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Duration:12:18
Uploaded:2019-02-01
Last sync:2019-02-01 14:10
The internet destroyed copyright law and we have not re-built. Instead of laws and courts we now have claims and disputes. YouTube in particular has placed itself in the middle of extra-legal arbitrations over what is and is not fair use, false claims of scammers, and whether it's OK to take different action based on opinions that are entirely external to copyright like...is this video nice or mean.

Learn more about Fair Use here: https://www.youtube.com/watch?v=Q_9O8J9skL0

And more about Article 13 in the EU here: https://www.wired.co.uk/article/what-is-article-13-article-11-european-directive-on-copyright-explained-meme-ban


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 (00:00) to (02:00) Good morning John! 


I watched your video on Tuesday, which is good because you included a bunch of clips of hockey and soccer and football games that you did not own and one of the companies that owned some of those clips decided to block the video from being viewed on YouTube. So it feels like this might be a good time for an educational video on the very weird state of copyright and online media in two thousand nine...teen. 19. 

Before the internet, piracy was excruciatingly slow. We did it of course — we recorded mix-tapes from the radio and traded fan-subbed VHS' of anime (yes, that's actually something I did). But the internet, first through Napster, made it very easy to instantly distribute other people's property. It was so easy! And it didn't feel wrong. Songs were already free on the radio and everyone I knew was doing it.

And YouTube, in its early days, was part of this system. It would not be the platform it is today if it weren't for pirated Family Guy and Daily Show clips. Viacom sued them about it for years, so in order to keep existing YouTube had to create a ludicrously complicated piece of technology that checks every moment of every video uploaded to its platform against a vast library of content that includes, like, everything that has ever been made. But Youtube doesn't actually want to stop copyright violation, and neither do the rights holders who own that content. 

Here on the Vlogbrothers channel, we (by which I mean mostly me) have uploaded copyrighted content to the channel lots of times before and we've never had a video blocked or taken down. I've blatantly stolen, like when I basically made a music video for a Willie Nelson song; and then there are more questionable cases like when I released a song called "The Subway Where I Used to Go," which I would argue is parody.

In all of those cases those videos were not blocked or taken down — they were claimed, which means that the money that they earned through Google's AdSense product went to the record labels of Godye and Willie Nelson, respectively. 

 When YouTube's fancy-dancy content ID system... (02:00) to (04:00) ...finds someone's property in someone else's video they give the rights holder the option to do one of four things: 1-they can basically do nothing and just track the video 2-they can claim the video and make money from it 3-they can block the video in certain countries or in all countries, or 4-they can take the video down off of YouTube and issue a copyright strike. 


Inside YouTube's dashboard a rights holder can set up rules — simple ones, like "everyone who uses anything gets a global block," or complicated rules like "claim any view from Croatia that contains more than 30 seconds of my property." But this is almost never done manually — it's just done with these filters.

Only this last thing, the take down, is a legal step. It's the only step that is not automated and it's the only step that requires an electronic signature. It is also the step that's most impactful. A copyright strike affects a channel's ability to monetize, and channels that get three of them can be deleted from the platform along with all of the content from that channel. 

So you only only get a copyright strike, which is the big deal, if the rights holder decides to give you a copyright strike, which is, from a creator's perspective, uncommon and completely random. This policy and the way that rights holders interact with it actually encourages creators to take these kinds of risks. 

And I would argue that this is actually a good thing. I think it frees up creators to do more interesting things; it allows for everyone to interact with intellectual property in a more malleable and less strict way; and it allows rights holders to allow uses that actually benefit them. 

Losing monetization on a single video, which is the most common thing that happens, isn't that big of a deal for most creators. And the claiming system is actually pretty genius, because it allows these big giant companies who would otherwise be yelling at Congress about how they need to shut YouTube down, to get a whole new income stream so they stop yelling so much. 

 So Elle Mills can use "I'm Walking on Sunshine" in a video... (04:00) to (06:00) ....and she might lose her YouTube revenue, but she might also grow her audience and make money selling shirts or doing a brand deal. And I can use Elle's footage in my video without asking her because I know that the worst that's gonna happen is that I'm gonna lose monetization, which sucks but isn't the end of the world. 


Now of course this is not a perfect system. It has two very big flaws: 1-only large rights holders have access to this system. If you're an independent filmmaker or musician or photographer, it's very difficult to get your content into the content ID system. YouTube does not — and will never — let everybody into this system, in part because it's very easy to abuse. 

Which leads us to the second problem: It's very easy to abuse — even, sometimes, accidentally. Here's a hypothetical situation for you. Say the Daily Show includes some footage from NASA that's in the public domain in a clip that they upload to YouTube. They then claim that clip as their property. But then other people also upload videos that have that same public domain clip from NASA in their video. 

The content ID system doesn't know the difference between the part of the Daily Show clip that's their property and the part that's in the public domain. So all of those people suddenly have their content claimed. They might not know how to dispute that claim, or they might be afraid to dispute that claim because they might end up with a strike on their account. 

False claims have been a huge issue since the beginning of content ID and they remain a really big issue, especially for small- and medium-sized creators who basically have no recourse if they hit that third strike.

So it's a system with problems, but it's not not-working. There's lots of interesting creative things being done on the platform and so far YouTube has allowed that stuff to continue happening without being sued out of existence. Win! It's a creative and economic ecosystem built on policies and individual choices — not on the law.

