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«THE DEATH OF FAIR USE IN CYBERSPACE: YOUTUBE AND THE PROBLEM WITH CONTENT ID TAYLOR B. BARTHOLOMEW† ABSTRACT YouTube has grown exponentially over ...»

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THE DEATH OF FAIR USE IN CYBERSPACE:

YOUTUBE AND THE PROBLEM WITH

CONTENT ID

TAYLOR B. BARTHOLOMEW†

ABSTRACT

YouTube has grown exponentially over the past several years.

With that growth came unprecedented levels of copyright

infringement by uploaders on the site, forcing YouTube’s parent company, Google Inc., to introduce a new technology known as Content ID. This tool allows YouTube to automatically scan and identify potential cases of copyright infringement on an unparalleled scale. However, Content ID is overbroad in its identification of copyright infringement, often singling out legitimate uses of content. Every potential case of copyright infringement identified by Content ID triggers an automatic copyright claim on behalf of the copyright holder on YouTube and subsequently freezes all revenue streams, for all parties, regardless of the legitimacy of the underlying claim. Using the plight of one video game reviewer known as “Angry Joe” as a paradigmatic example of the problems that Content ID can create, this Issue Brief argues that in its present form, Content ID has had disastrous consequences for the doctrine of fair use, YouTube itself, and ultimately, the very spirit of copyright law. By shifting the neutral presumption accompanied with fair use against the uploader, Content ID effectively overrides judicial precedent.

INTRODUCTION

On December 11, 2013, a well-known video game reviewer known as “Angry Joe” uploaded a video entitled, “Youtube Copyright Disaster!

Angry Rant.”1 Angry Joe’s usual presentation involves a great deal of † Duke University School of Law, J.D. expected 2015; Content Editor for the Duke Law & Technology Review, Graduated Magna Cum Laude from Stony Brook University with a B.A. in History. The author is an avid life-long gamer. He would like to take this opportunity to thank both his fiancée Veronica Badway for her invaluable and seemingly unending support, and his colleague TG R. Falcon for all of his help in the development of this thesis.

1 AngryJoeShow, Youtube Copyright Disaster! Angry Rant, YOUTUBE (Dec. 11, 2013), available at http://www.youtube.com/watch?v=JQfHdasuWtI [hereinafter Youtube Copyright Disaster].

No. 1] DUKE LAW & TECHNOLOGY REVIEW 67 theatrics, including the use of visual effects, colorful images, and insightful commentary. But in this video, gone were all of those qualities, except for his most distinguished one. Instead of directing his anger towards the flaws of a particular video game, Angry Joe directed his attention toward YouTube itself.2 In the video, Angry Joe revealed that sixty-two of his videos had been “flagged” for alleged copyright infringement, instantly halting the income that he was deriving from them.3 With over five hundred videos on his channel,4 Angry Joe’s livelihood depends upon his production of video game reviews on YouTube.5 Why were Angry Joe’s videos flagged?

Angry Joe had come face-to-face with YouTube’s new “Content ID” technology. Content ID was created in response to a mass proliferation of videos on YouTube, the upload of which had grown so large that a caseby-case check for copyright infringement for each video on the website was simply not feasible.6 Content ID is made up of a database composed of both audio and video to which copyright holders on YouTube contribute.

Content ID compares the information in YouTube’s database with the audio and video that is contained in newly uploaded user videos. If a match is found, the system automatically files7 a copyright infringement claim on behalf of a purported copyright owner against the uploader. In each instance, this filing triggers an automatic freeze of advertisement revenue 2 Id.

3 Monetization is the process by which uploaders of original content can gather revenue on YouTube. This is accomplished when the user opts to strategically place advertisements at the beginning of the uploaded video in exchange for a small revenue payment. See Video Monetization Criteria, GOOGLE, https://support.

google.com/youtube/answer/97527?hl=en&ref_topic=1115890 (last visited Feb. 28, 2015). A user like Angry Joe earns as much as one hundred dollars for every fiftythousand views that a video accumulates; Angry Joe has over five hundred videos,

most with millions of views. See Owen Good, YouTube’s Copyright Crackdown:

Everything You Need To Know, KOTAKU (Dec. 18, 2013), http://kotaku.com/ youtubes-copyright-crackdown-simple-answers-to-compli-1485999937.

