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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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Watching a “let’s play” video is static. The uploader has already made his choices in terms of experiencing the game, and, more importantly, the viewer is not actually playing the game: no controller, no choices. Thus, watching something as simple as a “let’s play” video, which is vastly less innovative than an Angry Joe review because it is a wholesale recording of entire portions of a game, cannot possibly go to the heart of the original game itself. The game must be played in order to experience that aspect.

This is not possible when simply watching a YouTube video.

Finally, the gameplay selected by Angry Joe illustrates and supports his reviews. These moments demonstrate something that is particularly great or laughably cringe-inducing about the particular video game.

Analogous to the quotations taken from the multiple works in New Era Publications, these selected moments are far from the heart of the work. A video game is not the sum of its selected flawed moments or triumphs. It is a mixture of these moments in addition to the countless hours of substance that connect them during gameplay, which are not being shown in the review. Hence, this factor favors Angry Joe too.

4. The Effect on the Value of the Copyrighted Work The final prong of the fair use analysis is “the effect of the use upon the potential market for or value of the copyrighted work.”100 The Supreme Court has articulated that the purpose of this prong is to evaluate the effect of market substitution for the markets the “creators of original works would in general develop or license others to develop.”101 Like how Google’s service enhanced the market for books in Google Books,102 video game reviews equally enhance the market for video games generally via an increase of visibility.103 Substitution of the original work simply cannot be accomplished because of the stark dichotomy 100 17 U.S.C. § 107 (2012).

101 Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 592–93 (1994).

102 See Authors Guild, Inc., 954 F. Supp. 2d 293 (2013).

103 Consistent with the theme of this Issue Brief, a search for “Skyrim review” generates approximately 712,000 results. YOUTUBE, https://www.youtube.com/ results?search_query=skyrim+review (last visited Feb. 28, 2015).

No. 1] DUKE LAW & TECHNOLOGY REVIEW 83 between playing a game and watching a game.104 Moreover, courts are typically sensitive to infringement that replaces the original work and obviates the need to purchase it altogether, which necessarily damages the bottom-line of the copyright holder.105 But this is not what is occurring with Angry Joe’s reviews, or any review.

“I’ve put more than sixty hours of gameplay into this thing. I’ve been playing it non-stop since its release.... And I’m here to tell you that we are in the midst of a championship franchise dynasty that keeps on giving.”106 Market substitution cannot be accomplished with criticism, which is at the core of every video game review. Criticism, negative or positive, facilitates visibility for the given market, especially in the digital age. It is so important in American jurisprudence and worthy of protection that is at the very core of §107 in plain language.107 If one subscribes to the old adage, “[n]o publicity is bad publicity,” then no review, negative or positive, can impair the marketability of a video game. Indeed, cult classic games that have received overwhelmingly negative reviews in the past often generate significant amounts of sales due to their increased visibility;

presumably because gamers want to see how truly bad the particular game really is.108 Thus, each and every factor of the fair use analysis favors protection for Angry Joe’s reviews under §107. But, in its current iteration, Content ID cannot identify even clear cases of fair use like Angry Joe’s reviews, despite their incredibly transformative and critical nature. Making matters worse, Angry Joe will continue to have his revenues frozen without being afforded any back-pay so long as Content ID continues in its current form. Content ID not only ignores unmistakable cases of fair use like Angry Joe’s reviews, but also unnecessarily implicates other areas of copyright law into the analysis as a result of its imprecision.

104 See discussion supra p. 17.

105 See, e.g., Campbell, 510 U.S. at 591 (“[W]hen a commercial use amounts to mere duplication of the entirety of an original, it clearly supersedes the objects of the original and serves as a market replacement for it, making it likely that cognizable market harm to the original will occur.” (internal quotation marks and citation removed)).

106 The Elder Scrolls, supra note 14.

107 17 U.S.C. § 107 (2012).

