I said.

The uploader is the one who says "I'm willing to go to court over this to prove the claim is false". It is then up to the claimant to take them up on that offer, or not. Or at least that's the understanding I get from videos from the likes of Jim Sterling who say that they counter-claim videos every day, which only get the claim removed because the claimant doesn't bother to do anything (who is the Youtuber going to court WITH, if not the claimant? Youtube? I'm not a lawyer despite my username, but I'm pretty sure not), and it's not exactly new for cases to be settled outside of a court.

Not once did I bring up Twitter or any collective body of random people saying "this is fair use because we say it is", so you can kindly stop inventing ridiculous strawman arguments to pull down. I honestly don't know where you're getting that from. Again, whether or not the claim is valid isn't really open for debate when the claimant isn't interested in pursuing legal action when their bluff is called: if they had a case, they would have taken the thing further.

For youtube to pay the 30 days of revenue to the uploader they need a court judgment. What happens under Youtube's system is every 30 days without a court order the claim lapses but is free to be made again. The 30 day limit expiring is not proof that the claim is false. Jim Sterling and his ilk are precisely who I am talking about, what they say about Youtube is not necessarily true. Jim Sterling may say he gets claims all the time and he wins but he is a man that is playing to the prejudices of his audience. Furthermore this entire thread is full of people saying I'm wrong on the ground that its unfair. Indeed the post before yours is saying precisely that.

Albino Boo:

Infernal Lawyer:

Albino Boo:

I strongly suggest that you understand the claimant does not have to go to court, the claimant is saying to Youtube that the copyright is mine. Youtube has to be responsive to copyright claims to maintain its safe haven status under DMCA. The uploader is the one that has to go to court to say that claim is false, not the claimant. Mouthing off on twitter that something is fair use is not the same as court deciding that it is fair use.

Your questions were answered, you just didn't like the answer.

That's... what I said.

The uploader is the one who says "I'm willing to go to court over this to prove the claim is false". It is then up to the claimant to take them up on that offer, or not. Or at least that's the understanding I get from videos from the likes of Jim Sterling who say that they counter-claim videos every day, which only get the claim removed because the claimant doesn't bother to do anything (who is the Youtuber going to court WITH, if not the claimant? Youtube? I'm not a lawyer despite my username, but I'm pretty sure not), and it's not exactly new for cases to be settled outside of a court.

Not once did I bring up Twitter or any collective body of random people saying "this is fair use because we say it is", so you can kindly stop inventing ridiculous strawman arguments to pull down. I honestly don't know where you're getting that from. Again, whether or not the claim is valid isn't really open for debate when the claimant isn't interested in pursuing legal action when their bluff is called: if they had a case, they would have taken the thing further.

For youtube to pay the 30 days of revenue to the uploader they need a court judgment. What happens under Youtube's system is every 30 days without a court order the claim lapses but is free to be made again. The 30 day limit expiring is not proof that the claim is false.

See, this is the answer I was looking for. "They need a court order to claim the money back" is a lot more acceptable to a layman than "It's not up to Twitter nerds to say what fair use is", especially when said layman never brought up Twitter or any sort of public poll up, don't you think? "Your questions were answered, you just didn't like the answer", indeed.

Jim Sterling and his ilk are precisely who I am talking about, what they say about Youtube is not necessarily true. Jim Sterling may say he gets claims all the time and he wins but he is a man that is playing to the prejudices of his audience. Furthermore this entire thread is full of people saying I'm wrong on the ground that its unfair. Indeed the post before yours is saying precisely that.

Hence my second question: if there is so much misinformation being spread around, to the point where what sounds like a ridiculously simple fix to one of the main issues simply isn't possible, why doesn't Youtube say anything about it? I would certainly think that it's within their interests to say "we can't do much without a law change". Because it's ridiculous what's happening, even you have to admit that it's not an ideal scenario.

ffronw:

As you can see, the law says that in the case of a notice that is faulty, YouTube (Or whatever website) still needs to promptly contact the claimant and assist them in delivering a compliant notice in order to comply with the safe harbor provisions. Just because the notice is incorrect doesn't put you in the clear.

The layman's version of DMCA has always held that you don't have to actively look for infringing material as long as you promptly deal with it when you are notified. In the case of Content ID, it's likely that YouTube has implemented that system because it persuades large corporations to allow their content onto the site, since YouTube is demonstrating a willingness to protect their IPs (and to give the rights holder the tools to assist in doing so). Again, that's just a guess, but I feel like it's probably at least partially accurate.

