YouTube’s Copyright System Was Designed to Be Broken
Photo by Rachit Tank on Unsplash
In the summer of 2019, YouTuber Koolers Mobile uploaded a video about a threatening email they had received. It was from the company AppLike, which wanted the creator to take several videos down.
“We reserve the right to take legal action if the named videos remain online…We expect the answer to the request within the next four weeks… Otherwise, we will take necessary steps to enforce our claim.”
The videos in question were reviews of their app — a fairly standard practice on the Internet. AppLike, though, threatened to submit a copyright strike if their demands were not met, claiming that the reviews were a violation of their IP.
Koolers Mobile is not alone in this problem. A quick search online reveals thousands of similar videos from small and large creators alike, claiming that third parties are trying to take advantage of them. This issue is a common one for content creators to deal with, where negligent and sometimes even malicious and opportunistic actors will use the massiveness of YouTube’s platform to squeeze out concessions and income from creators.
When you have a platform managed by AI that no one really understands, those who learn how to exploit it can easily target creators for both revenge and profit.
YouTube Policy
To get a good sense of all this stuff, we first need to talk about policy — I know, I know, not the most fun stuff, but bear with me for a couple of paragraphs, and then we can get to the scandalous bits.
When we talk about copyright strikes, it’s important to note that we are dealing with a complicated intersection between U.S. law and YouTube’s internal policies. Alphabet — formerly Google — which owns YouTube, is beholden to something known as the Digital Millennium Copyright Act. We could devote an entire book to the intricacies of this law — check out a cool breakdown here. In essence, it's a 1998 law that dictates the requirements that must be followed so that copyright holders can have infringing content on the Internet removed without litigation. To not get sued, referred to as a safe harbor provision, platforms have to provide a way for people to eliminate content that violates copyrights —in this case, a DMCA takedown request — and ensure that specific information is included within those claims.
The way that YouTube has interpreted these requirements is one of two ways, a manual form for submitting DMCA takedown requests and a Content ID Match system, the latter of which we will dive into later. The manual form only really requires that the claimant — who in this instance is the person submitting the DMCA Takedown request believing that their content has been violated — supplies their email, their relationship to the copyrighted material, and their name, which can also be a business. The relationship to the material does not have to be very detailed, and in some cases, I have seen examples of ones that are a single sentence long.
In the meantime, the claimant can request the video be taken down, increase the ads on the video, or take some or all of the revenue from the video. If the claimant wants the piece of content taken down, YouTube will often comply as a first resort because the legal responsibility lies with the claimant, who technically perjures themselves for a false claim. It's no skin off YouTube’s back if the matter takes a while to resolve. The creator is the one bearing the financial cost of the video being taken down, and the claimant is the one who will face legal costs if it ends up in court.
The content creator — the target of the claim — gets one strike for an unresolved claim, and after three strikes, their channel can be permanently removed. The content creator can appeal this request with a DMCA counter-notice, but assuming that YouTube doesn’t intervene, they have to appeal directly to the very person trying to take down their video — the claimant. Since claims can take weeks to resolve, you can perhaps see how this system places creators at a disadvantage. After two strikes, creators' accounts are no longer in good standing — essentially putting them out of work for that amount of time. More unscrupulously, claimants have used this power imbalance to punish creators they have perceived as wronging them.
For example, YouTuber Lindsay Ellis created a two-part series about how erotica writer Addison Cain used DMCA takedown requests to punish potential rivals and critics of her work. The YouTuber remarked:
“…it is extremely ironic that we have a fanfiction author who published her erotic fiction, which was just batman fanfic with the serial numbers filed off, filing DMCA claims against an author who appears to be using [her genre’s] tropes…”
For these comments, Ellis quickly became embroiled in the scandal herself after the first part of this series was targeted by Addison Cain with a DMCA takedown request. Ellis had to hire legal representation, and while the matter was ultimately resolved, it came after a month of a tedious back and forth with the writer's lawyers.
In another example, creator James Stephanie Sterling was in a similar situation after reviewing a series of video games by a developer who goes by the moniker Gilson B. Pontes. The claimant strategically spanned their DMCA takedown requests over the course of three separate days so each one of them could be counted as a separate copyright strike. The last one was released on Friday, before the weekend, to make the matter as difficult to resolve logistically as possible. It was only after Sterling threatened to go to court, notifying both YouTube and Gilson B. Pontes of their decision, that the videos were reinstated.