108 For example, a game known as Postal 2 is widely known as the worst-reviewed game of all time, but the game still maintains a cult following because it is so comically terrible: “Love ’em or hate ’em, Postal... [is] hard to forget and difficult to ignore... [it] comprise[s] a phenomenon within the game industry and a reminder that it’s still possible to survive and succeed without following the conventional rules for products and marketing.” POSTAL Franchise – Awards & Honors, RUNNING WITH SCISSORS, http://www.runningwithscissors.com/ main/?page=3 (last visited Feb. 28, 2015).

84 THE DEATH OF FAIR USE IN CYBERSPACE [Vol. 13 B. The Unforgiving Omnipresent The chief problem with Content ID is not in its automated scan function, able to duplicate the work of tens of thousands of employees, but in its incredibly broad scope that is unforgiving in its application. Angry Joe’s frustrations are a prime example of the apparent problems created by Content ID’s over breadth: “I’m getting flagged for music that is playing from the game in the background which is a part of the game....”109 Content ID eliminates the fair use analysis and ineffectively presumes to solve a problem by creating one with its imprecision and indiscriminate flagging.





Even assuming that publishers, developers, and music companies could continue to impose revenue freezing upon videos protected by fair use on YouTube, this does nothing to further the development of their market share in video games. Many prominent YouTube reviewers like Angry Joe operate their own separate websites where the videos are still available to viewers, regardless of their status on YouTube.110 Assuming YouTube does nothing to change the status quo, viewers looking for quality video game reviews may migrate to different websites that are independent of YouTube.

But there is an inherent incentive problem that will make any reversal of policy at YouTube difficult to effectuate. Simply put, YouTube is unlikely to revert back to a case-by-case copyright infringement system because it costs too much. Even for Google Inc., one hundred hours of video, every minute, is simply too much to process. Thus, the only solution is to reform Content ID to preserve YouTube’s current user audience.

For respectable game developers, Content ID ultimately hurts their profit margins because it reduces the visibility of their video games if reviewers are incentivized to stop reviewing their games. Major content uploaders are equally damaged. While it is true that Content ID makes copyright infringement claims easier to detect and file, Content ID overburdens a YouTube channel with vast amounts of illegitimate claims.

Time that was spent posting new content to the website will now be spent weeding through countless frivolous copyright infringement claims for videos likely protected by fair use, or videos that are licensed or endorsed by the developers themselves. In addition, the possibility of expeditious resolution is dismal: remember that only three appeals per channel at a time are allowed. This is simply unmanageable for a channel with hundreds, or even thousands, of videos to upkeep.

109 Youtube Copyright Disaster, supra note 1.

110 E.g., ANGRYJOESHOW http://angryjoeshow.com/ (last visited Feb. 28, 2015).

No. 1] DUKE LAW & TECHNOLOGY REVIEW 85 Individual uploaders like Angry Joe are adversely affected by Content ID too. If game developers and record labels become aggressively litigious at the end of the appeals process, uploaders will be forced to forfeit all future revenue to owners because uploaders are in a lesser bargaining position, whether fair use can be applied or not. Uploaders like Angry Joe are less likely to be able to afford adequate legal representation, or any representation for that matter, to litigate a single fair use claim on a video of which there can be many more to resolve.111 The costs of litigation vastly outweigh the revenues generated from a YouTube video. Eventually, users like Angry Joe will be incentivized to stop making new content entirely if YouTube does not reform their approach, leading to substantially depressed profits for YouTube. This is opposed to the spirit of copyright law, which encourages creativity.112 C. Solutions

1. Encouraging Reform of YouTube’s Copyright Infringement Process How could YouTube encourage its viewers to stay? YouTube currently enjoys a relative monopoly in the video-sharing sphere.113 Other sites like Dailymotion or Vimeo barely come close to matching the sheer volume of users that YouTube commands daily.114 So, there is still hope for YouTube to realize their mistake and reform their approach accordingly before content creators begin the virtual Exodus.

