YouTube Infringement Tools Are All Foam and No Beer for Small Creators (Part 2)
Photo Credit: iStock/PressureUA
In Part 1 of this blog post, we reviewed several YouTube copyright infringement tools that are available to certain copyright owners. These tools included Content ID, Copyright Match, the Content Verification Program, and Manual Claiming, as well as using YouTube’s webform and contacting YouTube’s Designated DMCA Agent. In Part 2 of this blog, we look at some newer tools that were introduced by YouTube earlier this year and examine some of the problems with YouTube’s copyright infringement tools.
YouTube’s Newest Copyright Infringement Tools and Features
There are a couple of new tools that YouTube has rolled out over the past several months.
The first of these new tools is called the “Checks” tool, which was announced in March of this year. Unlike the other tools discussed in part one, the Checks tool is only used by those who upload videos onto their YouTube channel, and not by a copyright owner searching for infringing videos.
How The Checks Tool Works
During the upload process, Checks give the uploader the ability to scan the video they are uploading for potential copyright infringements (as well as ad suitability restrictions). This is done by comparing the uploaded video against copyrighted works that have been fingerprinted and are part of the Content ID database. That limitation is significant since the video being uploaded may still be subject to a takedown request if a copyrighted work is not part of the Content ID database or is added to the database after the video is uploaded. If the uploader is not aware of this limitation, it may give them a false sense of security. According to YouTube, the whole process takes only three minutes to complete.
What Happens If The “Checks” Tool Reveals a Potential Copyright Infringement
If a potential copyright infringement is revealed during the Checks scan, the uploader can get more information by clicking on a link called “see details.” If the uploader clicks on that link, they should be able to learn about the copyrighted work (including the timecode it appears at within the video) and what the potential infringement is. The uploader can then decide what to do before posting the video. They can alter the video to avoid copyright concerns or decide to not post the video. The uploader can also dispute the potential copyright claim prior to posting the video.
While the dispute is being considered, the uploader can either wait until the dispute is settled before uploading the video, or upload the video while waiting for a final determination by YouTube. If the video is uploaded and the copyright owner prevails in the dispute, then any ad revenue earned during that time is paid out to the copyright owner. It seems odd that YouTube would allow the video to be posted when it knows of a potential copyright infringement claim the moment the dispute is filed. Allowing the video to be posted would seemingly put YouTube at risk of losing their safe harbor under the DMCA because not only would YouTube know of the potential infringement, but it would also presumably be making money through ad revenue generated by the video.
Preventing Infringing Copies from Being Re-Uploaded
The second tool, which is more of a new feature, was announced by YouTube in June of this year. This new feature will allow copyright owners submitting a “removal request” (using YouTube’s web form) to check a box to “prevent copies of these videos [from] appearing on YouTube going forward.” After checking the box, the copyright owner will also be able to see how many videos have been blocked from being uploaded.
Although this new feature was announced in June, it will be rolled out in a staged process that will take a few months for full availability. In order to take advantage of this new feature, the copyright owner must own the worldwide exclusive rights to the work and agree to let YouTube share their name and email with future re-uploaders.
This new feature has the potential to be a game changer by ensuring that infringing content stays down, but as with the other tools discussed above, whether it is or not will largely depend on how YouTube implements it. For years, copyright owners have complained that the notice and takedown process is like a game of whack-a-mole because a rights holder gets the material taken down only to see it pop back up instantaneously. This new feature may help address this problem. Kudos to YouTube for developing it. Like the other tools mentioned here, whether this feature is successful will largely depend on how YouTube implements it going forward.