I guess it does make some sense in a twisted kind of way.
Too bad the consequences of their behaviour are very one-sided.

It's basically one rule for large corporations and another rule for everyone else at this point, for all intents and purposes.

Then again, the law keeps getting more and more one-sided as well, it seems.

And regardless of how balanced a country's own original laws were, a bunch of treaties make it very hard to be the odd one out.
(For instance, Australia has long had laws explicitly allowing the use of devices that jailbreak or defeat region lockouts - Yet we have now signed a treaty that raises the question of whether keeping that law violates the treaty provisions.)

If we were to decide (as a single country) that in fact, current copyright laws have gotten way out of hand and should be brought much closer to their original arrangement, (as one possible example) there's almost nothing you can do about it unless you can basically get every other country on the planet to agree with your position as well.

While stuff like SOPA and PIPA and the DMCA have made things worse, the Berne Convention is what really holds back any real reform, even assuming a country thought it needed a more permissive set of laws, short of no longer being a part of the convention (with the explicit consequence that anyone creating works in your country has no legal protection whatsoever overseas), there's very little you can really change.
Which makes any kind of radical reform of copyright laws an all or nothing kind of thing...

Rather messed up, that the laws are what they are, and that a company like google/youtube feels that their current draconian and rather unfair measures are the only reasonable option they have to protect themselves from legal issues (or the costs associated with such issues)

Infernal Lawyer:

See, this is the answer I was looking for. "They need a court order to claim the money back" is a lot more acceptable to a layman than "It's not up to Twitter nerds to say what fair use is", especially when said layman never brought up Twitter or any sort of public poll up, don't you think? "Your questions were answered, you just didn't like the answer", indeed.

Jim Sterling and his ilk are precisely who I am talking about, what they say about Youtube is not necessarily true. Jim Sterling may say he gets claims all the time and he wins but he is a man that is playing to the prejudices of his audience. Furthermore this entire thread is full of people saying I'm wrong on the ground that its unfair. Indeed the post before yours is saying precisely that.

Hence my second question: if there is so much misinformation being spread around, to the point where what sounds like a ridiculously simple fix to one of the main issues simply isn't possible, why doesn't Youtube say anything about it? I would certainly think that it's within their interests to say "we can't do much without a law change". Because it's ridiculous what's happening, even you have to admit that it's not an ideal scenario.

Just getting over you very basic legal concepts let alone the complex legal reality of balancing of rights and liberties of 3 different parties is not something that you can do in one twitter friendly post. In addition any statements on the matter would have to be cleared be legal in case Youtube takes on any implied liability. You could even talk yourself into tortious interference case by saying that any claims are invalid.

Albino Boo:

Just getting over you very basic legal concepts let alone the complex legal reality of balancing of rights and liberties of 3 different parties is not something that you can do in one twitter friendly post. In addition any statements on the matter would have to be cleared be legal in case Youtube takes on any implied liability. You could even talk yourself into tortious interference case by saying that any claims are invalid.

Did an employee of Twitter kick your dog or something? Because you seem to be incredibly insistent on using any excuse to bring them up as an object of mockery.

I mean, I'll accept everything aside from "it'll take too long to explain quickly", but still.

It sounds like the youtube content ID system is a wholly different thing then then DCMA? Like they have the system as a way to keep people from making DCMA clames that would be more trouble to deal with? I think I might be getting it wrong though.

Infernal Lawyer:

Albino Boo:

Just getting over you very basic legal concepts let alone the complex legal reality of balancing of rights and liberties of 3 different parties is not something that you can do in one twitter friendly post. In addition any statements on the matter would have to be cleared be legal in case Youtube takes on any implied liability. You could even talk yourself into tortious interference case by saying that any claims are invalid.

Did an employee of Twitter kick your dog or something? Because you seem to be incredibly insistent on using any excuse to bring them up as an object of mockery.

I mean, I'll accept everything aside from "it'll take too long to explain quickly", but still.

Look, the existence of this article is case in point. The author is man whose knowledge of the coding aspects of game development far outstrips mine and I strongly suspect that he is way better coder than I am. And yet he never questioned the basic assumption of the article that Youtube is somehow being evil. Form past articles I know that Shamus Young spends time on social media. The problem is with social media that it is an echo chamber of your own views. So you have a large number of people never asking themselves the question why. I find it rather sad that an intelligent individual, in the age of the internet, did not spend a day or two looking at the possible difficulties that Youtube face. Information and guides to the basic principles of copyright law are out there and even easier, there has to be somebody (I hope anyway) on the Escapist staff whose day job is to deal with issues of IP. The Escapist is covered by the same laws and faces similar problems to Youtube, admittedly on a smaller scale.