 Apparently this is all possible because of what's called "safe harbor laws", and we have a good big one here in the U.S. that basically says "rights holders cannot sue YouTube for the laws that have been broken by the users of the platform"... (06:00) to (08:00) And that turns out to a little bit weaken intellectual property, because that means we can use video from The English Football Association or whatever it's called, and they can block our video, they can take down our video, they can even issue us a copyright strike but they can't really sue us because the amount of money it would cost to pay lawyers to sue us is literally more money than our company has in it's bank account.


Doing this individually for tons and tons of small creators...it's just not logistically possible. But doing it all at once for all content that had English Football Association stuff inside of it that was uploaded to YouTube; if they could sue YouTube for that: YouTube has tons of money, and has had lots of English Football Assiciation stuff illegally uploaded to it's site, that would be a great lawsuit waiting to happen.

But safe harbor laws make it so that YouTube isn't responsible for the dumb decisions of creators like me. Which is good cause John and I are like among the more trust-able YouTube creators and you still can't trust us to not break the law. So the system is kind of set up in a way where YouTube has figured out how to satisfy the requirements of the law and from there the law doesn't matter anymore.

This isn't how it's supposed to work! Like, if you break the law, you're supposed to get fined or arrested. You are not supposed to get claimed or taken down.

Copyright law, or even the modern idea of what copyright is was not designed for a world in which literally everyone is a distributor. Much less for a world in which everyone is a rights holder. It's not law, it's YouTube policy informed by the law, but it's consequences are just as significant.

 Like having your channel demonetized or removed from the platform isn't that different from a fine. Now you can challenge a take down or a block, but if you do that, in my opinion at least, you're much more likely to get a strike. For example, the Football Association didn't issue a strike to our channel but if we challenged their block that would annoy them because a human being would have to deal with it. (08:00) to (10:00) And most of these arguments come down to what's called the Fair Use Docterine.


Though it is often claimed to be simple by creators like myself, Fair Use is not simple, and in fact we have pretty much an entire episode of Crash Course Intellectual Property dedicated to explaining how unsimple it is, and it outlines some other ways in which copyright law does not work great in today's society (you should watch it). But there are literally not enough lawyers alive in the world today to argue all of the fair use cases that YouTube has created for us.

And, courts have not been consistent at all in how they determine what is and is not fair use, even within individual countries. And there are also hundreds of different countries all with different laws so you can see how this can get complicated really fast. This isn't to say that you shouldn't dispute claims.

If a claim has been made on your content in error or if there is a good case for fair use, dispute that claim! That's the only way the system works. But if you just Hank-Green-style used a Willie Nelson song because it made the video better, don't dispute that claim, that's how you get a strike.

So, John, was your video last week fair use? Probably not. But, was it an excellent promotion of the FA Cup?

Was it great content for the rights holder? Was it better for them to have the content on YouTube than to have it removed? I think everyone, even the English Football Association, if they actually watched the video, would agree that it's probably better for that video to be out there than to be blocked.

 So that brings up another hairy question: is it okay for rights holders to take down content when they don't like it but leave up content that they do like? And we have, in fact, seen this explicitly among independent creators, where creators are commenting on each others' content in ongoing drama feuds, and then they escalate that by issuing take down notices and copyright strikes on a channel that they're feuding with. So would it be okay for the football association to leave your video up if they like it but take it down if it's really mean about football... (10:00) to (12:00) ...and talks about how it's a dumb sport and it's very slow and no one ever scores goals? (Not my personal opinion!


I'm just saying that's a video people could make). Again, it doesn't matter.

This isn't about law anymore. No one has the time or money or inclination to take any of this stuff to court. The current state of copyright is kind of only peripherally related to the law.

It's much more related to the policies of the platforms on which we operate our businesses and our lives, which is a strange situation to be in as we realize that we are kind of citizens of corporations. When YouTube changes policy in ways that benefit creators, which it has done, for example when it stopped sending money to rights holders who claimed videos immediately and instead held that money while waiting to see if there was a dispute, it doesn't do that for legal reasons. It does it because its' creators yelled at it enough that they listened.

Almost like a government. And changes in YouTube policy have real-world legitimate effects on intellectual property and how creative people interface with it. That's what I mean when I say that we've moved beyond the law.

For me, YouTube policy matters far more than the courts when it comes to copyright. And we didn't really have another option, because copyright, as written, is fundamentally broken. We know that because we are all constantly breaking the law and no one cares.

Here's an example: this gif. I don't own this gif. It was absolutely stolen, but everybody agrees that gifs are okay because culture blew past the law. (And also, apparently, standardized pronunciation of the word 'gif').

But somewhere between gifs and soccer highlights there's a line, and no one knows where that line is. But it is not being defined by governments. At least not at the moment.

 Seriously, if you're in the EU look into Article 13; it's pretty scary. It makes intellectual property much stronger, which in my opinion, probably makes creativity a lot weaker. If you examine this for long enough it becomes very clear that all of this is much more about like... (12:00) to (12:18) ...how we feel; what seems right, and also existing tiers of power, then what, like, the law says.


It's a mess, and John, if you look closely, there might be a way for you to watch the video that you uploaded last Tuesday, though slightly modified for people who might have missed it. I'll see you on Tuesday.