YouTube, an IP Regime unto itself?
This is the sixth (and, for now, final) post in this series, where we’ve looked at the copyright requirements and options for digital content creators, such as blogs and podcasts. I – very briefly — touched on the necessity — or, at least, prudence — of registering your content with the US Copyright Office (including through group registration in appropriate cases); looked at the application of the DMCA “notice & takedown” provisions for rightsholders; at the CASE Act process that will become available starting next year; and then the sharing license options provided through Creative Commons, for those who opt to go that route.
In this post, I’m looking at the vast domain of the YouTube video & social media platform —which, lest we forget, is a major division of Google/Alphabet — and how its copyright aspect manifests in options for individual contributors (“YouTubers,” in the jargon). Definitionally, while YouTube is many things, it is not wrong to understand it as a social online video platform (one such among many). In this post, I am looking primarily at YouTube’s aspect as a video hosting site to which anyone may upload their original works. (An exceptionally informative interview with the CEO of YouTube, Susan Wojcicki, is available here. ) Basically, YouTube is a video publisher/host that does not charge users for their publishing and uploading activities. This openness was a key selling point from the very beginning of the platform. (At present, YouTube certainly has many other aspects, included music, television-like programming, and live streaming, but I am not going to get into those.)
Caveats: Given its vastness, and multiplicity of audiences and offerings, I can’t hope to do ”YouTube and Copyright” any sort of justice in this small a space; and I don’t plan to write a book or a white paper about it. Instead — in keeping with the thrust of this series — I will just touch upon the key copyright aspects for individual creators manifest in this most prominent of self-publishing platforms. (I’m not planning to get to Instagram or TikTok or Twitch, but some of the same points I raise here should also apply there.) Also, I am not focusing on how people make money on YouTube. There are plenty of articles on that, and the secret is : Release lots of consistent output, garner lots of subscribers, and ( thereby) gain lots of views – all of which may serve to attract ad buyers for your stuff (but might not; YouTube’s monetization algorithm is known to be fickle, and the “top winners” list is volatile). There are many valid complaints about YouTube, and I am not getting into any of them here.
Let’s look at three specific tools which may be useful for individual creators to know about (these are part of a suite of such tools made available by the platform, including YouTube Community):
- Creator Academy: YouTube’s “Creator Academy” is a subsection of the site where resources, mostly “How-To” videos, are pulled together for the aid, comfort, and self-education of newbie content channel publishers. It’s all nice and friendly and indicates (to me at least) that even though YouTube is all grown up and part of a technology giant with aims of mass media domination, in its algorithmic heart it still remembers the little guy. Awww.
- ContentID: Content ID is (basically) an algorithmically derived unique identifier for content appearing on YouTube. It has several uses, among them assisting in YouTube’s efforts to comply with DMCA notice and takedown requirements. On the positive side, it helps drive more reliable use analytics of one’s content on YouTube. It, too, is controversial. But what it isn’t is a substitute for a copyright registration. (It may well substitute for a traditional bibliographic record, which is an interesting thing to think about; YouTube is also, since 2018, an ISNI provider, which means it can create a unique identifier for creator/contributors – a very helpful thing to have in the metadata world.)
- See also: Copyright Match: A more widely-available alternative to ContentID
- Reupload Prevention Tool (unnamed): Speaking of the DMCA (YouTube /Google is generally understood as being the world’s largest user of the notice & takedown procedures) . . . -iIn mid-June, YouTube enhanced the functionality of its web form for initiating DMCA 512 notices with the aim of reducing “reuploads” of content (what is sometimes referred to as the “Whack-A-Mole” problem). This is still fairly new, such that it may take a few months before the data indicates whether it mitigates the issue (more about that here).
At a certain level of abstraction, YouTube’s copyright rules – both those for users and those for creators – might be viewed as a software overlay on the “code” laid down in the DMCA. In order to achieve scale on the order of billions, YouTube’s implementors designed away from human fingers having to ‘touch’ the content beyond absolute necessity – all such decisions are pushed down into the algorithms and the interface.
Regarding licensing, qualified YouTubers have the option of offering their works for monetization (essentially, ads running against views of their material) or for licensed reuse under a suitable Creative Commons (or other) license. There is no guarantee that any creator will make money but, then again, when is there ever?
Copyright and other “Strikes”
Unfortunately, sometimes bad things happen with one’s works under copyright, especially when they are available on a widely used public platform – for example, someone claims something that is not of their creation or infringes on a work through copying and distributing it. In any copyright regime, and in any responsible hosting platform allowing for public contributions, some form of enforcement mechanism is necessary. YouTube is no different in that respect.
YouTube’s strike system – the reference being to the call “Three Strikes, You’re Out” in baseball —is its unique implementation of the requirements of DMCA’s section 512.
(This maze is a little complicated, so I am really encouraging readers at this point to follow the links here to YouTube’s Copyright Strike Basics page, its Community Guidelines Strike page, and its ContentID Claim page in order to better understand the differences. Also, the various claims and strikes mechanisms are interrelated.)
- A YouTube Copyright Strike results when the presumed owner of material under copyright – whether on or off YouTube – makes a claim that a user has uploaded material without authorization. If the claim is not resolved in the user’s favor – claims can be contested — the material is taken down by YouTube and a strike is lodged against the user’s account.
- A YouTube Community Guidelines strike results when a complaint is lodged against a video which is said to have violated one or more of YouTube’s community guidelines, e.g., on the basis of content constituting a privacy, harassment, or violence violation. Similarly to a copyright strike, the complaint may be resolved in either direction – either the strike is issued against the user, or the user prevails because YouTube has determined that the allegation of a policy violation was not sustained (or perhaps even valid in the first place).
- A ContentID Claim occurs when something in the video content triggers YouTube’s content algorithm to indicate that a recognized (to YouTube) piece of copyrighted material is found within the new upload. The issue may be the whole video or it may be an embedded portion. Note that the algorithm does not work perfectly — most prominently, it doesn’t understand the US legal doctrine of fair use very well. (To be fair, a great many people don’t understand it very well It is not a “bright line” concept of the sort which is easier for algorithms to be coded to accommodate).
Popping back out of the rabbit hole I referred to in my first post in the series, I think in our survey of the field we have seen a mixed bag of results on the topic of copyright and digital content creators. While copyright registration is certainly recommended for bloggers and podcasters who wish to protect their IP, and certainly for those who hope to commercially exploit their own work, it is not always convenient, and it is certainly not cost-free. DMCA’s procedures provide a “first line of defense” but may not work to everyone’s satisfaction — and are due for an update. Starting next year, the CASE Act may provide low-cost/quick process relief for some abuses of the copyright of creators of social media content. For the more easy-going as to rights, there is always the Creative Commons licensing option. If you want to do a video version of your blog or podcast, well, YouTube and the other video platforms are right there for you to consider.
It’s a fun time to be alive and to be creating. Explore your options.