4 AngryJoeShow, The Angry Joe Show, YOUTUBE (Oct. 3, 2008), https://www.

youtube.com/user/AngryJoeShow/featured [hereinafter The Angry Joe Show].

5 Id.

6 Over one hundred hours of content is uploaded onto YouTube every minute. See YouTube Help, YouTube Content ID, YOUTUBE (Sep. 28, 2010), https://www.

youtube.com/watch?v=9g2U12SsRns.

7 As used throughout this Issue Brief, “filing” refers to the initiation of a websitedriven copyright infringement process and associated responses on YouTube.

68 THE DEATH OF FAIR USE IN CYBERSPACE [Vol. 13 that the uploader was earning from the disputed video; the freeze occurs without the uploader having the chance to defend himself.8 Content ID should be the perfect solution for enforcing copyright law in the digital age. But, the system, widely applied as of December 2013, has proven to be problematic in its application on YouTube by undermining the doctrine of fair use through indiscriminate flagging of legitimate uses of original content.9 Put simply, Content ID is blatantly hostile to users’ interests because it shifts the neutral presumption of fair use against them. If reform of Content ID is not effectuated, YouTube risks losing a substantial portion of its user-base, and hence, its main source of content.





Part I of this Issue Brief explains how Content ID works, describes the liability standard for YouTube in accordance with the Digital Millennium Copyright Act (DMCA), and relays the elements of fair use pursuant to § 107 of the Copyright Act.10 Part II explains the plight of Angry Joe to demonstrate how Content ID subverts fair use, discourages criticism, and stifles creativity on YouTube.11 8 [Letter from YouTube] Managing Rights and Content ID on YouTube, REDDIT (Mar. 18, 2014), http://www.reddit.com/r/letsplay/comments/20qdkx/letter_from _youtube_managing_rights_and_content/ [hereinafter Letter from YouTube].

9 It should be noted that Content ID has been live on the website for years, but was just recently applied to “managed” channels, generating this current controversy.

These channels were under a sort of safe harbor from copyright infringement claims by virtue of being managed a larger media entity, called a “multi-channel network” (MCN), which took responsibility for any copyright infringement by content creators within its network. Users like Angry Joe could be managed by an MCN and were not subject to Content ID scrutiny until December of 2013, when YouTube changed its user policy, causing widespread outcry in the gaming community in particular. MCNs “offer assistance in areas such as product, programming, funding, cross-promotion, partner management, digital rights management, monetization/sales, and/or audience development.” Multi-Channel Networks 101, YOUTUBE, http://www.youtube.com/yt/creators/mcns.html (last visited Feb. 28, 2015).

10 The author assumes that the readers of this Issue Brief are already familiar with the basic functionality of YouTube. For an excellent Note that details this functionality, as well as the history of the website itself, see Kurt Hunt, Note, Copyright and YouTube: Pirate’s Playground or Fair Use Forum?, 14 MICH.

TELECOMM. & TECH. L. REV. 197 (2007).

11 See Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 577 (1994) (noting that fair use avoids creative stifling associated with rigid application of the copyright statute).

No. 1] DUKE LAW & TECHNOLOGY REVIEW 69

I. BACKGROUND

A. Content ID So, how does Content ID work? By its own description, YouTube

explains:

Copyright holders12 give us copies of their audio recordings and videos that they want us to look for on YouTube. We call these copies “reference files” and put these files in a database. This database contains over 3 million files, from pop songs to full length movies.

Every time you upload a video to YouTube, we quickly compare it to every reference file in our entire database, looking for a match.

