Prosecuting Youtube

Let me preface this article with the following statement. 

I firmly believe that content creators have an undeniable right to profit from their work. 

That said, I do have a problem with a copyright system that allows "owners" (which are usually not the content creators) to assert claims on anything they "believe" to be infringing without question by spineless "services" like YouTube. 

I also have a major problem with services that employ a hostile process for redress of the "accused."   

You're guilty with little opportunity to prove your innocence.  It shows up in dire legal verbiage designed to scare away any challenge and immediate penalties that effectively cripple the medium for the accused user.  

In short, on YouTube a copyright strike makes you guilty until proven innocent.  It's a  process that demands all but an admission of "guilt" before allowing you to do anything further on the service while the "infringement" is active.  In the end unless you live with a copyright attorney it's virtually impossible to mount an effective "defense."

So in case you haven't guessed, I just had another run in with YouTube but this one put the proverbial nail in the coffin...

I'd been using the service (notice the tense there) for over 3 years and had hosted almost 300 videos at one point.  I have an active adsense account that allowed me to participate in a revenue sharing agreement with YouTube by allowing them to place ads in my content.  A mutually beneficial arrangement although the benefit was decidedly slanted toward YouTube.

Over the years I'd dealt with a few copyright claims for music and game footage but none were ever elevated to the level of being an outright DMCA copyright violation.  My response was fairly routine.  

I'd either remove the "alleged" offending content if I was feeling generous or if I felt the claim invalid I'd contest it with varying degrees of success.  Over the years I had actually won a few disputes and got the so-called "owners" to back off.  If I lost I usually just deleted the offending video and was done with it.

I never intentionally tried to infringe anyone's copyright but if somebody thought I was trying to take their bone I wasn't going to risk any of my dogs fighting in a rigged game. 

But this was different...

The videos in question were about 2 years old and were simply some footage of a friend of mine testing Windows 8 Enterprise Evaluation edition in a VM.  

There was nothing about the videos that was a privileged information even when they were initially posted.  In fact I never saw anything obvious in Microsoft's EULA that mentioned a restriction on recording footage of the OS.

Unfortunately for me, Microsoft decided yesterday that it didn't like seeing footage of someone actually using their operating system and subsequently filed a take down demand with YouTube.  

Of course that's just supposition as YouTube almost never informs you of the exact "infringement" leaving you to guess.  Only recently have they began testing of an editing tool capable of removing alleged copyrighted content identified by their ContentID system.  Making every upload a coin toss...

Which means anyone who chooses to show a Windows desktop in their video could soon find their content ripped off of YouTube without warning, receive a copyright strike and never know why.

To me, this is nothing short of abuse of the copyright system.  It's bad enough that perpetual copyrights have become the norm effectively shutting anything remotely commercial in the past 50 years out of the public domain.  Now anything that even resembles or has elements of a copyrighted work can be suppressed. 

We're not talking about someone posting some unreleased Hollywood Blockbuster or the latest music video featuring Beyonce's... assets. 

It's about corporate bullying facilitated by a broken copyright system with lapdogs like YouTube doing their bidding. 

And I've had enough...

YouTube always sides with the accuser and as I already mentioned you're given feeble mechanisms for rebuttal. 

This latest insult was the final straw and my response was to delete the entire channel.  I'd rather sacrifice 3 years of work than suffer the Scarlet Letter foisted on me.    

Now some may say I'm in the wrong and list the myriad of ways a copyright holder can claim the exclusive right to distribute anything related to their "property."

Perhaps as things are now that's so but again I reiterate, this was not content that denied anyone their payday.

I like analogies so let's try one that is a little less ambiguous than a video of some geek clicking around a  Windows desktop for an hour...

Imagine you've just bought a brand new car.  It's the first one you've ever had and it's exactly what you wanted.  You're bursting with pride and want to show it off to all your friends and family on the Internet. 

So you record a video, spend hours editing it till it's perfect, upload it to YouTube and send everyone a link who cares to have it.

A month goes by and suddenly your video gets a takedown notice and you get a copyright strike against your account.

Why?  Because the manufacturer of your brand new car claims that they have the exclusive right to any  exhibition of it. 

