Posted by Fred von Lohmann, Copyright Legal Director
More than 400 hours of video are uploaded to YouTube every minute. Some of those uploads make use of existing content, like music or TV clips, in new and transformative ways that have social value beyond the original (such as a parody or critique). In the U.S. this activity is often protected by fair use, a crucial exception to copyright law which can help discussion and creativity across different mediums to continue flourishing.
YouTube will now protect
some of the best examples of fair use on YouTube by agreeing to defend them in court if necessary.
We are offering legal support to a handful of videos that we believe represent clear fair uses which have been subject to DMCA takedowns. With approval of the video creators, we’ll keep the videos live on YouTube in the U.S., feature them in the
YouTube Copyright Center as strong examples of fair use, and cover the cost of any copyright lawsuits brought against them.
We’re doing this because we recognize that creators can be intimidated by the DMCA’s counter notification process, and the potential for litigation that comes with it (for more background on the DMCA and copyright law see check out this
Copyright Basics video). In addition to protecting the individual creator, this program could, over time, create a “demo reel” that will help the YouTube community and copyright owners alike better understand what fair use looks like online and develop best practices as a community.
While we can’t offer legal protection to every video creator—or even every video that has a strong fair use defense—we’ll continue to resist legally unsupported DMCA takedowns as part of our normal processes. We believe even the small number of videos we are able to protect will make a positive impact on the entire YouTube ecosystem, ensuring YouTube remains a place where creativity and expression can be rewarded.
This comment has been removed by the author.
ReplyDeleteThis is a great start, however I believe a far more effective change would be to remove the immediate monetary reward for a false claim. As it stands now, the instant a claim is made, all ad money is diverted to the claimant and is never recoverable by the creator. This is further compounded by the fact appeals go to the claimant, not a 3rd party, for review and along with the conflict of interest can take weeks to a month to be addressed during which time the claimant is still monetizing the creator's work.
ReplyDeleteA simple change would be once a claim is made against a video to hold (escrow) all revenue until the dispute is resolved or one party fails to respond in the given time. After there is a resolution, the revenue is released to the correct party.
Last, a strike should not be issued while a DMCA counter notice is pending. It is far to easy in the current system for a claimant to make multiple claims at once and "carpet bomb" a channel to three strikes. I have personally been hit by Nintendo at least 3 times with strikes on multiple videos at once. Because Nintendo uses multiple accounts (Nintendo Music, Nintendo of America, etc) these look like independent violations. I have successfully counter noticed every claim but at the cost of not being able to upload new content or monetize my existing content because of the process heavily favors the claimant and punishes the creator for an appeal (had I just accepted their claim and ads, there would have never been a DMCA notice though I would give up my rights to my creation).
I whole-heartedly agree with Mike's comments and suggestions.
DeleteGreat summary of obvious flaws to address, Mike.
DeleteChannels with a long history of popular contribution should also be less vulnerable to strikes than those that just appear and start reposting the work of others.
I have been posting videos for a very long time on YouTube and have had many of my videos (news op-ed/commentary) either muted or out right removed over the policy,
DeleteIF YouTube is being sincere in this effort then we will see, I for one do not believe this, all of my videos I post under the fair use clause taken down; so starting today FIREFOXNEWS ONLINE™ Productions all videos we post will have the clause will open and close all videos before the opening title sequence and at the end of the ending credit sequence (even ones that have no title or end sequence), and if my videos continue to be targeted by YouTube then I will know this is total nonsense and that would be unfair, because to lie to we the users as well as the general public would be the worst thing one can do.
We the users will see.. I will be sharing this tonight on my Blog Talk Radio broadcast; let us all hope YouTube is being honest in this policy change, it would be unfortunate wouldn't it if they were not being so...
Incredibly great ideas Mike. The escrow in particular is very important to decrease the incentive for companies to make false claims.
DeleteMr von Lohman,
ReplyDeleteI enjoyed reading your blog post. The making of unjustified infringement claims is an issue of great concern to content producers and the measure announced appears to be a step in the right direction. I have described below two other ways in which YouTube could address this issue on a more systemic basis.
My videos have been subjected to repeated and unwarranted DMCA takedown requests. In some circumstances, when I have filed counter-notifications, the alleged rights-holder has allowed the initial DMCA takedown notification to lapse, only to make an identical takedown notification some months later. I would urge YouTube to look at ways of discouraging such obviously vexatious abuses of process on the part of claimants.