It cannot be overstated how many times DMCA takedown requests are used punitively against creators. There have been well-documented cases of scammers using the ambiguity of this system to ransom smaller creators. The Verge reported on a case of a ransomer threatening to ding a midtier creator with a third copyright strike — in essence deleting their channel — if they did not send them money to a bitcoin wallet or Paypal account. The blackmailer wrote to the YouTuber in a Telegram account and stated that both strikes on the channel would be canceled once the payment was received.
Takedown requests are supposed to take good-faith critique into account — see fair use — but malicious actors are very clearly manipulating this system so they can punish people they disagree with or extract money from vulnerable creators. Most creators don’t even appeal copyright strikes because they find the process too laborious. As professional audio engineer Glenn Fricker told The Verge:
“There’s no third-party arbitration system there. They make the claim and you could deny it, but what’s the point?”
This hesitancy is sadly very understandable. I just spent four minutes explaining how DMCA takedown requests work before even beginning to tackle how their current implementation on the platform is problematic. Most people don’t have the time it takes to grasp the intricacies of these policies, and they certainly don’t have the resources Ellis and Sterling do to pressure platforms such as YouTube to comply. As James Stephanie Sterling remarked in a video:
“And that’s how you beat an unfair, biased, deliberately disadvantageous system. All you need is the privilege to buy and lawyer your way out of it.”
And the situation is getting worse. With the recent solutions YouTube has implemented to solve DMCA takedown requests, manipulations have only exacerbated this problem for smaller creators.
Content ID System
The second way YouTube handles copyright issues is the Content ID System — an approach first rolled out in 2007 and has been steadily increasing in scope every year. The way it works is that certain creators can upload their work to this system — the form of which can be found here — which then creates a sort of digital fingerprint used to cross-reference with YouTube’s library. If a match comes back, a Content ID claim is auto-generated. The content holder can then decide what to do with the video in question — i.e., take it down, run ads, or collect the revenue.
This approach theoretically takes the malicious intent out of the process. No one is targeting anyone in this system because everything is happening automatically. The content creator does not receive a copyright strike on their record and has the same ability to generate a DMCA counter-notice, just like with the manual form. A problem, however, is that the system prioritizes uploaders into the Content ID System, particularly big companies such as Universal, Warner, and Sony, which can place smaller creators at a disadvantage.
In one example, user Paul Davids received a notice of copyright infringement for a backtrack that they made and recorded themselves. Another singer had ripped their backtrack, added vocals and guitar, and uploaded it into YouTube’s Content ID System. Since Paul Davids had not done the same, it meant that they, the original creator, were the person who received a content flag. The situation was resolved, but it highlights how the Content ID System is far from perfect. Again, most users do not bother to file a DMCA counter-notice, which means if you are an unscrupulous or indifferent actor, you can make quite a bit of money extracting ad revenue for content you do not own.
In another example, user EckhartsLadder had their intro song flagged by the company INgrooves — a subdivision of Universal Music Group. This situation meant that they were receiving copyright flags for hundreds of videos, and INgrooves was placing additional ads on their videos and contesting the revenue. EckhartsLadder had to submit a DMCA counter-notice for each claim, and until the situation was resolved, the money from those videos was placed in a holding account. It allegedly affected their income. EckhartsLadder lamented to their viewers in a video:
“They target the most recent videos (i.e., the ones that are still earning a lot of money)…my income has dropped by probably two-fifths since they’ve started this claiming process.”
Yet, the song in their intro, Resonance by the artist Home, was one that user EckhartsLadder had explicitly received permission from the original owner to use. In a Tweet on April 3rd from the musician Home, we can see that they are also confused by the ID claims and have pledged to resolve the situation. The disputed song listed by INgrooves on the hundreds of ID claims was not even the song Resonance, but Absurd by Daniele Matracia, who allegedly was also in the dark about the situation. And so, we have the revenue for a song being contested by a company that doesn’t even own it on behalf of a musician who is not asking for this to happen.
Eventually, the situation would be resolved because EckhartsLadder has a big platform and pressured YouTube to review the situation manually. Most creators are not so lucky. The situation with INgrooves is an ongoing problem dating back almost a decade, and other companies such as Warner Music Group are also aggressively taking advantage of the Content ID system.
