Volume 11, Number 4: My Thoughts on the YouTube Copyright Strike System

On February 26, after more than 3.5 years of being banned from YouTube for multiple copyright infringement violations, I finally got one of my three "copyright strikes" removed.¹  In short, I got my account back.

For those of you who remember those uncensored Kitchen Nightmares videos I used to post to that account, I have bad news: You will never see them again because they are a big reason why my channel got taken down in June 2012.  My copyright strikes were all based on legitimate complaints, each from a different copyright owner, and in each case, none of the content was my creation.  I apologize to all three owners (Viacom, NBA Properties and ITV Studios Inc.) for sharing content that was not mine to share.

I recognize that YouTube faces challenges on two fronts: It wants to be a major media platform, especially for new content creators, but at the same time, it has to fight against the piracy that plagued it during its early years.

With that said, the way YouTube addresses copyrighted material has room for improvement.  Earlier this month, Doug Walker (The Nostalgia Critic) discussed a number of shortcomings in the current copyright claim/strike system in his Where's The Fair Use video, along with Alex of I Hate Everything (IHE) and Adam Johnston of Your Movie Sucks. These three YouTubers have a combined total of 1.3 million subscribers.  The two biggest shortcomings are summarized below.  For your convenience, Doug's video is embedded right below them.

• Lack of fairness.  At present, claimants making false copyright claims have far more power than defendants who have evidence supporting their claims of fair use (a legal doctrine that permits limited use of copyrighted material without acquiring permission from the rights holders).  Johnston pointed out that claimants can make unlimited claims while defendants are limited to no more than three appeals.  Walker added, "There are no penalties for companies creating false claims or strikes," and there should be.  (UPDATE 3-2-16: Yesterday, two other critics, Bobsheaux and TheMysteriousMrEnter, posted videos about takedowns; the latter stated that he cannot appeal the claimant's takedown request until after the video is taken down on March 8, at which point he will be given a strike, and that is also not fair, seeing as the claimant didn't have a waiting period.)
• Lack of human interaction.  YouTube is relying more on automated processes in its fight against piracy.  This leads to a lot of videos automatically getting removed regardless of whether the claim is well-founded or not.  The recent rash of copyright-related takedowns may have been the result of changes to an "abuse algorithm" that went haywire and overstepped its bounds.  Compounding matters further, when creators try to appeal claims and strikes, they are often met with useless auto-reply e-mails.  Alex of IHE said, "The automated e-mails and forms seem designed in such a way that no human working at YouTube will ever actually see them. ... There was no one I could contact to fix a very, very simple problem."

I like two other suggestions Doug Walker made, starting at the 11:39 mark of his video:

• The first is related to the ad revenue a video generates.  Right now, when a copyright claim is made, the claimant can take and keep that revenue--even if the claim is false.  Walker suggested that the money instead be put into an escrow account pending the resolution of any counterclaim (so that if the claim is not valid, the money would go back to the video's creator).
• The second is having a grace period so that in the event that the user who posted the video has a counterclaim, they are not immediately penalized.

I'd like to add this gripe I have with the current system:

• Lack of consistency.  Users who receive a second copyright strike are made to watch the YouTube Copyright School video, which takes more than 4.5 minutes to talk about how posting content you don't own is wrong.  At the 1:37 mark, the narrator says, "If YouTube receives a valid notification of alleged copyright infringement from a copyright holder for one of your videos, the video will be removed in accordance with the law."  Based on what's gone on recently, YouTube's automated processes are handing out claims and strikes without verifying the validity of the allegations behind them, and without taking Fair Use into consideration (as they should per the Lenz v. Universal ruling last year).  So what's going on now is not consistent with that Copyright School video statement (and the video itself needs to be updated anyway, since it was produced in 2011, more than four years before the Lenz v. Universal ruling).  Another inconsistency I find is that there are still plenty of unauthorized postings of entire movies and albums on YouTube, yet critical reviews and parodies seem more likely to get hit with claims or strikes (even though the latter examples fall within fair use and the former examples don't).

YouTube should receive this message loud and clear: Don't leave judgment calls to computers.  They wanted to make it easy to support new and independent creators while still keeping piracy at bay, but automated processes are not the be-all, end-all answer.  Software engineers need people to test programs for errors and give feedback on functionality, sporting events need officials to make sure the game is being played fairly and cleanly, manufacturers test products for safety and functionality--I could go on and on.  Point being, human intervention is still necessary.  YouTube needs people to review and judge allegations because its software, while efficient at identifying non-original content, haven't been all that effective in distinguishing piracy from fair use.

What YouTube doesn't need, as Walker noted in his video, is people who "see change as too hard or too much work, not willing to put in the effort to do what they know is right."  This reminds me what J.K. Rowling said in Harry Potter and the Goblet of Fire about the choice between what is right and what is easy.  Sometimes doing what's right isn't easy, but that doesn't excuse you from putting in the extra effort.  Above all, no one should ever place people's rights arbitrarily in the virtual hands of algorithms.

One more thing I'd like for YouTube to consider is giving harsher penalties for large amounts of infringing content (like a whole movie or album).  Most states in the United States assign varying amounts of points to driving violations (e.g. six for driving drunk, two for going 10 miles per hour or less over the speed limit).  Giving the same one-strike penalty to someone who posts a scene from an old TV show as to someone who posts a recently-released feature-length movie doesn't seem right.

In closing, I'd like to thank all the critics featured in the Where's The Fair Use video, especially Doug Walker and Alex, for fighting not only a good fight, but a very important one.

And to you, the reader, thank you for your time in considering the issues discussed in that video and here in this blog entry.

¹ In case you were wondering why it took me so long to get any of my strikes removed, here's what happened: In 2012, I had two strikes and was waiting on the second strike to expire when I got hit with strike #3, which led to my YouTube channel being shut down.  That put me in a catch-22--I needed to make a successful counterclaim against any of my three strikes just to get my YouTube account back, but I needed my YouTube account in order to access the counterclaim webform.  Recently, however, I learned that YouTube now allows you to make a counterclaim by using e-mail, as explained at this link.  This e-mail counterclaim method allowed me to bypass the run-around I had been getting in 2012, and I was able to get NBA Properties to remove my second copyright strike.  Thank you, NBA Properties, for your understanding and cooperation; and thank you, YouTube, for getting rid of that damn catch-22.