Seem ridiculous?  It is but that's how the copyright system currently works.  All an "owner" has to do is make a claim and YouTube will dutifully begin prosecuting you.

Which is why I've deleted the channel and removed all the content.

It's bad enough that Google's acquisition of YouTube has resulted in the mass suffering of its users by herding everyone into Google Plus whether they wanted it or not.  

Add in constant attacks by prepubescent teens and quasi-sociopaths determined to destroy your self esteem and your dreams of PewdiePie fandom soon evaporate.

All of that I can deal with.  When you put your stuff out there for all to see you learn to develop a thick skin. 

But when I get branded as a criminal with YouTube as proxy Judge, Jury and Executioner to pass "sentence" it's a step too far. 

YouTube's copyright enforcement system is flawed, ambiguous and to my mind designed that way.  

Hiding behind the shield of "Safe Harbor" they fail to define what constitutes an "infringement" in order to profit off the legitimate work of millions of YouTube creators.  At least until such time as someone makes a claim against you be it legitimate or otherwise.  Leaving a bewildered user base potentially branded as criminals without recourse.

This is one content creator that's had enough.

I'm tired of the constant badgering of copyright trolls with YouTube's blessing and no recourse.  I'm tired of finding my videos mysteriously losing monetization without warning or reason.  I'm tired of YouTube's flawed "ContentID" system throwing innocent users into copyright disputes based on false positives. 

But ultimately, I'm just tired of participating in an abusive relationship.  

Or maybe I'm just tired of writing about A-holes...


UPDATE!

Apparently I wasn't the only one getting screwed over by Microsoft and thousands of other YouTubers including some Microsoft employees suffered the same treatment at the hands of a 3rd party marketing agency called "Marketly." They decided to slap a takedown notice on just about anyone with "Windows" in their video's title.  

When I checked my account today, I no longer found a copyright strike although I'm unsure whether that was because I deleted the channel or the takedown was released.  I will risk uploading the same "offending" videos in a new channel focused on IT this week and see what happens.

It's about the content

In this age of digital media  the experts will tell you it's all about the content.  After almost two decades the novelty of the Internet has worn off and what was revolutionary is now the mundane.  Truth be told,  nobody promotes themselves as being online anymore, it's just expected that you are.   

And it seems everybody is.  From your grandmother to multinational corporations the Internet is awash in content.  It happened fast, so fast that traditional media can't keep up with the pace.  Content is no longer limited to a newspaper on your doorstep, a movie in a theater or a program on television.  A fact that the NBC Universals and Disney's of the world can't stand. 

In the 80's the advent of the VCR sent the Motion picture industry into a panic with then MPAA president Jack Valenti proclaiming, "Their (VCR manufacturers) only single mission, their primary mission is to copy coyrighted material that belongs to other people."

 The late 90's saw the music industry decrying the evils of digital music players.  Most notably the case of the RIAA versus DIamond Multimedia.  The RIAA asserted that the simple act of copying music to an MP3 player like the Diamond Rio even when restricted to personal use was a violation of copyright.  Fortunately the courts found it wasn't but the decision wasn't based on a rapidly outmoded copyright law but rather what comprised a recording device.

Succeeding years found both organizations  repeatedly claiming that new consumer friendly technologies threatened the fortunes of the entire entertainment industry. 

Of course history shows that it hasn't but not before decades of legislation had weakened consumer rights and made the whole concept of copyright law deliberately ambiguous. 

The result is an entertainment industry who views the public first as thieves and second as customers.  The concept of "Fair Use" frequently finds itself at odds with the entertainment industry who views any use not explicitly controlled by them as an infringement of copyright. 

For the uninitiated the doctrine of Fair Use is not so much a right (at least in the U.S.) as it is a defense when accused of copyright violation.  It's basically a four step criteria to measure whether use of copyrighted work is eligible for exemption from copyright law.  Generally the rule is that Fair Use applies to non-commercial or educational uses or commercial uses that can be shown to not diminish the original work.  There's more than enough room for interpretation, however, and that's frequently decided in favor of the copyright holder.

Which translates to a virtual flip of the coin any time your use of alleged copyrighted material strays into new territory. 

