Open Letter to YouTube Regarding Content ID

Written by Patrick McKay

Thursday, 15 September 2011 19:12

  • PDF
  • Print
  • E-mail

Dear YouTube,

Over the last few months, I have become increasingly aware of a fatal flaw in YouTube’s copyright enforcement regime, which frequently leaves non-infringing videos blocked for supposed copyright reasons with literally no recourse for the user and no way to dispute the copyright block.

Contrary to YouTube's stated policy of requiring copyright owners to escalate to a DMCA notice to get a video removed after the user files a Content ID dispute, YouTube is now allowing copyright owners to "confirm" their claim against your video, after which the video is permanently blocked with no recourse to either a Content ID dispute or a DMCA counter notice. Instead, the "view copyright info" page will simply give a message saying, "All content owners have reviewed your video and confirmed their claims to some or all of its content."

Here is how YouTube claims the Content ID dispute process works. According to this post on YouTube's official blog from April, 2010, http://youtube-global.blogspot.com/2010/04/content-id-and-fair-use.html:

  • When you receive a notice in your account via Content ID, we tell you who claimed the content, and direct you to a form that lets you dispute the claim if you so choose.
  • If you believe your video is fair use, check the box that reads "This video uses copyrighted material in a manner that does not require approval of the copyright holder." If you're not sure if your video qualifies, you can learn more about fair use here.
  • Once you've filed your dispute, your video immediately goes back up on YouTube.
  • From this point, the claimant then makes a decision about whether to file a formal DMCA notification, and remove the content from the site according to the process set forth in the DMCA.

In the vast majority of cases I've seen, however, that is NOT what happens. Rather, once you file a Content ID dispute, the copyright owner  simply "confirms" their claim against your video, it is re-blocked by Content ID (not a DMCA claim), and that's the end of it. There is no further option to file a Content ID dispute, and if you file a DMCA counter-notice on the video it will be rejected because the video is blocked by Content ID, not a DMCA claim. So in the end, the user is left with their video remaining blocked with no recourse.

To be perfectly clear what I am talking about, I created the following flowchart, comparing the way YouTube says the process works with the way it actually works in practice:

Content_ID_Fail

Because of this website, I have received numerous messages from people stuck in this situation, and I have experienced it myself on numerous occasions--only once with a video that was blocked in the U.S., but frequently on videos blocked in other countries. You can read the full account of my experience here: http://fairusetube.org/articles/20-falling-through-the-cracks.

Videos blocked in other countries I can live with, since those countries may not have equivalent concepts to the Fair Use Doctrine in the US. But in the US, if somebody legitimately believes their video is protected by fair use, they should have the ability to effectively dispute a copyright block on YouTube, and the copyright owner should at the very least be forced to file a formal DMCA notice to have it removed after the user has disputed the automated Content ID block. Then if the user still disagrees they can file a DMCA counter-notice and have the video restored, at which point the copyright claimant should have to get a court order to permanently enjoin the video. Once again, this is the way YouTube *publicly claims* the system works, but not how it is done in practice.

I have been trying to get YouTube's attention on this for months now with no success. I managed to contact Mike Masnick of the blog TechDirt, who put me in contact with Annie Baxter and Aaron Zamost of YouTube. They said they'd get back to me three weeks ago and I haven't heard from them since. Last week, the blog TorrentFreak ran a story on the flaws in YouTube's Content ID system after I contacted them about this issue, and I was quoted in the article, which you can read here: https://torrentfreak.com/youtubes-content-id-piracy-filter-wreaks-havoc-110908/.

As far as I can tell, this problem has been going on for a long time, and YouTube has done nothing to address it. Frankly I think it is absurd that through the Content ID system, YouTube gives copyright claimants the sole authority to decide whether or not to accept a user's claim that their video is not infringing--essentially making them the judge in their own case (might there be a little conflict of interest there?). I am posting here in hopes that I may finally get someone's attention at YouTube who can rectify this problem. I ask only that you either fix the Content ID dispute process so that it actually does what it claims to do and forces copyright claimants to escalate to a DMCA claim after a Content ID dispute has been filed; or else be honest with users and tell them that there is in fact no effective means to dispute a Content ID block. Just stop being hypocritical and saying the process works one way when it doesn't.

Sincerely,

Patrick McKay
Law Student, Regent University School of Law
Administrator, FairUseTube.org
YouTube User: DarkLordofDebate

Last Updated on Thursday, 19 July 2012 13:57

 

Comments  

 
+1 #1 Mark 2011-09-26 10:31
A video of mine that got blocked WAS taken down by a formal DMCA take-down notice after I went though the Content ID dispute process so I was able to dispute the take-down with a counter-notification, and (barring the extremely unlikely event of a lawsuit) it should be back up by tomorrow at the earliest.

I was actually scared to file a Content ID dispute because I thought it would get re-blocked by Content ID and I would have no further recourse to get the video restored. Thankfully, that didn't happen.

