As you know, I’m an artist-in-residence at Eyebeam and Public Knowledge examining fair use and artists’ rights online. After taking a nation-wide survey on the status of fair use, I’ve been somewhat “lucky” to be able to continue to draw on personal experience as I endure the on-going dispute process for three of my fair use remixes. The process that has helped me both clarify the problem and brainstorm an easy possible solution for Content ID and the perceived ability for a hosting site to pick and choose who they afford fair use rights to.

We know that YouTube’s Content ID system is a private agreement that was created in response to pressure the company received from copyright holders who wanted an automated solution to detecting copyright infringements on the site. The resulting system scans over 400 years of video daily from more than 5,000 “partners” or copyrights holders including major US network broadcasters, movie studios and record labels. When there is a match, the majority of claimants opt for monetizing the user’s video by running ads on it. This process allows the user to keep the video online and allows the claimant to directly profit from the reuse and distribution of their content. Such flagged content cannot be monetized by the creator, only the copyright holder. If the user disputes the matched content, claiming they have rights to the content (under fair use, for example) the copyright holder acts as a judge in this case, despite the fact that they issued the claim. YouTube (or the hosting platform, whomever they may be) is protected by a safe harbor provision under the DMCA. They absolve themselves of any liability, making the case between the user and the copyright holder.

The Content ID system, while great for addressing the legitimate piracy concerns of copyright holders, often puts fair users, the ”dolphins” caught while fishing for “tuna”, in a legal bind. The system is automated and can not detect the context in which the copyright content was used. As a result, the system often mis-identifies legal, fair uses of copyright content for infringing reuses. Such private agreements between hosting platforms and copyright holders undermine the safeguards for fair use that are built into the law. As of 2012, over 120 million videos had been claimed by Content ID. There is no way to know how many of these videos were falsely claimed.

3. Don Loves Roger YT Image 3. Don Loves Roger YT NoticeThe system’s internal dispute process allows fair user’s to defend their work, however, clearing up an erroneous Content ID match is time consuming and intimidating: users are encouraged to seek legal counsel if citing fair use, disputes take weeks to resolve and follow-up disputes are often necessary as multiple companies repeatedly claim ownership seeking ad revenue.

What’s wrong with this process:

1. ISPs (YouTube, in my case) currently have an affirmative legal obligation under the DMCA to pre-emptively remove content on request of copyright holders. (This is one of the many reasons why the DMCA needs changing. Yours truly helped win crucial exemptions to the DMCA that allowed creators to rip DVDS for artistic purposes. Yes it took until 2011 to make this legal. The DMCA is in heavy favor of copyright holders and thus, compromising individual artists.) So it’s not just that hosts don’t have to recognize whether or not someone uses fair use, as I originally thought, it’s that the DMCA requires them to take the copyright holder’s word, until the user disputes.
2. However, the ability for the user to push back is severely compromised by:
  • The language surrounding the push back (or dispute) procedure. For example, YouTube strong suggestions finding a lawyer before disputing content you think is fair use without offering a definition, example or explaining what it is or isn’t.
  • Once you dispute the claim, the copyright holder decides whether or not they agree it’s fair use. In my experience, the copyright holder has rejected the dispute and reinstated the copyright claim. This means users have to push through another hurdle to dispute the claim, AGAIN, and wade through the legal jargon and encouragement to find a lawyer AGAIN just to keep their fair use content up and their embedded links alive.

Don Loves Rodger CopyrightSo it’s easy to get a copyright notice but difficult to defend yourself and your work.

The question remains, if such private agreements undermine the safe guards for fair use built into the law, what kind of obligation does a private company built on fair use (Google Image Search, Google Books, etc.) have to its users to allow them the same ability to easily access and defend their rights?

Article written by Elisa


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