For example, upload a family holiday video to YouTube and you could find yourself on the receiving end of a copyright complaint if ol' Blue Eyes(Frank Sinatra) happens to be belting out  Silent Night in the background.  Even if you make the video private and accessible only to your family and not the general public you can still be considered in violation of copyright.

What's the definition of original content anyway?

 You may do a weekly video podcast but if anything in your video displays an element someone claims as copyrighted material you've suddenly lost your right to monetization under YouTube's rules at the least.   At the worst you can find your video removed and receive a "copyright strike." Too many of those and YouTube will close your account.

More than just an annoyance the entertainment industry has engaged in legal intimidation in an effort to protect an outdated content model.  Is there really a threat to a copyright holder's interest if someone uses a clip from their content in an entirely unrelated work?

What if you just want to make fun of copyrighted but publicly available content?  If so is it considered a parody or a satire?  Hint: One is covered by "Fair Use" the other isn't.   Most people don't even know there's  a difference but under copyright law there is. 

Even the alleged "New Media" succumbs to the pressure of the old guard.  When the Digital Millennium Copyright Act (DMCA)was signed into law in 1998 savvy ISP's lobbied for some degree of immunity by way of the "safe harbor."

They saw a future rife with litigation for simply operating a medium and wanted no part of it.  Safe Harbor holds ISP's and later content hosting services like YouTube  harmless in any copyright infringement claim.  So long as they don't actively participate in the infringement they get a pass.  Unfortunately content creators who run afoul of the DMCA have no such protections and have to rely on Fair Use defenses.

Now a bewildered public is forced to learn about words like "transformative"," derivative" and "Fair Use." 

And to think that all you wanted to do was to share a holiday memory with grandma on YouTube.

These are questions we shouldn't have to answer in a creative society.  The history of mankind is built upon the creative output of those that came before.  Without the wheel, for instance, there would be no automobiles  and transportation on the whole would be a very different if not inefficient proposition.

So should someone have patented the concept of a cylindrical object for the purpose of rotating around an axis ?   Perhaps but it should never have been expected to exist in perpetuity.  If such a patent existed it's entirely possible, for example, that we'd be controlling the direction of our cars with levers instead of that familiar direction control device we know as a steering wheel. 

The holder of the patent (or copyright) could prevent any use not explicitly under their control which would include anything that resembled or made reference to the wheel product.

That sounds ridiculous but is exactly what is happening with copyright law now.  No reasonable person would deny anyone the right to profit from their efforts .  The problem arises when protection of those rights subverts the very innovation that copyright sought to protect. 

Even if you never run afoul of someone else's copyright you still suffer the consequences. 

Why, for example, in an age of almost instantaneous access to information do we still have artificial limits placed on how we consume media?  The entertainment industry would argue that there's a minimum period of time necessary to protect their revenue potential.

That argument ignores the revenue potential afforded by alternate modes of content delivery.  A friend of mine recently posed a question to me.  He said, " Why do I have to wait months for a new movie to be available somewhere other than a movie theater?"

You know, I have to agree.  He brought up the fact that many people have home theater systems that could offer an excellent viewing experience.  To me, I'd rather see a new movie in the theater and I'm sure I'm not alone.  Nonetheless, I shouldn't be denied the option.

Seeing a movie in a theater is a "premium" experience and I'm willing to pay more for it.  However,  I'm not willing to support a business model rooted in the middle of the last century to get it.  There was a time when the only way to see a  first run movie was at a theater.  That's hasn't been the case for a decade now.  It's not about the technology it's about revenue.

There are very few cases where a 50 year old business model is relevant to contemporary markets but the industry doesn't it see it that way.

In some cases new entertainment content will go straight to online sources like YouTube, direct to DVD or even services like NetFlix.  So with alternate delivery mechanisms available do we really need so many theaters?

Should we be limiting our entertainment options based on nothing more than propping up an industry that refuses to respond to a new market dynamic?

I'd rather have a few really great theaters offering a superior experience than a lesser one from a business model that's groaning under its own weight. 

Remember we're still  talking about restricting content here.  In some cases, your content if someone deems it a threat to their copyright.  We're also talking about restricting your choices.  The least of which is your opportunity to use content  any way you wish

I've never been a fan of change for its own sake but when it comes to copyrights I don't have to betray that rule because change desperately needs to happen.