While the creators who make a video on their situation mostly have enough resources and willpower to file a DMCA counter-notice — something that does not always guarantee a victory — countless others simply take the loss and move on, especially since they don’t receive a copyright strike for a content ID claim. As one user lamented on the online forum MPGH:
“There is no solution other than going to court. If I click appeal they will put a copyright strike on my account. I don’t know what to do other than just removing the song or deleting the video.”
Unless the claim comes in for a substantial number of their videos, content creators are essentially incentivized to take the loss and move on.
This system was designed to benefit larger content holders, not individual creators. YouTube relies on major music conglomerates for its service YouTube Music, which it bundles together with YouTube Premium — basically an ads-free version of YouTube — for $11.99 a month. Companies such as Universal Music Group and Sony have individual deals with YouTube to make that happen. The Content ID system keeps them happy, so these conglomerates get the revenue they think they deserve without resorting to the courts. According to Universal CEO Lucian Grainge, growing compensation from YouTube’s ad-supported and paid-subscription tiers was a major component to re-up their deal in 2017. The same goes for media companies like Warner Bros. Pictures and Paramount that leave infringed content up to continue extracting ad revenue.
The Content ID system has been implemented to better these relationships. It doesn’t resolve the core problem of Manual DMCA takedown requests and has instead created an even larger problem with automated ones. According to YouTube, most copyright claims are coming through the Content ID System by a ratio of 50 to 1. The revenge stories from the likes of Ellis and Sterling may grab headlines, but what we are experiencing with the Content ID System is a systemic problem, one going on for over a decade, that ultimately makes it harder and harder for individual creators to extract a profit.
YouTube does not appear to have any intention of resolving this situation. When responding to user dissatisfaction with the Content ID system in 2019 — problems that have not gone away — CEO Susan Wojcicki, wrote that she was aware of creators' frustrations with the system and that they were:
“exploring improvements in striking the right balance between copyright owners and creators.”
This legalese may sound nice in a statement, but it's ultimately a nonanswer that fails to identify the problem — copyright owners hold too much power in this dynamic. They have leveraged their position so much that they are now claiming the monetary value of content that they do not own, and for this arrangement to be more equitable, they will have to lose a bit of that unearned wealth.
Final Thoughts
This system is broken on multiple fronts. The original DMCA law provides legal requirements that ultimately reduce litigation costs for companies, not content creators. Platforms have no incentive to ensure if a DMCA Takedown request is happening in good faith. They mitigate their risk by taking the video down right away and then leave the legal responsibility left to the claimant, who technically perjures themselves if they lie about a DMCA Takedown.
Unfortunately, the high cost of litigation means that very few creators, even successful ones, have the time and resources to go to court. Most claimants know this reality, which means that, like with the cases of Sterling and Ellis, claimants can falsely assert that good-faith critiques and reviews are a violation of their copyright. The best-case situation is that the creator has enough clout to publically pressure YouTube to manually review the case and release the videos and income — a policy that places creators at a decided disadvantage.
On top of this problem, YouTube’s automated copyright system, the Content ID System, has created even more problems. It has not solved bad faith manual claims and has instead created an even further problem of creators being swamped by erroneous, automated ones. The Content ID System has merely increased claims, rather than ensuring if the ones being made are happening correctly and in good faith.
For this problem to be solved, YouTube will have to place in some mechanism to ensure that the initial claim does not place creators at such a thorough disadvantage. An obvious step forward would be for the company not to take down videos, extract income, or give out copyright right strikes until after a counterclaim has been rejected or a grace period has lapsed. The law does not require them to take videos down immediately. They are merely doing so to reduce their legal risk to zero. This change would mean creators do not suffer as many consequences upfront. However, if their counterclaim is eventually rejected, it still gives these companies the money they are legally entitled to.
And that's just one possible idea. Many concepts could be implemented, ranging from hiring more human monitors to revamping the three-strikes policy to be less strict. While not solving everything, these solutions would help remove some of the penalties creators who are wrongly targeted by a claim face. This inequity in YouTube’s copyright system does not have to exist. We can see how changes could be made to ensure more equity in the creator-advertiser relationship.
Until the platform is willing to value the people producing work for it — or far more likely, the law is changed to make them — then the money content creators make will get less and less, one strike at a time.