Another issue I would urge YouTube to address is the operation of the copyright strikes system. At present, a user may have copyright strikes recorded against their account (resulting in loss of access to key functionality or, it seems, even deletion of one's account) as a result of multiple takedown notices even when the YouTube user immediately files counter-notifications in response. This creates the possibility that YouTube users may have their accounts limited or even deleted when they have done nothing wrong and when they have taken every step available to them to respond to baseless claims of infringement. YouTube could address this problem by providing that, during the pendency of the notification/counter-notification process, no copyright strike be recorded against a YouTube user's account.
Kind regards
Hugh Atkin
youtube.com/hmatkin
I frequently experience the same problem of filing a dispute, the claimant waiting 30 days (while I have no monetiziation) letting their claim expire, only for the claimant to create a new claim starting the entire process over again.
DeleteHow does this affect people that do things like "Let's Plays" or general recording/uploading snippets of games and the like, I wonder?
ReplyDeleteIt depends on the extent to which the video is considered "transformative" of the game. Snippets are fairer than a start-to-finish playthrough (factor 3), and use with running critique is fairer than without.
DeleteI think this is a great step in the right direction. The internet is the new town square and using YouTube is one of the ways we have important dialogue.
ReplyDeleteAs big of a problem false DMCA takedowns are, there's a slight problem with the current implementation, I am not in the US, and this blocks me from seeing any videos in the program.
ReplyDeleteSpecifically, I cant see Jim Sterlings video, that's currently in this program.
I hope this block is temporary, and wont mean that in the future I will need a proxy to view videos from people like Jim Sterling, who seems to get a lot of these false takedown notices.
I think they're doing it first in the United States for two reasons. One is that because of its constitutional guarantee of freedom of speech, the "fair use" defense under United States copyright law has been construed more broadly than "fair dealing" defenses in other countries. Another is that YouTube is a U.S. company, and its counsel is more familiar with infringement defenses under U.S. law than under the laws of other countries.
DeleteThere's another problem this does not address, and that's YouTube proactively blocking videos from being monetized unless proof of commercial rights is provided - even if it's a fair use video. Every video I upload on my video game channel is blocked unless I can provide proof of commercial rights up front. Even when proving Fair Use, the employees at YouTube have the power to deny that at will with no appeal process. This has nothing to do with DMCA.
ReplyDeleteI agree.
DeleteThere is very little transparency as how YouTube's monetization approval system works.
For example, on my most popular video ("Will The Real Mitt Romney Please Stand Up"), monetization was allowed for a time, but was subsequently revoked. This appears to have followed the lodging of an infringement claim against the video, which claim I successfully challenged. The abandonment of the infringement claim notwithstanding, YouTube has maintained its revocation of monetization for several years, resulting in considerable lost revenue.
On another video of mine ("Ike to Obama - 60 Years of Campaign Ads"), against which no claim of infringement has ever been made, I provided written documentation of the licence I purchased to use the background production music. Monetization was rejected in respect of that video with no reasons or recourse ever having been given.
I have repeatedly attempted to correspond with YouTube's copyright team in relation to this and other videos, but have received non-responsive pro forma responses each time. It is a most unsatisfactory situation.
As someone who has faced numerous false takedowns and a few spurious strikes against my videos (which are works of criticism), this makes me feel hopeful, but it doesn't entirely solve the problem. YouTube should change the way that they handle copyright claims on larger channels (say, those with over 10,000 subscribers) by giving them the benefit of the doubt automatically. Instead of making content creators like myself wait 10 business days to have these spurious claims overthrown, make the supposed rights holders wait to have the content taken down (unless they file an actual lawsuit, obviously). To take that a step further, maybe stop automatic Content ID flagging altogether for these larger channels altogether, so that any copyright complaints against them have to be made by an actual human being.
ReplyDeleteYouTube's contentID system obviously gets a lot of hits every day, and parsing all of them by hand would be impossible for a team of any size, but there are a finite number of large channels, and it's very difficult to achieve a high subscriber count by reposting other people's content. I wouldn't ask you to help defend me in court if it did come to a lawsuit - just make it so that my channel's growth can't be instantly crippled by negligent lawyers or malicious legal attacks.