Content ID can identify audio matches, video matches, partial matches, and can even identify a match when one video’s quality is worse than the other. Each time Content ID finds a match, we do what the copyright holder asks us to do with that video; either block it, leave it up, or even start making money from it. With over twenty-four hours of video uploaded to YouTube every minute, Content ID works around the clock and scans over one hundred years of video every day. It’s like 36,000 people staring, without blinking, at 36,000 monitors: all day, every day. Now, copyright management is easy and accessible for everyone.13 Although YouTube claims that Content ID ushers in a new golden age of creativity, problems have already begun to surface.

While Content ID can recognize copyrighted material, it cannot recognize whether that material has been licensed for use.14 This is especially important in the context of the video game industry, where a game developer may have contractual understandings with music studios and publishers for the inclusion of their work in a video game. Oftentimes, bundled with these licensing regimes is the developer’s right to allow the creation of derivative works (including works of criticism) from the original video game by fans, enthusiasts, and gamers alike.15 Content ID cannot 12 Qualifying for Content ID, YOUTUBE, https://support.google.com/youtube/ answer/1311402?hl=en (last visited Feb. 28, 2015) (“Applicants must be able to provide evidence of the copyrighted content for which they control exclusive rights.

Content ID will match a user’s reference content against every upload to YouTube.

... Content ID applicants may be rejected if other tools better suit their needs.”).

13 YouTube Help, supra note 6.

14 AngryJoeShow, The Elder Scrolls V: Skyrim Angry Review, YOUTUBE (Nov. 23, 2011), http://www.youtube.com/watch?v=54XwUi7Hc0k [hereinafter The Elder Scrolls].

15 Licensing is very inconsistent in the video game sphere. Companies like Electronic Arts (“EA”) and Sony Online Entertainment (“SOE”) allow full fair use of their content on YouTube, even if it’s monetized, whereas companies like 70 THE DEATH OF FAIR USE IN CYBERSPACE [Vol. 13 recognize these subtle and often complicated licensing regimes, resulting in a substantial impediment to a functioning copyright system on the internet.16 By automatically flagging copyright infringement en masse with Content ID, YouTube affords copyright owners an automatic response to the allegedly unauthorized use of their content by uploaders. Advertising revenue generated from the allegedly infringing video as part of YouTube’s monetization program is automatically frozen until the video is either removed from YouTube at the conclusion of a lengthy appeals process or the copyright owner voluntarily relinquishes the infringement claim.17 In the wake of the full-scale implementation of Content ID, many video game developers have released frivolous claims on reviews that they never would have filed in the first place, suggesting that Content ID is over-inclusive in its current application.18 Finally, while the process of automating copyright infringement recognition is (crudely) realized with Content ID, the process of automating fair use recognition is not implemented at all on YouTube. So long as Content ID facilitates a vast increase of copyright infringement claims on YouTube while simultaneously failing to effectuate the doctrine of fair use, Content ID will need a significant overhaul as a result of the many inequities that it creates.

B. The Digital Millennium Copyright Act

1. YouTube’s Safe Harbor: § 512(c) Under the DMCA, an Online Service Provider (OSP) like YouTube enjoys immunity from liability of copyright infringement carried out by its

users so long as it:

(A)(i) does not have actual knowledge that the material or an activity using the material on the system or network is infringing;

(ii) in the absence of such actual knowledge, is not aware of facts or circumstances from which infringing activity is apparent; or (iii) upon obtaining such knowledge or awareness, acts expeditiously to remove, or disable access to, the material;

Bungie and Capcom do not allow monetized use of their content at all. Alloy Seven, How to Monetize Gaming Videos Legally, YOUTUBE (Feb. 6, 2013), https://www.youtube.com/playlist?list=PLzwQfBinnPoq-ZNgtySx9c4EoYfQlO wfs.

16 The Elder Scrolls, supra note 14.

17 Dispute a Content ID Claim, GOOGLE, https://support.google.com/youtube/ answer/2797454?hl=en (last visited Feb. 28, 2015).

18 Youtube Copyright Disaster, supra note 1.



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