You can say those cases are frivolous, but it hasn't stopped Robin Thicke from being ordered to pay out millions. Fair use doesn't always prevail in court or even within youtube when it should.
There is a chilling effect on creativity when this happens. There will be fewer people willing to risk a massive financial burden by creating something independently if sounding too similar to something else could get you sued into bankruptcy by a group that already has essentially endless wealth.
Currently, the industry doesn't even want the burden of dealing with the court system. They put pressure on youtube under threat of legal action to act on their behalf for free. It's the same with ISPs. The DMCA gave ISPs legal immunity from acts of copyright infringement committed by their subscribers, but only under very specific and poorly defined circumstances.
Right now, they are fighting in courts against half a dozen different ISPs to try to define that wording so that they can make unsubstantiated accusations against internet users and if an ISP doesn't cut the accused individual off from their service forever, the ISP can be sued for billions. No court case or evidence proving that the subscriber has done anything will be needed. If they say someone did it often enough, their service has to be cut off forever. Because some users don't have many options for internet access getting permanently kicked off an ISP can mean getting cut off from the internet entirely, but court cases are time consuming for the media industry so they are willing to let that happen if it means they can make your ISP into their free copyright police. So far, in the courts the media industry is winning.
Correct, perhaps that is arguable, especially given the grey area this is all taking place in. I was speaking to the reality that if you're a popular YouTuber, and your content gets striked in this way, all revenues from that video go to them instead of you. This is especially terrible for music related content creators, fair use essentially does not exist for them.
YouTube does, in fact, have a program to defend fair use, and they reject DMCA notices in those cases. But it's expensive and they can't do it in every case. Lawyers are expensive.
YouTube gets sued enough by idiots who think the DMCA safe harbor doesn't apply for whatever reason.
Anyway, I disagree that YouTube doesn't need the safe harbor. If they had to pay a lawyer for a minute of time for every DMCA request received, they'd lose money.
YouTube did innovate. They created a system for the largest content creators which automated complaints and created a special appeals process, which discourages DMCA complaints. They also placed protections on this program and ban people from it that submit too many false complaints.
I wonder if a larger Youtuber, someone who makes several thousand per video (advertising, Patreon, etc.), could sue (and win) for the takedown of a fair use video. If there was precedent for being liable for frivolous takedown claims, that might serve as a deterrent to additional frivolous takedowns.
But there's the law and then there's a company's ability to make another's life miserable by way of lawsuit. So even if you're right, getting sued by Disney, Warner Brothers, Universal and every other player in the media world on a regular basis will cost you a staggering amount of time and money and will generate a lot of bad press. Just taking content down on the other hand costs you very little.
And since copyright and fair use law is very much decided on a case-by-case basis, there wouldn't be the one big victory which ensures they're being left alone - just an endless string of costly litigation.
Youtube isn't a public interest group or a civil rights movement that's in it for a legal or ideological goal. They're a business looking to make money. I know it sucks for the creators, but I think that's what it comes down to.
P2P never really had a YouTube-like creator scene; almost everyone using P2P was using it to download movies for free. YouTube was almost the same way at first until YouTube got spooked by the (arguably baseless) Viacom lawsuit and decided to adopt proactive copyright filtering.
Speaking of litigation, nobody's been sued for watching YouTube. People got sued for BitTorrent traffic all the time; up to and including dedicated settlement extortion operations (e.g. Prenda Law). This is a third role of YouTube we don't really consider: they handle all the stupid copyright stuff so that users don't have to. P2P inherently shoves all the liability[0] onto the users because you dox yourself every time you use it. Imagine, say, someone suing individual P2P users to try and shut down, say, a SSSniperWolf[1] video.
If you took YouTube away today, you'd have creators moving to Nebula or Floatplane, because there's still money in that. There really isn't money in PeerTube. Monetization is the thing that really put YouTube on the map, not free distribution.
Though, to be clear, video distribution is still hilariously expensive. Google considers YouTube to be profitable and has done so for many years, but that is almost certainly because YouTube gets to use Google's favorable peering arrangements with last-mile ISPs. These same ISPs also did all sorts of questionable things to throttle or block BitTorrent traffic back in the day, I imagine they'd come up with new attacks on PeerTube traffic today. The underlying problem is that we don't have any common-carrier regulation on ISPs, so they price traffic based on "value" - i.e. how much they can double-bill the sender of the packets - rather than the cost of that traffic.
