It should come as no surprise, considering the nature of the service YouTube offers, that YouTube has a longstanding history of combing through its users’ videos for possible copyright infringement. Recently, the search for copyrighted content has been streamlined, and the technology behind it, casting a wide net. New “Content ID” software has been implemented to automatically find these alleged violations and remove them from the site. However, this new advancement in detection might potentially create problems down the road for legitimate, non-infringing videos posted to the site.
Software May Create False Positives
As Kotaku recently reported, YouTube uses software called “Content ID” that scans videos automatically for copyrighted content. For example, if you upload a video of a birthday party, and a TV in the background happens to broadcast a commercial playing, say, a David Bowie song, YouTube’s software might detect the song and accuse you of copyright infringement. Not only that, YouTube also warns that things like live streaming and Hangouts On Air could be flagged and interrupted, even where the flag is incorrect. The below video explains how Content ID works.
As with any automated system or software program, the human element has been removed and replaced by an “all-knowing, all-seeing” algorithm. Yet, these algorithms cannot operate and make judgments with the subtle nuances of the human mind. An algorithm can only see data as black or white — infringing or original content — with no room for a grey area.
While this black-and-white view of copyright infringement may assist YouTube in its efforts to indemnify itself from litigation, its effect on users has been much more problematic. The penalties many YouTubers face as a result of being accused of infringement can range from simply having the video taken down to having to split advertising money with the content creator.
Fair Use May Not Be Recognized
In the world of intellectual property, traditional safety valves have been implemented with the purpose of balancing public interest and copyright policy. One such example is the “fair use” doctrine. Copyright law provides for a “fair use” exception where someone who uses portions of copyrighted content for uses such as critique, educational purposes, or artistic expression can do so without violating copyright laws. A fair use analysis, however, is a multi-factor test that is frequently argued in many court cases, and as to whether something qualifies as “fair use” is not always easily determinable. Regardless, YouTube’s automated software is not capable of performing this legal analysis and therefore may not be able to differ between an illegal streaming of Star Wars and a meaningful, intellectual critique of how Star Wars reflects the evils of dictatorship.
As a matter of protocol and a means of self-preservation, YouTube will automatically take down any video in the event another person or company claims that its intellectual property has been infringed. Similarly, these same measures are likely taken when its own software flags supposedly violating content. Moreover, as per its Terms of Service, YouTube reserves the right to remove any content it finds infringing without any form of prior notice and may even terminate a users access to YouTube if it concludes a user is a “repeat infringer.”
Is it Fair?
Many people believe that YouTube unfairly leans in favor of copyright owners by automatically assuming their claims are correct. While this approach to protecting copyrighted content may bode well for YouTube and its bottom-line, doing so opens the door to retaliatory conduct. For example, a restaurant that gets a bad review on YouTube could complain that its logo was used without permission just to get the review taken down. The same could be said for an unfavorable film review or a customer’s critique of a local business. Additionally, with greater room for error, it is more likely a video may be removed simply by mistake.
So what are the options available to a user who believes his/her video was improperly taken down when the content was created in “fair use”? The short answer is that you’re probably better off complying with the takedown demand. The long answer involves a complex and intimidating appeal known as a “counter notification order.” However, by filing a “counter notification order,” a user may subject him or herself to further legal penalties and the inevitable costs that go with maintaining innocence. Such a daunting means of exoneration is analogous to an individual pleading guilty to a misdemeanor he didn’t commit simply for lack of resources to prove innocence. Is this guilty-until-proven-innocent methodology truly how the Digital Millennium Copyright Act was intended to be enforced, or has public interest once again taken a backseat to corporate greed?
Challenging YouTube’s Decisions
In addition to the complex counter notification process, if a YouTube user disputes an infringement claim with YouTube and is found to be incorrect, YouTube maintains the right to terminate the account at its discretion. For accounts with many subscribers and significant revenue, suspension can be a severe penalty, leaving ample time for competitors to take advantage of the open market space. All of this, mind you, could be the direct result of challenging the “false positives” that YouTube’s new intellectual property software could generate.
Like the analysis behind the “fair use” doctrine, many copyright issues present a similar balancing test, between protecting the content creator, while trying not to stifle invention, innovation, and free speech. When these legal determinations are left to automated technology, the enforcement system could run amuck, creating imbalance in the system and an unfair prejudice in favor of copyright holders with little means of recourse.
Still, the question remains, in a world in which we all share data at the touch of a button, how does one protect themselves against the pitfalls and nuances of the digital age? As a simple rule of thumb, if you intend to use someone else’s information and are concerned about whether you can do so legally, the safest option is to obtain permission from the content owner. The next step is seeking advice from professionals with experience and training in the area of intellectual property.
Have you been wrongly accused of copyright infringement, or has your content been illegally copied?
Cynthia Conlin & Associates are experienced copyright infringement lawyers who may be able to help you with your own copyright infringement questions. Contact our office by calling 407-965-5519.