The internet was supposed to usher in a new age of reason, instead by the medium social media, it has closed off people from one another. No one wants to build a thought up from first principles anymore instead people sit in hermetically sealed groupthinks where offending ideas are crushed. People are forgetting that the world is complicated and messy. There aren't easy solutions, different forces have to be balanced off against each other and that means sometimes you can't get what you want. The age of reason is dying and the worst aspects of the Athenian republic are being repeated. Trump and Corbyn would have fitted in nicely as demagogues in Athens the best part of 2500 years ago.

Albino Boo: I've been carrying on this conversation on Shamus's blog, but you seem to be knowledgeable about this so I want to post my question here.

My problem with your position on this issue, is that it seems like your entire argument is predicated on the assumption that a claim has actually been made that needs adjudication. However, with ContentID that is not the case.

In an ideal world, the way ContentID works, a rights-holder uploads their work to YouTube. This content is then used by the host to automatically search for similar material. If another video is "similar enough" to the rights-holder's original work (as defined by the rights-holder), the system automatically either removes the offending video or automatically starts funneling revenue to the alleged rights-holder--all without any actual claim being made. YouTube then gives the alleged rights-holder a grace period to file a real claim--during which the video will remain down/continue feeding money in an automated manner.

What is happening is essentially the same thing as searching for "child pornography" in a Google search and automatically blacklisting every single result while you report them to the police, and you get paid a pedophile-bounty for every site your turn in. A Google hit is far removed from having probable cause to take any definite action.

By the same token, ContentID is many steps removed from an actual legal claim--and YouTube is not legally liable until such a claim has been made. A large part of the reason why the scammers get away with what they are doing is that at no point do they need to file anything that would be legally binding to them--which would open a false claimant up to retributive perjury accusations and damages suits--to execute/get paid for their schemes.

I strongly suspect the system is the way it is not to protect YouTube legally, but rather because large publishers like Disney or Warner Music don't want to be arsed to hire people to protect their intellectual property rights, so YouTube provides this automated service to obviate a need for a lawyer on the publishers' side. What SHOULD be happening, is YouTube should sit on the money after ContentID flags a video until an actual claim is made, and THEN they can forward the revenues to the claimant for CYA purposes. That would not require a lawyer on Google's side, because there's legally no "someone needs to decide who this money belongs to" question that needs answered until an actual claim is filed.

From the article, I think Shamus has a decent grasp on the legal issues. I don't think you have a decent grasp on the technical programming issues, because you're assuming there's a human in the system somewhere filing a claim when there isn't.

You know, if it's legally untenable for YouTube to escrow the money, just change the policy to be "Videos that are in dispute are ineligible for ad revenue until the dispute is settled."

This isn't ideal, but it would completely cut the legs off of anyone attempting to steal ad revenue without proving infringement. It'd take out a good chunk of what's going on, and make it easier to focus on the other abuses -- the ones where videos are taken down just because the company doesn't appreciate Fair Use, the ones where jerks are just harassing creators, and the robotic claims.

Also, the robo-flagging issue needs to get fixed. First, set up categories of Almost Certainly Fair Use, Maybe Fair Use, and Probably Not Fair Use.

When you post a video, you need to specify if you're using material you don't own, and what the general categories of your defense are: It's a review, it's commenting on or criticizing the material, it's educational, it's a parody, it's transformative, etc. This should make it easier to see what's going on, and to direct it to the right staff at YouTube.

Secondly, YouTube needs to set a couple thresholds for the amount of copyrighted material used from a single source. I suggest 40% is the high threshold (under half a song/episode/movie, with generous wiggle room so you can't just split it in half and post two vids), and the low threshold is based on the type of material, say 25% of a song (or under 1 minute 1 second), 15% of an episode (or under 4 minutes, if it's a 20-30 minute episode), 5% of a movie (or under 5 minutes, if it's a roughly 2-hour movie).

Game footage is exempt from these thresholds due to two criteria: There's a much larger amount of content in a game than in a movie (generally), and the reality of an interactive medium means showing footage doesn't inherently reduce the game market.

If your video passes the high threshold, you've posted something like half a song/episode/movie or more, which means your video hits the Probably Not Fair Use pile. I could see one category that avoids this: If a source has both audio and video, but your video uses only one of them (pairs footage with new audio or audio with new footage), it's more likely fair use even if it's longer, so stick it in Maybe Fair Use. (The robots need to be able to recognize basic changes such as just altering the audio a little, and be able to catch songs played against a static background image.)

