YouTube, Where's the Fair Use?
by Jake Krajewski | published May. 5th, 2016
YouTube has never been particularly fair to content creators when it comes to the topic of Fair Use, but their broken copyright claims system has become so overly abused that content creators have reached a breaking point. In a video entitled "Where's the Fair Use?," Doug Walker (also known as The Nostalgia Critic) expresses in detail his distaste for the current state of YouTube's copyright claim system.
With the help of fellow YouTubers and movie critics I Hate Everything (whose channel was recently deleted and then reinstated after having false strikes filed against him by an unknown source) and Your Movie Sucks, Walker details the differences between copyright claims and strikes, how they affect one's channel, and monetization and the processes involved in battling these false claims. The enormous flaws in YouTube's claim system make this entire process long and exhausting.
First and foremost, copyright claims and strikes hit immediately. As soon as a claim is filed, it takes effect. There is no grace period for an appeal and no delay during which an actual person reviews the claim. The entire system is completely automated. Because of this, any company can go to a channel, pick out three videos to hit with strikes, and have the channel instantly taken down. The channel will remain deleted until the three strikes are repealed, which leads into the second way in which the system is broken.
Acquiring a strike revokes your ability to appeal claims.
Strikes and claims take a ludicrous amount of time to repeal. All a person can do is file an appeal, which can take up to 30 days to be responded to. Upon filing an appeal, the claimant can either remove the claim or choose to issue a takedown notice. The latter counts as a strike, which cripples channels severely. Additionally, a person can only file three appeals at a time, regardless of how many claims or strikes are filed at the time. In fact, acquiring a strike revokes your ability to appeal claims. For people that use YouTube as a means of making a living, this threatens their livelihoods. Companies and movie creators (like Derek Savage) are abusing YouTube's system to censor critics and steal money by misappropriating the monetization rights to videos.
For people that use YouTube as a means of making a living, this threatens their livelihoods.
This is another issue; if a claimant decides to claim the monetization rights to a video, they can do two things. If the video is already monetized, they steal all the revenue from the video until the claim is taken down. If the video is not monetized, they can force the video to become monetized (meaning that a video without ads will be forced to show ads) and take all of that revenue. Even if the claim is found to be false, the claimant gets to keep all of the money. This feature in particular has become heavily abused, to the point that one company is filing deliberately fake and fraudulent copyright claims and stating that they are doing so on behalf of people that they do not represent.
Even if the claim is found to be false, the claimant gets to keep all of the money.
The worst part of this, however, is the fact that there are zero penalties against companies that file fake, fraudulent, or incorrect claims and strikes against videos. They are able to steal money and censor critics with no repercussions, so there is absolutely no reason for them not to attack and steal as much as they can. Creators have no power and YouTube refuses to do anything.
This is only scratching the surface of the utterly appalling state of the YouTube copyright claims system. However, it isn't just movie reviewers who are standing up against YouTube's wretched system. Countless creators of varying fame and genre have been uploading videos on the subject, including Cr1TiKaL, The Fiery Joker, GradeAUnderA, Jimquisition, Anime America, Mr. Enter and Team Four Star (whose channel was also deleted briefly) to name a small handful. The hashtag "#WTFU," which stands for "Where's The Fair Use," has also begun cropping up all over Twitter and Facebook.
The entire community is in an uproar over these outrageous practices by YouTube. In fact, companies aren't the only abusers of the copyright system. Other YouTubers have been known to file false claims, as well. The Fine Bros are one of the most notable, flagging videos as copyright infringement for stealing their "format." In the wake of the train wreck that was ReactWorld, one would hope that they would learn from their mistakes. However, more sensitive YouTubers who can't stand criticism are also abusing the copyright strike system. Back in December, Pyrocynical released videos criticizing a couple of different prank channels on YouTube. Strikes were issued on two of those videos within mere minutes of each other by two of the criticized prank channels. This further goes to show how absolutely anyone can abuse the system just because a video offends them or makes them look bad, no matter how true the points made in the video are.
Loret Steinberg, an associate professor at the RIT College of Imaging Arts and Science, has experience with the United States copyright system and commented on the issue. She stated that there are four major guidelines when differentiating between Fair Use and copyright infringement purpose and character of the use of the work, the nature of the copyrighted work, the amount and substantiality of the portion taken, and the effect of the use on the potential market. YouTubers argue that the character of their use is for review, criticism or information. The nature of the work is normally a piece of media, such as a movie or video game, that was created to bring a profit to its creator. Where the argument becomes muddled is in the last two guidelines; movie critics will often show clips from the movie they are reviewing, and their criticism may lessen the sales of that movie. It's a very similar situation for anyone who reviews someone else's work, no matter the medium.
Steinberg commented that the way these critics operate creates a legal grey area. The companies that make these movies that the critics review "have every right" to lay monetization claim to these videos because they feature footage from their copyrighted work. Whether or not the videos are within Fair Use is up for debate. "[Movie companies] could be concerned about the substance that is used in the review. Would it include really important parts of that film?" While reviewers claim their videos are sufficiently transformative by using only short clips and by voicing over the clips they do show, Steinberg says that this is not enough. The new piece should be "totally unrecognizable from the original." All the same, there are still channels that get copyright strikes even if they don't use any footage. Brad Jones (a.k.a. the Cinema Snob) has a series called "Midnight Screenings," in which he and some friends talk about a movie they've just seen in the parking lot afterwards. These videos feature no audio or visual clips from the movie, but even they have been hit with copyright claims.
Now, with everything that's clearly wrong with YouTube, what can be done? As Cr1TiKaL mentions in his video (linked above), moving to a different platform is an extraordinarily unlikely option. Google runs YouTube at a loss. They are actively losing money running the site. If Google can't find a way to make a platform like YouTube profitable, it's highly unlikely that any other company or independent developer would be able to provide a better platform. Even if they did, it simply wouldn't be able to catch up to the immense popularity of YouTube, meaning that creators wouldn't be able to make enough money off of their own videos to survive.
The Nostalgia Critic suggests a few minor changes to the way claims and strikes are handled. Unlimited appeals and the idea of placing ad revenue in a side account during a claim dispute (after which the revenue would be given to the winner) are among a few suggested alterations. While this still would not be a perfect system, it would be light-years ahead of the current state of affairs and much more feasible. As wonderful as a discontinuation of YouTube's utterly automated system in exchange for a more personal experience would be, the site simply does not have the resources. As was mentioned earlier, YouTube already runs at a loss. Additionally, trying to punish companies that file false claims would be extremely legally messy and might lose YouTube some of its most affluent supporters.
At the very least, the movement is taking tentative steps forward. Earlier this year, the government asked the people for feedback on the safe harbor provisions of Digital Millennium Copyright Act, which are part of the broken foundation that YouTube's copyright system is based upon. What will come from this movement remains to be seen, but it will hopefully result in a better, fairer and more creator-friendly YouTube.