By Robert Marotta
With 2016 coming to a close, it is important to take a look back at a movement that was lost to the noise of the presidential election. Over the past year, online content creators who use others' copyrighted works on YouTube came together in solidarity under the banner of "Where's the Fair Use?" Their aim was to bring attention to what they believe was YouTube's unfair system of preventing copyright infringement. While their content probably would have constituted fair use at trial under U.S. copyright law, videos and whole channels were being taken down. The chilling effect on commentary, criticism, and creativity as a whole placed a stranglehold on this burgeoning form of media.
As a 2014 episode of "South Park" noted: "Today commentary is the content." YouTube is abuzz with reviewers sharing their opinions on films, video games, and music. This content ranges from clips of copyrighted material over humorous voiceovers to full blown parody sketches. As the younger generations move away from television as their main source of content, YouTube increasingly captures more viewership. Its increasing influence on culture cannot be overstated. The rise of this medium brings with it the rise of a new type of creator. Without the big budget and exposure of shows like "Saturday Night Live", these creators critique, comment, and poke fun at copyrighted works in an engaging way. In the process, they can create new fans, and new ways of enjoying often forgotten films and games. If YouTube's current system regarding copyright enforcement continues, then these creators and their fan bases are in trouble.
Under 17 U.S.C. § 107, the use of another's copyrighted work for criticism, comment, news reporting, teaching, scholarship, or research, is not an infringement of copyright as a defense in an infringement action, and protected under fair use. This is a central pillar to our copyright system. Most relevant to the discussion here is criticism and comment. Integral to the content of channels such as Cinema Sins, TEAMFOURSTAR, Channel Awesome's The Nostalgia Critic, and the Angry Joe Show, are the combination of scenes from various films and games intercut with commentary/parody to highlight a point. In a typical "Nostalgia Critic" episode, the absurdity of well-loved movies from the viewer's childhood are shown through comedic voiceovers. This creates a very clear reference for viewers who may not have seen the particular film in years, and allows them to appreciate the humor. The use of clips is especially important with respect to video game reviews, as found on the Angry Joe Show and many others. Any technical problems or fluid dynamic gameplay can only be truly shown to the viewer firsthand. It allows viewers to make informed purchases on increasingly expensive games. Without the ability to use short clips of the content, these reviewers' videos are completely neutered. The creators highlighted here are only a fraction of those affected. As some of the vanguards of the industry, they may have the resources to fend off a copyright attack on YouTube. Smaller up-and-coming channels are not as fortunate.
YouTube's flawed copyright system stems from the Safe Harbor Provision under Title II of The Digital Millennium Copyright Act (DMCA). While protection of Internet Service Providers (ISPs) like YouTube, under the DMCA, is integral to protecting those that make content available, it is their implementation of this system that creates problems. Under YouTube's system, there are two categories of copyright infringement penalties: 1) a claim and 2) a strike. The more severe is a strike, whereby the copyright holder must make a complete and valid legal request asking YouTube to take the video down. Furthermore, upon three strikes, a content creator will have its account terminated. This includes all videos being removed, along with ratings and comments that have accumulated since the videos were posted. Finally, the creator is prevented from creating a new account.
Many users manage multiple channels. A strike on one channel may affect non-infringing channels. When a strike is issued, a similar partner strike is placed on a user's account. These partner strikes are considered pending for the first 30 days. If the content creator has not resolved the issue after this period, it becomes "active". Accumulating 10 or more active partner strikes severely limit the online creators' accounts. With 10 partner strikes, a content creator loses the ability to add new channels or move channels between content owners. Even if a content creator removes channels, this will not resolve the copyright strike. At 15 or more partner active strikes, the content creator's freedom of expression is curtailed. A content creator loses the ability to access YouTube promotional features. This includes the ability to create custom thumbnails, modify channel art, add annotations (i.e. videos), and other features. With 20 or more active partner strikes, the user is prevented from uploading new videos or live streams, and YouTube further retains the right to terminate.
A silver lining does exist for content creators. After 90 days (120 days after a copyright strike was issued), a partner strike expires and is removed from the total. However the sheer volume of strikes many of the big creators receive in short periods of time limit the availability of this remedy. Multiple creators face new claims or strikes every other day.
A further remedy on which most content creators rest is the submission of a counter notification. They must submit that the takedown occurred due to a mistake or misidentification of the material. This seemingly fair system heavily favors the copyright owners. Many of the online content creators note the claims come not from the copyright holders themselves, but by automated rights management firms. It appears that these groups operate without placing an actual human in front of the content, whereby the nature of fair use could be readily apparent. Furthermore, no penalties for false strikes are included in the system, thereby favoring rights holders. Content creators feel as if they are under the thumb of often far wealthier organizations, and bear the costs for over-policing.