Starting at the most conservative option, YouTube could impose an institutionalized proportional licensing scheme between uploaders and the original copyright owners. Assuming fair use does not enter the analysis (although it should), uploaders like Angry Joe could share a proportion of their revenue equal to that of the copyrighted material that they are using in their monetized reviews. However, this ultimately creates a market for licensing works that do not have to be legally licensed, which encourages 111 Lawrence Lessig has taken up the mantle of defending the doctrine of fair use in cyberspace. The Harvard Law professor included a copyrighted song on his video “Open” which was subsequently identified by Content ID. The infringement action was maintained by the copyright owner. Lessig sued the copyright owner and settled out of court soon after. The copyright owner has vowed to “ensure that mistakes like this will not happen again” by supporting the fair use of their copyrighted works. See Sam Gutelle, Lawrence Lessig Settles ContentID Dispute Out of Court, TUBEFILTER (Feb. 28, 2014), http://www.tubefilter.com/2014/02/28/ lawrence-lessig-contentid-lawsuit-settle/.

112 See Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 577 (1994).

113 Statistics, YOUTUBE, http://www.youtube.com/yt/press/statistics.html (last visited Feb. 28, 2015).

114 Dailymotion boasts over 200 million users accessing their video players each month. See Stats & Figures, DAILYMOTION, http://press.dailymotion.com/us/ ?page_id=375 (last visited Feb. 28, 2015).

86 THE DEATH OF FAIR USE IN CYBERSPACE [Vol. 13 further abuse of copyright law. This option is akin to patching a scratch with a cast.

Another option is for YouTube to revert back to its pre-December 2013 model. Allowing uploaders like Angry Joe to enjoy the safe harbor of their affiliate company, and thereby enjoy relative immunity from Content ID, would certainly seem to solve some uploaders’ problems. By virtue of their affiliation, uploaders would be trusted to not infringe upon the copyright of others lest their affiliate “parent” suffer legal consequences.

Given the recent “reform” of this old approach, YouTube is not likely to reverse its policy anytime soon.115 The equitable (but not necessarily best) option is to increase in the number of allowable strikes on user channels, as well as the number of permitted appeals against copyright infringement claims that can be issued at once. Uploaders would be on equal footing with copyright holders on YouTube.116 But this option would continue to impact the bottom-line of game reviewers like Angry Joe who are making fair use of the copyrighted material, and so, is less than ideal because it ignores the underlying problem.

As already mentioned, YouTube could allow larger channels to file more appeals rather than the current limit of three. Extending this option to larger channels incentivizes the creation of new, original content by bigger content creators without overburdening the creator with an increase in potentially frivolous copyright infringement claims filed by Content ID.

YouTube should carefully select a conservative figure for appeals limits, lest too much power be given to the uploader at the expense of copyright owners: the key is to balance the scales, not to tip them in the other direction.

Ultimately, the best option is to incorporate an escrow account for each copyright infringement dispute because it is the most equitable. When infringement is identified by Content ID, the revenue that the offending video is generating could go into an escrow account that accumulates advertising revenue until the matter is resolved, instead of being frozen throughout the process. Once resolved, YouTube could award the revenue 115 There is a resounding lack of data on why YouTube changed its policies regarding affiliated channels. Though this is mere conjecture, the author posits that affiliated uploaders were perhaps infringing a substantial number of copyrights, thus subjecting them to YouTube’s ire.

116 If not uniformly, it at least makes sense for large uploaders like Gamespot and IGN. It does not make rational sense to allow only three appeals to be filed at one time when a channel can have thousands of videos. It makes business hard to conduct, and it makes large companies want to move away from YouTube as a platform for their videos.

No. 1] DUKE LAW & TECHNOLOGY REVIEW 87 in the escrow account to the rightful copyright owner, hopefully after a determination of fair use is made. YouTube could continue making its share of profits throughout the process, so long as the video remains live on the site. This is likely the lowest-cost option for every party involved.

2. Automating Fair Use with Content ID The problem with Content ID is not that it fails to detect copyright infringement, but that it detects legitimate uses of copyright too. So in order to shift the presumption of fair use to its rightful neutral position, one must ask the question: can YouTube automate a fair use analysis?



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