If you're under the low threshold, you've posted a tiny amount of the material, and are Almost Certainly Fair Use (two-second videos should not be auto-flagged! honestly). Fewer problems for you. If you're between the two, you're in Maybe Fair Use.

Some categories may have different likelihoods of ending up in the piles. For example, marking your video as Education might have it end up in Maybe Fair Use even if you've used 100% of the material. I'm not sure which categories might warrant special treatment like that.

This puts incoming videos that rely on Fair Use in three piles. Make a group of YouTube staff members responsible for reviewing videos to determine their likely status. The group that reviews Almost Certainly Fair Use can just have a reasonable layman's understanding of Fair Use; they're just trying to look for the "hey, that's totally not kosher, dude" videos and move them to the Maybe Fair Use pile (or Probably Not Fair Use, if it's pretty obvious there's a problem). Anything they think is probably fine goes into the "we gave it a once-over" category and no action is taken unless someone human actually makes a claim against it later on.

The Almost Certainly Fair Use group is also there to confirm that the categories the poster indicated are what is actually happening in the video. Is it really a review? Really commentary or criticism? Really educational? Really a parody? But mostly they're there to ensure that reviews, commentary and criticism, and education are quickly vetted so they don't have to worry about robo-flags or trouble unless someone who actually owns the material comes along to make a claim.

The group that reviews Maybe Fair Use should probably be lawyers who specialize in Fair Use. They just push the videos in one direction or the other: Yeah, it's fine (Almost Certainly Fair Use) or Dude, that's not cool (Probably Not Fair Use). Point is that a human is reviewing it directly, in context, not relying on robots.

The Maybe Fair Use group turns a closer eye on parodies, fanvids, machinima, cosplay, and in general things that are less obviously Fair Use. They're trying to figure out if YouTube should spend more time vetting these videos or not. (Note that if a video gets bumped between Almost Certainly Fair Use and Maybe Fair Use a couple times, it warrants a closer look by an actual lawyer.)

The group that reviews Probably Not Fair Use has to be lawyers who specialize in Fair Use. This is the category where the video probably gets action taken against it -- unless the lawyer goes "Oh, yeah, that's following the law" and bumps it straight to "no problem" (it doesn't get reviewed by the other groups, it's just fine at that point).

If the lawyer thinks it's not Fair Use, or that it's strongly questionable, then the process starts. Firstly, YouTube notifies the video's creator that their video is in iffy status, and gives them a short time (say 3 business days) to either change the video, or provide a defense for their usage. If the video is taken down, the creator's account gets a tally: If an account posts and then takes down non-fair-use videos a couple times, they can be assumed to just not understand the boundaries, but if they do it more than say 4 times, they get moved to a watch list for a while, where their robo-flagged vids have to get reviewed by YouTube's lawyer before they are eligible for public status.

However, if the video doesn't get taken down -- if the creator provides a defense -- then YouTube notifies the owners of the content to come look at the video themselves (through a non-monetized link). This method should also remind them of how Fair Use works, and that they don't have to like what the video is doing to their material, but if they do think infringement has taken place, they can file a claim like normal. If they choose not to file a claim, the video's fine.

I think a system like this would reduce the burden of the ContentID system on reviewers, critics, and educators, make it easier to avoid trouble if you're into more transformative works, and push the bulk of the penalties onto people who are using a larger portion of the material or using it in less defensible ways. Plus, it would leave the question of claims to the companies who actually own the stuff, not have YouTube make it on their behalf -- this would stop the cases where YouTube's system penalizes videos that the content owners were perfectly fine with.

Also: There should be a "Keep Circulating the Tapes" category for material that is not in the ContentID system but is actually fully reposted material where the original owners can't be located or the like. This applies for stuff like old commercials (who'd've predicted that being able to watch a commercial or PSA from the 90's would be valued today?), shows and movies and songs that otherwise would be gone from our collective history, and potentially behind-the-scenes footage or dailies, etc. Until such time as a legitimate claim from the original company comes up, these repostings can be left alone because they are helping preserve material that might not even have an owner anymore. Recorded TV broadcasts that never made it to DVD, for example.

Anyway. Changes need to happen, and the community brainstorming the changes is at least helpful in looking at the pros and cons. I've got a video up on YouTube about my take on things (not detailed solutions, but some talking points and a lot of irritation), which is called "Sharks, Robo-Sharks, Crabs, and Leeches: Fair Use Under Attack." Those terms are for the types of people filing false claims, which the video explains, because I think we need some anchors for these concepts so it's easier to discuss them.

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