The next, and more common mechanism of how copyright infringement is handled on YouTube is a copyright Content ID claim. The claims process is dependent on YouTube's Content ID program, whereby the rightsholders provide the YouTube with full copies of their works. YouTube then compiles these reference files into a database, from which all videos are compared. The system is able to determine partial matches, video matches, and audio matches. It can even detect matches when the video has been uploaded with poor sound or video quality. When a match is detected, YouTube automatically takes action based on what the copyright holder wants: the video can be left alone, taken down, or left up with the rightsholder somehow monetizing it. The effect on monetization has especially drawn the ire of YouTube content creators, as even when a claim is resolved, they would not get the lost profits made off the video while the claim was in progress. In response to the protests of content creators, YouTube seems to have amended its policy on monetization. Currently, YouTube's content ID process includes the placing of monetized profits in a separate account to be paid to the appropriate party upon resolution. In response to the recent outcry from content creators, YouTube amended its systems, showing a willingness to support smaller creators. However, but problems still persists.
The claim system is rampant for abuse, and many content creators have seen their freedoms greatly reduced. When a claim is disputed, the claimant copyright holder has 30 days to respond. If no response is given, then the video is reinstated. If the copyright holder does respond, it can remove or reinstate the claim. If the latter, the user must file an appeal to which the copyright holder has another 30 days to respond. Online content creators recount horror stories of dealing with automated response from YouTube and rights management firms. For smaller creators, this lengthy, possibly costly process harms their ability to create additional content, which may impact their livelihoods. Furthermore, free speech is implicated, as many creators have seen videos that are critical or negative of certain films and games suffer claims and strikes. This indicates that some copyright holders may be attempting to silence criticism, and not merely protect their copyrights. The automated system has even led to the takedown of videos containing only commentary about films and games, with no actual footage or sound from those copyrights. Currently, YouTube has no penalties for erroneous claims or strikes, and thus the system incentivizes a "claim first" approach.
After widespread outcry from content creators, YouTube reexamined its system. Courts have also begun to warm to the YouTube user complaints. In Lenz v. Universal Music Corp, 801 F.3d 1126 (9th Cir. 2015), the U.S. Court of Appeals for the Ninth Circuit held that copyright holders must consider fair use when filing a takedown notice. In that case, Stephanie Lenz posted a 29-second clip of her young children dancing to the Prince classic, "Let's Go Crazy." YouTube sent her a takedown notice, complying with its duties under the DMCA. In response, Lenz posted a counter notification, claiming that the video should be re-posted on grounds of fair use. Later that year, Lenz sued for misrepresentation under the DMCA 17 § U.S.C. (f). Her claim further sought a declaration that the use of the song in the video was non-infringing. She rested her case on DMCA 17 U.S.C. § 512(c)(3)(A)(v), whereby the copyright holder must consider whether use of the material was allowed by the copyright owner or the law. Integral to the case holding is the Court's view that because 17 U.S.C. § 107 created a type of non-infringing use, fair use is "authorized by law" and a copyright holder must consider the existence of fair use before sending a takedown notification under § 512(c) (Lenz, at 1132-1133).
While Lenz represents a step in the right direction, many content creators will certainly still face hurdles. Despite the holding, in the year following this case, online content creators have seen the number of claims and strikes on their channels exponentially increase. The consequence of such a high volume of complaints is that they all cannot be defended. Furthermore, the case does little to address the automated takedown notices, and whether or not this would be some indicator of bad faith for the purposes of a misrepresentation claim. The takedown initiated by Universal had an actual human evaluate allegedly infringing content, a far cry from the automated rights management firms of today. It does seem to hint that a willful blindness standard can be used to determine whether the copyright holder knowingly materially misrepresented that it held a "good faith belief" the offending activity was not a fair use under 17 U.S.C. § 512(f). However as Lenz encountered, sustaining a misrepresentation claim on grounds of willful blindness is difficult to prove, due to the adoption of a subjective test for good faith, and whether the copyright holder was subjectively aware that the allegedly infringing content contains fair use.
To ensure that this burgeoning medium is allowed to succeed, content creators should stay vigilant, as YouTube and other online platforms are at risk. The hope is that creators of new content who rely on copyrights can continue to create, within the confines of the law. As YouTube grows, so too does the importance of these new creators. The rise of this new form of media has led to problems applying copyright laws that never contemplated the difficulties of the digital age. The risk of not adequately protecting these new content creators places a heavy burden on them, and chills otherwise entertaining and insightful content, as well as free speech. The questions left open by Lenz and issues raised by YouTube content creators means that this subject matter is primed for further review by the courts.