If you want a viable YouTube competitor, you want net neutrality regulation.
[0] Ok, before you cite a Ninth Circuit opinion arguing that mere downloading still has liability or something, I'm not saying that you CAN'T EVER be sued for watching YouTube, only that you'd have to sue Google first, and they have big pockets.
[1] Notorious "reaction streamer" that doesn't actually do any reacting in her videos made up of entirely other people's YouTube uploads. Recently infamous for tracking down JacksFilms' physical location and bragging about it on Instagram.
I don't believe this is true. Every legitimate YouTube fair use case that I've seen go to court has gone in favor of the fair user.
The biggest name one so far is the H3H3 trial.[1] One that looks to be settled soon is Akilah Hughes suing Carl Benjamin (Sargon of Akkad), where all that Benjamin does is edit together two of Hughes videos with the only original addition being a new title. This is almost certainly going to go in favor of Sargon, yet YouTube's algorithms turned up to the nth degree would almost certainly have blocked it.[2]
If you go outside of YouTube, fair use law in the United States is very broad. Just look at what Richard Prince does with others' art. [3]
The problem is that you need to fight for that fair use in the court with huge amounts of money.
When was the last time you've seen an individual or small company win a fair use case against YouTubes abusive algorithm? Because the created content gets taken down constantly even if its fair use. The algorithm doesn't care... and neither do giant copyright holding corporations that issue automated frivolous takedowns.
A healthy dose of legal realism here: doing something that is technically within the scope of the law as written does not fully remove the risk and expense of getting sued over it. The process is that you can still get sued by Viacom for a billion dollars, spend a ton of money on lawyers and discovery over many years, and wind up making the entirely reasonable call of implementing ContentID or the like and settling. You do more than you're legally obligated to do on behalf of copyright owners, but whatever, the people uploading videos bear the brunt of this cost.
Here is what I see happening. Companies stop worrying about the copyright law. Why should they? With youtube they have effectively proved that they can shut down any video they like without any negative repercussions. And now that piracy is way down due to streaming services, what do they gain by maintaining their copyright?
We've extended copyright so long that there isn't even a reason to extend it further. And now, the mechanisms to enforce copyright are so biased towards large corporations that, even without infringing, they can make your life a living hell if you cross them.
Don't believe me? Look at just about any youtube content producer. Basically all of them have stories about their content being pulled because some mega corp hears them mention something that might be theirs.
Maybe in the courts, but you can get your youtube channel shutdown or even be permanently kicked off your ISP (and the internet, unless you have more than one option) based on nothing but unsubstantiated accusations that you've violated copyright
The real problem with Youtube is that it remains to be the biggest copyright infringer on earth. There is almost no record and song, no matter how obscure, that you cannot find on Youtube, and nothing prevents you from downloading this content. I'm not judging this, just stating the facts, so don't downvote me for it. Who doesn't enjoy direct access to a gigantic music collection without paying? Everybody likes it and uses it.
Somehow Youtube gets away with that, because they are a major US company. If you'd find the same amount of content on a small foreign company's servers, the FBI would crack down on it in no time using all international law available.
The current extreme bias in the complaint system will not change, because it is Youtube's legal insurance. They need to be able to claim they've done everything they can fighting piracy. In reality, piracy is and always has been one of the major uses of Youtube in addition to the privately produced content.
As a result of this, Youtube is double unfair. It enables massive piracy and at the same time severely punishes original content producers in favor of predatory and sometimes plain fraudulent companies filing bogus copyright complaints. It's a systemic problem that IMHO could only be solved by drastic law reforms.
Unfortunately the popular sites like youtube have not-exactly-DMCA arrangements with large copyright holders, because otherwise they would (still) be indefinitely in court and spending millions upon millions (regardless of the merit of the cases).
DMCA replaces the scary letters. YouTube only responsibility is to collect claims and counterclaims. Common YouTubers can just accept the claim and mute content. Youtuber wanting a fight or that know the other party would never risk their frivolous challenge to go to court with the threat of perjury hanging on their head have a right to counterclaim and put the ball in the other party field.