The Biggest Problems with YouTube’s Suite of Copyright Infringement Tools
YouTube has developed an impressive suite of copyright infringement detection, management, and takedown tools. Unfortunately, YouTube’s copyright infringement tools are falling well short of their potential because of the way YouTube is employing them. Several problems have already been discussed in part 1 of this blog, and fortunately some of these problems have been or are in the process of being addressed by YouTube. But several other problems with these tools continue to exist, for example:
Problem 1: Most Small Creators Cannot Get Access to YouTube’s Suite of Copyright Infringement Tools
Without a doubt the biggest problem with YouTube’s roll out of these tools is the lack of access to them. Access to these tools is primarily reserved for large copyright owners. Very few small businesses and individual creators have access to these tools. Numerous individual creators and small businesses who are members of the Copyright Alliance have tried to get access to Content ID, Copyright Match, and/or CVP, only to be denied—usually within minutes of applying and with no reason given by YouTube. The creators and small business operators who have been denied rely on copyright for their livelihoods and understand the copyright law and are unlikely to abuse it.
Preventing small creators from accessing these tools is especially problematic for creators of musical works. When someone uploads an MP3 file onto YouTube, the MP3 file is converted into a MOV file. This effectively strips out the Copyright Management Information (CMI) metadata associated with the MP3 file. So when infringing files are searched for on YouTube, infringements may not show up when that search is conducted by using some search tool other than Content ID. The infringement will only show up through a Content ID search, which makes having access to Content ID technology even more imperative.
YouTube’s limitation on access to its tool is one of the primary issues in a pending class action lawsuit filed in July of 2020 by Grammy-winning composer and musician Maria Schneider and Pirate Monitor Ltd. against YouTube in the Northern District of California. The suit alleges that YouTube does not offer the plaintiffs, who are “ordinary creators of copyrighted works,” the same opportunity to remove infringing work as it does for larger content creators. The plaintiffs liken Content ID to a “two-tiered system” that “deliberately” leaves smaller independent creators “out in the cold.” The plaintiffs also claim that infringing work that is removed from the platform is often re-uploaded by users without repercussions.
With access to Copyright Match expanding and the new feature being added to the webform that allows copyright owners to prevent re-upload of infringing videos (as noted above), perhaps the issues raised in the Schneider class action suit and that we raise in this blog will be effectively addressed.
Problem 2: Uploaded Videos with Copyright Claims Don’t Get Copyright Strikes
In addition to the access limitation there are other problems with the way YouTube has implemented these tools. For example, as raised in the Schneider class action, uploaded videos that are subject to copyright claims through Content ID, Copyright Match, or the new re-upload feature do not receive a copyright strike.
That may be an appropriate approach sometimes, but not as a general rule. Someone who frequently flouts the copyright law by uploading infringing videos should get a strike (or more). The same is true for someone who engages in flagrant infringement. The DMCA requires that platforms have a repeat infringer policy and that repeat infringers be terminated once they have accumulated a certain number of strikes over a period of time. While one can easily understand and appreciate the sensitivity surrounding doling out copyright strikes to YouTube uploaders whose infringements are inadvertent, establishing a firm rule that these infringements will never result in a copyright strike is the wrong approach, and may very likely be incompatible with the DMCA’s repeat infringer policy requirements.
Problem #3: YouTube’s Copyright Infringement Tools Are Built on a Faulty Premise of Frequent Abuse
It’s not possible to talk about takedown tools without talking about how these tools are occasionally abused. Yes, there are advertent mistakes made when using these tools. Yes, there are zealots who misuse the tools. Yes, there are people who use the tools incorrectly because they do not understand copyright law are well as they should. But it’s important to understand that the perpetrators of these mistakes and misuses are BOTH copyright owners searching for infringing content on YouTube and YouTubers who upload videos. In other words, there are bad actors on both sides.
There are also good actors on both sides. And there are way more good actors than bad ones, it’s just that we all tend to focus on the bad actors. Just like the old saying that the “exception should not swallow the rule,” YouTube’s copyright infringement tools should be employed in way that caters to the good actors and not the bad ones. By focusing on the small group of bad actors, YouTube and severely limited the potential of Copyright Match and other tools.
YouTube should be commended for developing a collection of useful copyright enforcement tools, but it is essential that it take a good look at all their copyright infringement tools and change the way they are being employed if they really want to take a meaningful step toward combatting infringement on the platform. The Copyright Alliance would be happy to work with YouTube on this effort.