For the record, I'm using 10k as a benchmark because I have 14k subscribers at present, but if you needed a higher target number than that to make this feasible I'd completely understand. Somewhere up the youtube food chain, though, exceptions like this need to start being implemented.
The more I think about this system, the more it looks like to me, that for everyone outside the US, it makes false DMCA takedown notices very effective.
ReplyDeleteJim Sterling is in the program, so if it goes live like this, that means that any developer who dosnt like his videos, can greatly limit their reach, simply by sending a DMCA takedown notice.
Fully expecting it to autofail, but however that will block the video from being visible to anyone outside the US, and as such, still accomplishes much of what they want.
And this time, not in a temporary fasion.
Please correct me if I'm wrong on this, and I hope I am, and you arent just about to give them a way to make the censorship of criticism much more effective, outside the US.
so how rich and famous do you have to be to get this kind of protection? because i've been constantly harassed by media morons for posting NES gaming footage, so much to the point that I stopped uploading in 2010-2011.
ReplyDeleteOne thing you could try is starting your own website running MediaGoblin or some other web video publishing platform. Then post snippets on YouTube with a link in the description to a longer version on your website.
DeleteIn line with many of the comments here, I too am curious about the process Google employs for complaint management.
ReplyDeleteIt appears to me that Youtube/Google really need to implement a management process which does not involve too many people merely 'clicking' stuff and 'doing stuff' without any transparency or communication.
Their complaints and response process could be called flawed IF it was clearer what they were doing. At the moment it merely appears as if some automated system is put in place and rarely reviewed by a person.
While I appreciate what Google provides (and use a lot of their products) they are in danger of creating a mammoth wave of problems merely by refusing to address the 'human' in the equation.
"YouTube will now protect some of the best examples of fair use on YouTube by agreeing to defend them in court if necessary."
ReplyDeleteThat in itself is a huge statement. Interesting times! :) (grabs popcorn)
Good start, but as others have said a lot more needs to be done to fix this unfair system. I make videos which I would argue are 'fair use', but because they use copyright song recordings in their entirety (punning in a 'misheard lyrics' style the particular intonation and pronunciations of the original artist visually using found twitter and facebook profiles) they sit in a bit of a grey area. As a result, I've been uploading them according to the stipulations in the 'Ad-supported music' library. As well as meaning the claimant can fully monetise my videos, it's particularly galling when they subsequently decide to take the video down or block it worldwide without explanation or recourse. From my POV, there needs to be a mechanism for (a) revenue-sharing if you use original material extensively but nonetheless transformatively; (b) ensuring if a song appears in the ad-supported music database, a video that uses it cannot be subsequently sent a copyright strike and takedown notice when they have complied in good faith with YouTube policy; (c) copyright claimants should be required to provide a point of contact to the uploader - one of the main difficulties once a video is taken down or blocked is being able to track down precisely who in an organisation authorised the takedown and for what reason; they should be required to explain themselves to the upoader and respond to any reasonable appeal.
ReplyDeleteThe reality is, irrespective of this offer to protect legitimate "fair use" examples, the Youtube business model has always been about enabling copyright infringement, Google is essentially engaging in protectionism. It has actively lobbied to undermine copyright protections to benefit itself so don't be fooled into thinking they are the good guys, they are not. Google wants everything to be free, so it can continue to cream profits from the exploitation of media it doesn't own.
ReplyDeleteHere is a good potential answer to solve most of these problems. You might try reading this book from NOLO PRESS.
ReplyDeleteGetting Permission: How to License & Clear Copyrighted Materials Online & Off
http://www.amazon.com/Getting-Permission-License-Copyrighted-Materials/dp/1413319335/ref=sr_1_1?ie=UTF8&qid=1448025667&sr=8-1&keywords=getting+permission
This doesn't "solve most of these problems" at all. By definition, fair use means that no license or permission is needed. Presenting a book on getting permissions comes across to me as an attempt to undermine fair use.
DeleteSome of my personal/family videos are blocked in some countries and/or monetized by some "claimants", which in fact are intimidating and stealing ideas, works and creativity from fair users. I can point out INgrooves, The Orchard Music and SME which are continuously rejecting the disputes because some music (very poor quality) is heard in the background, so the claim will never be released. We are really concerned about ending up with a copyright strike if re-appeal... Could you please fix this issue? Thanks in advance. Adrian.
ReplyDelete