YouTube instead decide to act as jury and will allow claimant to counter the counterclaim, and here lies the crux of the issue.
YouTube isn't protecting poor youtubers anymore than what DMCA already allows; YouTube is instead actively removing youtuber right to challenge the claim, putting all the power in the claimant, far above what DMCA mandates or requires.
And that decision to act as jury and judge and final unappealable authority in the claim process lies squarely on YouTube shoulders.
Ultimately I think the YT process leaves the door open for legal action by the creator against the claimant.
Presumably most don't bother, because these are big big companies. They can feel secure in their bad faith claims, auto-rejection of appeals, and general abuse of the system to garnish monetization proceeds.
That's a dangerous oversimplification. Read about the billion-dollar Viacom / YouTube lawsuit, and how it was anything but a sure thing that YouTube would win, despite their DMCA protections.
YouTube seems to be taking the brunt of the criticism when it's the repercussions of copyright infringement lawsuits that are the problem.
I'm sure YouTube would love to be more lenient. If they could say "anything goes" they'd be thrilled, but we know they cannot because of the LAWS that are protecting IP owners.
IP should be protected, but to what extent?
And the bigger problem is the amount, and rate, of which content being produced threatens everyone's ability to do anything!
Try naming a business. NOTHING is available. If you want to run a competing business in a saturated market, the naming options are almost non-existent, especially if you want to name your company something that embodies what your business does.
Music is having this problem too. When you can take a few stanzas and say you OWN that music, could someone not just use a computer to generate every possible sequence of notes, slap a copyright on it, and own all future music?
Photography, video, games, puzzles, speeches, books..... it's all about to hit a brick wall if we can't be more lenient with IP.
In my opinion, complete works should be awarded a copyright, but sub-sections of works should not.
IMO the biggest issue with all this is the lack of a suitable appeals process, handled by humans.
Would such a process be expensive? Yes, but you can't have it both ways, enabling copyright holders to lodge spurious claims at will, and not allow content creators - who the entire platform is built on! - to disclaim them.
Would such a process be expensive? Yes, of course - but YouTube can very well afford it.
This is the worst part of this whole copyright mess, defenders of youtube constantly preach the "They have to do this", "they are forced to do this" etc. defense.
However the way Youtube handles dmca and copyright claims means that if you are a smaller musician, a big corporation can just steal your music and profit off it. Good luck if you don't live in the US and don't have the money to take back what is yours. From that point you can basically just hope that you make the news so that a human at Google looks into the mess they created for once.
Just leaving a reminder of how infuriation Youtube copyright handling can become even for larger channels: Back in 2018 TheFatRat got his music claimed by some randoms and Youtube just gave it to them on a silver platter https://www.youtube.com/watch?v=z4AeoAWGJBw . TheFatRat was a popular youtuber even back then, and even for him the process was hard. Now imagine how that situation would have played out for the average musician.
When people talk about "protecting the musicians" they typically only mean the richest musicians, the top few % and the largest record labels. No one cares about regular musicians.
The same logic also means that dmca claims can be easily weaponized by any entity as long as they choose their targets strategically (or own enough money to tank the situation in which a target fights back, but even then that can create more damage for the target).
There is a chilling effect on creativity when this happens. There will be fewer people willing to risk a massive financial burden by creating something independently if sounding too similar to something else could get you sued into bankruptcy by a group that already has essentially endless wealth.
Currently, the industry doesn't even want the burden of dealing with the court system. They put pressure on youtube under threat of legal action to act on their behalf for free. It's the same with ISPs. The DMCA gave ISPs legal immunity from acts of copyright infringement committed by their subscribers, but only under very specific and poorly defined circumstances.
Right now, they are fighting in courts against half a dozen different ISPs to try to define that wording so that they can make unsubstantiated accusations against internet users and if an ISP doesn't cut the accused individual off from their service forever, the ISP can be sued for billions. No court case or evidence proving that the subscriber has done anything will be needed. If they say someone did it often enough, their service has to be cut off forever. Because some users don't have many options for internet access getting permanently kicked off an ISP can mean getting cut off from the internet entirely, but court cases are time consuming for the media industry so they are willing to let that happen if it means they can make your ISP into their free copyright police. So far, in the courts the media industry is winning.
reply