I don't know if other users' recent experiences with the system have been as fortunate as my own, but I hope it means that maybe YouTube IS beginning to address the problem.
 
 
+2 #2 Patrick McKay 2011-09-26 11:07
It is odd. Sometimes the system does actually appear to work as claimed, but more and more it does not. I don't think anything has really changed, since I tried re-submitting my video last week, and the exact same thing happened. Perhaps the option to "confirm" copyright claims is only available to some Content ID partners and not others?
 
 
+1 #3 Recent Grad 2011-11-21 09:52
Interesting issue - thanks for the heads up. Raises interesting issues of ISP/host liability in IP infringement claims - what are the limits of net neutrality in a case like this?

Found this page through a reference in this article on Wired.com: http://www.wired.com/threatlevel/2011/11/youtube-filter-profiting/

I wonder if the inaction stems from, as noted, the relatively small volume (overall) of vids this happens to, the complexity of revisiting a porous content management system, and the lack of effective practical and legal recourse for original content posters who get hijacked. I'm not sure what the law in the USA is on this exactly, but if there is a flaw in the content ID system that is known and that is causing legal damage to original copyright owners (ie. false copyright ownership claims that lead to loss of control/enjoyment of the actual original owners' IP plus loss of ad revenue), might there be an issue of vicarious liability for copyright infringement, if their system - or lack of action when a systemic and unresolved issue - even inadvertently facilitates copyright infringement?

I wonder what the EFF or CIPPIC or other internet/IP law clinicians will make of this or not - is it an indicator of a future trend pitting individual creators against corporate/tech providers that needs to be addressed, or just a minor glitch in the ongoing development of the internet and online living.

Curious uOttawa Law Grad
Nov.2011
 
 
+3 #4 R Cooper 2011-11-21 11:10
I have an ongoing issue with a video I posted a while back. Apprently the music matches a "signature" for one particular publisher, but I have documentation and references that the actual performance track I used was created and published by someone else. The actual performer/publisher released his track under Creative Commons. I have provided Youtube with the ISRC number for the track I used, but the claiming publisher has "confirmed" the ownership. I do believe this constitues fraud, perpetrated by the publisher and facilited by YouTube. Would the actual performer/publisher have a possible criminal or civil case against the claiming publisher in a case like this?

The piece of music in question is Bach -- Brandenburg Concerto #4, which itself is way out of any copyright considering they were composed around 1720 AD...)
 
 
+1 #5 Patrick McKay 2011-11-21 11:33
Under that situation, there are probably a number of things you could sue for (civilly--I doubt you'd ever get a prosecutor to file criminal charges): fraud/misrepresentati on, conversion of the ad revenue income, intentional interference with contract--to name a few.
 
 
+1 #6 A Filmmaker 2011-11-21 20:09
I recently went through exactly the process you describe here: two different videos of mine were wrongfully content ID'd within the space of a few weeks, for allegedly having audio belonging to two different German companies. I disputed both claims, both companies "Confirmed" that the content was theirs. One video is blocked in Germany, the other there is no mention of anything being done. I have been emailing Youtube asking about how to continue the appeal to no avail, and their help center is a joke that just keeps redirecting me away from my questions rather than answering them.

My problem with this is that both videos are 100% original, and in my case, are parts of a larger film that I produced and published over two years ago and have been producing for almost 6 years (meaning it even predates both the German companies existence). In addition, I am the official US copyright holder for this film. Is there any way I can dispute this? Would it be appropriate for me to file a DMCA counter-notice through youtube (despite the fact that the videos have not been actually removed, just one of them blocked), as that's the only option I can find on their site? Or should I just contact my attorney now and start talking lawsuit options? I don't really understand what's going on with these German companies but I obviously have no interest in giving up any of my intellectual property, particularly since my production is not-for-profit and their companies are clearly not so.
 
 
0 #7 A Filmmaker 2011-11-21 20:11
Quoting R Cooper:
Apprently the music matches a "signature" for one particular publisher,


In response to this: there may not be a particular signature of any kind: both the companies I mention above are music distribution companies, but one of my videos doesn't even have music in it of any sort. If there's an audio signature, it must be pretty vague, which may in and of itself be part of the problem.
 
 
0 #8 Patrick McKay 2011-11-21 20:14
You can certainly try using a DMCA counter-notice, but as far as I know, that almost always comes back with a message saying this is a Content ID problem not a DMCA problem, and you hit another dead end.

I think in you're case, I'd highly recommend talking to an attorney about pursuing legal action. The only way this is going to end is if there's a lawsuit, preferably both against the perpetrator and YouTube for building a system that allows this fraud.
 
 
0 #9 A Filmmaker 2011-11-21 20:41
As it stands now, I'll try the DMCA counter-notice first and then seek legal action if/when that fails. The German companies now are using my videos to market the music they falsely claim is used in them, so I've disabled both videos from public view to at least put a stop to that.

