It seems like you can’t fire up a web browser these days without reading about another YouTube copyright scandal. This time, a Twitch streamer calling herself Alinity, outraged by the popular YouTuber Pewdiepie calling her a “Twitch THOT”—THOT being a slang acronym meaning, “That Ho Over There”—filed a retaliatory—but false—DMCA copyright claim on the video in question using YouTube’s notoriously one-sided copyright-protection system. When she announced this, live on Twitch, she repeatedly stated that she does not understand how copyright works and claims that she had friends at a company called CollabDRM who would file the claim for her. Popular YouTuber Phillip DeFranco confirmed that a claim was indeed filed despite CollabDRM’s denials. This incident merely proves that DMCA copyright abuse on YouTube, despite attempts to curb it by YouTube themselves, as well as a vocal outcry by countless content creators on the platform, continues to pose a clear and present danger to free speech on one of the Internet’s biggest websites.
What Is The DMCA?
The DMCA is short for Digital Millennium Copyright Act, signed into law in 1998, and is both the primary Internet copyright law in the United States and the primary reason the Internet as we know it exists. The important part here is that copyright holders can issue takedowns on content that has been shown to infringe on their intellectual property, but if the content was user-uploaded, the site is not responsible. This is known as the “safe harbor” provision, but it comes with the caveat that it only applies if, among other things, the site in question has been shown to take immediate action against user-uploaded copyrighted materials on its servers, according to 17 U.S.C. §512(c). This is vital, as it allows the Internet in its current form to exist. Without the safe harbor provision, sites that depend on user-uploaded content, such as YouTube, Facebook, and Twitter, likely would not have ever been created. In fact, due to the overwhelming amount of piracy on their websites to this day, even if they had been able to start operations, they would have a difficult time succeeding.
What Is Fair Use?
There is another part of copyright law that is crucial to the Internet and free speech in general: fair use. Fair use is an exception to a copyright holder’s property, in which copyrighted material can be used for the purposes of education, parody, review, or commentary. This is why, for example, there is a thriving film-review scene on YouTube in which reviewers often use stills or clips from the movie in question, such as Your Movie Sucks or the highly-popular channel, CinemaSins.
However, YouTube and other major media sites are so large that they cannot police their own content effectively. In order to maintain their immunity to prosecution under the safe harbor provision, they need to show that they are making a good-faith effort to combat piracy. But these normal methods of combating piracy—such as moderation teams—would be astronomically expensive. As a result, YouTube has sought solutions that require little human intervention on their part, such as automated solutions or a manual report system. These attempts at forging a silver bullet have been disastrous, as YouTube’s automated systems, like the infamous ContentID system, have been shown to tag the wrong material and fail to distinguish between fair use and copyright infringement. Its reporting system is incredibly one-sided, as countless content creators have shown in the past.
In short, a copyright holder can file a DMCA copyright claim or a copyright strike on an infringing video. YouTube will overwhelmingly grant the copyright holder’s request, whether legitimate or not, and either a claim or a strike will be issued. A copyright claim demonetizes the offending video, hitting the video-uploader’s bank account and taking down the video but not doing more damage than that. A copyright strike, however, is far more dangerous, as it is tied to the user’s account and after three copyright strikes are issued, the user’s channel is deleted outright, often along with their career. Fighting a false DMCA takedown involves a laborious reporting process which can take weeks or even months. False DMCA claims have been issued for purposes as far-ranging as silencing a critic of one’s work to facilitating an act of terror.
The problem with ContentID
ContentID is a particular thorn in the side of free speech and one of the primary automated solutions YouTube has tried in order to stamp out piracy on their website. In essence, ContentID is a sophisticated bot that trawls YouTube videos for copyrighted audio, images, or video content and, if it detects copyright infringement, it redirects the entire video’s ad revenue to a single claimant. This occurs even if the infringing content is only a few seconds long, and as mentioned earlier, does not distinguish between fair use and piracy. In addition, the claimants’ advertisements are slapped on the video, even if the creator has specifically marked that video as ad-free. YouTube has tried to take steps in the right direction, but it isn’t enough. Combined with YouTube’s already nonexistent verification of copyright infringement, this creates a recipe for disaster. ContentID, as it is now, is little more than institutionalized theft disguised as a copyright protection system.
So What Can We Do About It?
There is sadly no easy solution to the problem. Taking the DMCA abuser to court is often not an option, as a legal case may be prohibitively expensive for many smaller channels. The abuser is often not punished by YouTube either. There is good news however, as YouTube has set up a $1M legal fund for some content creators to use in the event of false DMCA takedowns. Public opinion is overwhelmingly on the defendant’s side in these cases. YouTuber duo H3H3 were undoubtedly pleasantly surprised to discover this when they were sued by Matt Hoss over their critique of their work, and not only won the case, but, due to a Kickstarter they set up to fund their defense, could easily afford their legal fees and then some. There is little that an ordinary consumer can do to stop this abuse on their own other than show their support for fair use, and in the case of situations like H3H3’s, vote with their wallets. If the case goes to court, so long as the defendant can afford their legal fees, they are overwhelmingly likely to win the case. Also, due to rampant demonetization of YouTuber’s videos through copyright claims and ContentID, many YouTubers have moved to Patreon, a website that allows users to crowdfund their creators using a tiered rewards system doled out according to a user’s contribution. This allows creators to continue to make money from their videos despite the drought of ad revenue. Furthermore, YouTube itself has tried to copy Patreon’s system with their “Sponsor” feature (soon to be renamed to “channel membership”). It is entirely plausible that we will see a shift towards crowdfunding over advertisements in the near-future if this trend of copyright abuse and theft of advertising money continues, no doubt facilitated by ubiquitous ad-blocking software.
Image Attribute: Pixabay