Copyright and Content ID


Copyright is something of a hot button topic these days; what, with YouTube and their controversial Content ID takedown procedures.  Rightly or wrongly, there is a lot of anger that has worked its way into the copyright debate that I think is clouding the issue, and I wanted to set the record straight on a few things.

Who am I, you might ask? Why, I am Mike “JrBeard” Hewitt; regular contributor to Spiderduck Network and burgeoning lawyer. I am a second year law student and, while not an expert by any means, I have been studying copyright for a couple semesters now and I like to think I have a decent understanding of the topic.

First off, let us establish the most visible problem people are having with copyright right now: Content ID. If you are a YouTuber, you may have just gotten a slight shiver down your spine because you know what a dirty word Content ID has become. For those who do not wish to click the link, allow me to summarize. Content ID is a system by which content holders who “. . . own exclusive rights to a substantial body of original material that is frequently uploaded by the YouTube user community,” may exercise their rights as copyright holders to protect themselves for breaches of their copyright. This means that copyright holders can choose to 1) Monetize videos that they themselves did not upload, but which violate their copyright; 2) Block videos that violate their copyright from being viewed; or 3) have access to the analytics of a video that violates their copyright (please note that I use “violate their copyright” only in the context of the content ID policy and not as any kind of judgment on videos that have been taken down). YouTube is a vast place, though, so this entire process is handled automatically by checking all YouTube videos against a database of submitted, copyrighted, content.

I know what many people are thinking here, “Mike, all of that is fine, but why did my home movie, that I made of our family reunion, get taken down? No one but me owns the copyright on that video.” Good question, disembodied voice who always tries to prove me wrong. Did you happen to have, say, any music playing in the background? That is where the problems arise with YouTube’s Content ID system—a computer program cannot assess the context of the use of any flagged video or music.

Now, I could bore you with the vast history of copyright law, but you don’t want to read that, do you? What I will tell you is what the law is now, and why a company like YouTube is issuing DMCA takedowns the way they are.

This is why YouTube automatically flags your videos. 

That individual is being charged ~ 20,000 dollars PER SONG, for a total of ~41 million dollars, for copyright violations. I think most people's gut reaction would be one of shock and disgust. How can such an outrageous sum be tolled for what is ostensibly worth about $1.30 per song? Two words, statutory damages.

17 U.S. Code § 504 (c)(1) reads as follows:

“. . .the copyright owner may elect, at any time before final judgment is rendered, to recover, instead of actual damages and profits, an award of statutory damages for all infringements involved in the action, with respect to any one work, for which any one infringer is liable individually, or for which any two or more infringers are liable jointly and severally, in a sum of not less than $750 or more than $30,000 as the court considers just.”

What that means is that for every single copyrighted work violated, up to $30,000 dollars could be awarded as damages. Technically, MP3Tunes got off easy at $20,000…

Starting to see why YouTube is so worried? Just think about how many hours of video is uploaded to YouTube every minute. How many of those users take copyright law into account before uploading, do you think?

There are some protections for YouTube, provided by the safe harbor provisions of the Digital Millennium Copyright Act (DMCA); but those protections don’t help you and me. In fact, these safe harbor provisions are the reason why Content ID is such a headache for users.

Title 2 of the DMCA provides that a service provider is not liable under the Act for infringing material that he may be hosting on behalf of a client or user. This limitation is subject to some conditions - most notably: the provider must quickly remove any material that is claimed to be causing a copyright infringement. 

That second part sounds a lot like Content ID to me. The act does provide that a person who is subject to a DMCA takedown has the right to challenge that takedown, but that doesn’t change the fact that their videos were flagged in the first place.

Look, the situation sucks. Things like statutory damages were originally meant to be used against counterfeiters, not against the general public like this. Most of the copyright laws were drafted before the advent of the internet. Back then, the only copyright concerns a company had were at a corporate level. The internet makes it so much more personal.

Directing your anger at YouTube is to obfuscate the real culprit—the law itself, as well as those who draft it. YouTube is following the letter of the law with Content ID, and they would be acting irresponsibly as a business if they didn’t.