Platforms And Due Process

Today I had my first Content ID claim on Youtube, for my most recent #livestreaming video about the #orthoverse. Don't worry if that sounds intimidating, because I am not concerned.

So what is a Content ID claim? Is that even a thing?

Well, a Content ID claim is like a copyright infringement suit, namely that you are accused of having used the intellectual property of another without permission, and are being held accountable for that. Except for one thing - it doesn't involve lawyers, judges, and a court case to determine the facts and resolve the situation. Instead, it all takes place within the ecosystem of YouTube.

Do androids dream of electric lawsuits?

The majority of copyright infringement notifications are now automated.

Yay! Who doesn't like a Silicon Valley behemoth or an algorithm deciding their fate?

It is likely that the claim that "the music in your video violates the #copyright of a song owned by the Warner Music Group (alledgedly)" was generated by some AI code run by YouTube, but it's not clear from the notice of infringement. However, I see nothing stating that WMG personally considers my video to be infringing.

That means that the accusation probably wasn't even brought by the copyright owner!

I had to browse through all the documentation that YouTube provides to understand what is going on, and read between the lines, because they do not go out of their way to clarify the motivations behind the process.

Or indeed that it is a process that YouTube has put in place.

The new people's court

YouTube makes it sound like it is "serious business legal", but for now it is not a true legal activity, even though it is couched in legal language.

It is an exercise of corporate power, backed up by YouTube's terms and conditions, and the control that they exercise over their platform and hence the content that I have provided to and the time I have sunk into that platform. They have leverage because I have spent years building up a following on their platform through my hundreds of videos about blockchain. And I don't want to lose that following, or the 300€ a year I make from their YouTube Partner monetization scheme, do I?

And it is also an ass-covering exercise of corporate power.

Presumably, as a large and successful social media platform, YouTube wants to avoid any potential costly involvement in copyright infringement suits that might be brought by equally large and successful music companies. Safe harbor provisions only apply if the communications entity is taking reasonable steps to safeguard the rights of intellectual property owners. So they scan videos to see if they contain music clips owned by those labels.

And then they send out the equivalent of automated take-down notices. Except, they're automated "we will take the money you are supposed to get and give it to someone else" notices.

It would be interesting to know if they are also scanning all the videos on the platform to see if they contain infringing clips of my music, or the music of other hobbyists. I doubt it.

Incidentally, it is clearly a false claim, because the music I use in my videos was written and recorded by a band I was in twenty years ago. I have an agreement that states that I can use the music for my own purposes, and that any proceeds are to be distributed fairly. Yes, even back then I was concerned about property rights. As the ex-band members are still my friends, and we've made $1.98 so far in royalties, I doubt that they have any complaints (that reminds me, Vorn - I owe you eight cents).

Marching to a different beat

I can hear that the drum intro to the song I used ("Keep Me Alive" by Callow Joke) sounds vaguely similar to the intro to the song that I am claimed to be infringing ("Cry For Freedom" by White Lion), but the rest is completely different, both lyrically and musically.

As a side note - you can't copyright drum beats, much to the regret of Gregory Coleman, the drummer who wrote the Amen Break (since sampled over thousands of times in songs that have probably made hundreds of millions of dollars in aggregate for the record companies).

Coleman died homeless and penniless.

Automatic for the people

But back to the content ID claim. If you do not respond to such a claim, then any money you make from the video goes to the allegedly infringed party.

If you dispute the claim and your dispute is rejected, your Youtube channel may well be deleted.

Even if you subsequently prove in a genuine court that YouTube's 9 ¾ Judicial Circuit ruling was wrong, there is no obligation for them to reinstate your channel.

Automation means that a lot more infringement notifications are being sent out, and large corporations are benefiting from this at a cost to our creative society.

• They can afford to set up such automated infringement notification systems
• There are no penalties for getting it wrong (technically, there might be small penalties, but in practice, there are none)
• The average person is very likely to be intimidated by such notices and stop what they're doing, even if they're doing nothing wrong, to the detriment of future creativity, so the "civilian casualties" are high
• The notices do not waste any of the time, and very little of the money, that these corporations have, but they do waste a lot of the time of ordinary people
• As a bonus, through social media monetization schemes they scoop up free income

So how can we solve this?

Speak a language they understand

I have one simple solution - an automatic fine of $1000, transferred to the unjustly accused. If not paid promptly, the fine to be multiplied by 100 plus costs awarded if a court case determines that automated infringement notice was false.

That might make corporations pay more attention to getting these notifications right, because the only thing that a company truly pays attention to is things that hit the bottom line. That's why we regulate them. Supposedly.

(Incidentally, this is not the first brush that the Orthoverse has had with an unjustified automated notification of copyright infringement. And, no, we haven't heard anything back from Mojang since we a) moved our website out of the dominion of automated DMCA take-downs by switching to a web server provider that has no offices in the USA and b) set up a limited liability company to shield us from this nonsense. No surprises there though.)

Coda

I would like to end this article with a quotation from a song that I think is pertinent to the matter discussed above, and thus hopefully is covered by section 107 of the US copyright act on fair use:

So stand up and cry for freedom

And keep the dream alive

Yep, that's from Cry For Freedom, by White Lion.