Normally, I'd just delete my youtube account at this point: I have no interest in posting my hard work on a website that will allow others to take the credit and make a profit from it. However my biggest concern is, are/can these companies make a claim to own my videos even after they've been deleted from Youtube? It's not like Youtube/Google doesn't have servers and records on file. Were I to delete my youtube account, do you think these companies would/could still make a claim to own my video content beyond the internet?
 
 
0 #10 Patrick McKay 2011-11-21 20:45
The Content ID system is completely internal to YouTube, so I don't see any way it could affect your videos beyond YouTube. Deleting the videos would prevent them from claiming them, though they could always upload them to YouTube themselves, or someone else could and they could claim them then. But just because YouTube lets them claim the videos on their site doesn't give these companies any actual rights in your video that they could assert elsewhere.
 
 
0 #11 Frank 2011-11-23 15:35
Hello Patrick, you can add my name to the list of people in limbo. Furthermore, my video was/is blocked in the US as well! Since I have no more dispute options, I will probably: delete the video, re-upload it, and try to dispute via Content ID when the inevitable block occurs again. Rinse and repeat as neccessary... Let me know if there is anything else I can do to help you in your fight!
 
 
0 #12 Alex Kudinov 2012-02-19 19:48
Sir, in case you are interested prepare all your writings on the matter as manuscripts to be published in the scholar journal that I founded, Beatles Scholar
 
 
0 #13 Alex Kudinov 2012-02-19 19:50
Don't delete your videos! This is a wrong way to cut roots of the misconduct by others! Let your videos collect data of the miscobduct by partners-in-association-with-youtube-and-google. It will be helpful, when fbi agents will visit them for an inspection of servers
 
 
0 #14 Rashid khan 2012-02-27 15:32
I want to make my u tube I'd for uploading my vidios
 
 
0 #15 Rashid khan 2012-02-27 15:34
:-x
 
 
0 #16 GenX 2012-03-06 01:39
We have massive problems with "entities" making claims on PUBLIC DOMAIN videos on our channel, CinemaVintage - They even try to claim The Prelinger Archives (Rick Prelinger who dedicated it all to the public domain at Internet Archive was interested to know this btw)- and these "entities" are numerous and relentless. Not just EMI claiming US government PD but companies like "GoDigital" who insist, in order to "remove the claim" that YT users wfill out their site form, giving them the user's LEGAL info in a very long form. "Shamaroo Ent" "Viewster/DivaAG" and "Cinetel Multimedia" keep claiming movies like "My Man Godfrey". We do everythign in our power to dispute them, including persistent direct contaact, but it's no good. They keep coming again and again. The public domain is already shrinking and getting smaller. These "entities" will "claim" it until it no longer exists and YouTube, contacted many times' do nothing. This is a serious problem for many, not just us, and one no one seems to genuinely care about. Everyone will miss the public domain... when it's finally gone.
 
 
0 #17 Michael Kamm 2012-05-31 15:44
Hi Patrick, we spoke/wrote a while ago. Just wanted to give you an update. managed to get all videos on YouTube unblocked except for one. I still have one that is blocked to viewers in the United States only by Warner Chappell. I've written them multiple letters but they continue their block. It seems that companies like this are manipulating the Content ID. I was able to get my videos unblocked by being a persistant pest to both YouTube and Claimants. After many communications you can see my videos, but some are still wrongfully being claimed as copyright infringement. This system is faulty and unfair. YouTube is not being diligent in solving the loophole. If enough people could join in a Class Action, maybe we could force them to change. Please let me know if you hear of any such action forming or forward any new updates you receive. Thank you very much for your help and efforts in assisting the YouTube users. Best regards.
 
 
+1 #18 Poison Poet 2012-07-10 05:13
Add one more to the list I currently have 2 videos with live performances of PUBLIC DOMAIN compositions with claims against them. The first is a christmas video of my wife and I playing "Silent Night". We worked out the music by ear then performed recored etc. ourselves. Warner Chappell claims copyright. I Disputed the claim they rejected it...dead end. I'm not even sure who to contact a Warner Chappell to request that they rtetract the claim. The other video is of my friend playing Bach cello suite no.4. It drew 3 copyright claims from GoDigital, AdRev and an entity called "Public Domain Compositions". GoDigital and AdRev have released the claims and I'm still waiting to hear for this mysterios third. Thanks for all of the information you've posted it's good to know that I'm in the right.
 
 
0 #19 checkthisout 2014-01-04 05:41
check this out -

http://www.youtube.com/watch?v=q5Xx9Q0JtQQ

the changedotgov channel, it even has a link in it's description to it's creative commons - got tagged. look at the dance mix links on the lower right of the video - and it has an ad.

Obama got tagged for his own speech, apparently his 2008 victory speech was an acapella for a dance mix.
 

Due to excessive spam, comments have been disabled for the time being. I hope to upgrade the site soon with a new comment system that can filter out spam.