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It all started with a dancing baby.
In 2007, Stephanie Lenz uploaded a video of her toddler dancing in the kitchen, Prince’s “Let’s Go Crazy” playing in the background. Eight years later, that dancing baby set a new standard for how the Digital Millennium Copyright Act (DMCA) applies on services like YouTube.
DMCA was the first amendment to copyright law since 1976, when VHS was still a brand new technology. The 1998 DMCA was an attempt to bring copyright into the digital age by protecting service providers from liability, as well as applying the laws of copyright more clearly in digital situations. Those rules have been tested by the courts repeatedly in the intervening years, most recently in September, when the United States Court of Appeals for the Ninth Circuit affirmed a lower court ruling in favor of Lenz, and held that prior to issuing a takedown under the DMCA, the copyright holder must consider fair use applications.
The court ruling may seem like a win for creators and YouTube alike, but five months later, YouTubers are facing a frontlines fair use battle all their own, one that they say allows copyright holders to exploit the system and cripple the income of people making a living on YouTube.
For Channel Awesome, an online production company that focuses on satirical media commentary, copyright complaints have become a daily occurrence. The channel frequently posts analyses and reviews of copyrighted films, and its videos often show up higher in search results than the pay-per-view options of the movies being discussed. It’s not the only online publisher following this model, with other channels like CinemaSins or WatchMojo posting the same sort of videos. These channels all have another thing in common: copyright complaints that hinge on fair use doctrine.
There’s no clear definition of how much is too much.
Fair use allows for limited use of copyrighted material without permission for specific circumstances, as dictated by a four-part test. In the case of pop culture commentary on YouTube channels, their work often falls under either parody or criticism, akin to when a journalist quotes sections of a work in order to critique or explain it. However, on a medium like YouTube, each view of that work, with the small bit of copyrighted material included, earns the uploader money for the display of that material. If too much of the copyrighted material is included in the video, YouTube diverts monetization to the original copyright holder.
However, there’s no clear definition of how much is too much, and that confusion can often result in crossed wires on how to proceed for content creators. In WatchMojo’s case, the channel was temporarily deleted in 2013 due to DMCA claims. Ironically, some of those claims were initiated by Fox, which, through another department, regularly asks WatchMojo to promote the network’s shows on its channel, according to WatchMojo founder Ashkan Karbasfrooshan.
Little has changed in the intervening three years. Just like Karbasfrooshan chose to speak out, the voices behind Channel Awesome finally became fed up with their endless cycle of Content ID claims and DMCA notices when a suspicious strike cut off all paid ads on the channel. Feeling ignored by the system and fearing their inaction would crush their company, Channel Awesome took action, launching a campaign that’s drawn attention on and off the platform.
23 days without income
On Jan. 5, Channel Awesome recieved a strike on its channel, YouTube’s way of denoting that a DMCA claim has been officially registered. This was nothing new; the channel faces these issues often. In this case, Studio Ghibli issued a DMCA notice in response to a My Neighbor Totoro review, posted as part of Channel Awesome’s Disneycember series. Under normal circumstances, channels with a single strike are limited to uploading 15-minute videos to prevent pirating full films. But as the Channel Awesome team geared up to fight the notice, as the system allows, they noticed more limits on the account. All their monetization across the channel had been turned off, as well as several other partner features. For 23 days, they couldn’t earn income on any videos from their 400,000-plus fans. On Jan. 28, they outlined the issue in a video helmed by Doug Walker of Nostalgia Critic.
“Just as we make money off of YouTube, YouTube makes money off of us,” Walker said in the video. “We were in a situation we were forced to accept, and we accepted it because the rules were in place and they seemed to follow it. But now they’re not even following their own rules.”
“We were never given a straight answer of what caused our account being perfectly fine, to having one strike and having every penalty imposed upon our account up to deletion, even when one strike is supposed to be a warning,” Channel Awesome CEO Michael Michaud explained by phone to the Daily Dot. “We had no money coming in for 23 days until that got resolved, so we had to go public because we were told it could be three to six months. Three to six months for a company where YouTube is a good chunk of our revenue—it’s going to kill something. Six months and we’re done for sure.”
Just a day later, they returned to their channel to say their entire issue was cleared up. They can’t say if it was because of the public outcry or a coincidence, and YouTube declined to comment on the record on the details of this case.
An individual battle may have been won, but the war is still raging. Channel Awesome has decided to start a broader campaign to try and implement change in the system.
What happens with a DMCA claim
DMCA claims and strikes are the highest level of escalation in YouTube’s copyright system. At the lower levels, the Content ID system is used to assess copyright claims on a video. It’s YouTube’s unique system that allows copyright holders to upload content, which is then automatically checked against all uploaded videos. Copyright holders can also do manual checks, normally in the form of companies searching for titles or terms from copyright-protected materials and issuing Content ID claims against videos accordingly.
When copyrighted material is flagged, copyright holders have several options, including blocking the video worldwide or redirecting all ad revenue to them instead of the original uploader. YouTube uses several signals to determine if DMCA complaints are coming from legitimate rights holders to help eliminate abusive complaints. Any partners found abusing these tools will have their access to the tools disabled, and repeat offenders risk having their accounts terminated. If a complaint is deemed legitimate by YouTube, the platform notifies the original uploader, who then has a chance to challenge the complaint. The copyright holder can then counter, and if the original uploader challenges it again, it escalates to the DMCA level, where the copyright holder must take legal action.
YouTube copyright issues can also bypass the Content ID stages and start directly at a DMCA level with legal notices. At the point of a DMCA complaint, YouTube is obligated to remove the offending material during the process to comply with the safe harbor provisions. Safe harbor, like the nautical term it invokes, provides a set of conditions that protect service providers like YouTube from liability in copyright claims. Once they have knowledge of a material that is potential copyright infringement, they would be in violation of safe harbor if they allowed that materials to continue on their servers.
Though not part of the DMCA requirements YouTube’s policies also institute a “three strikes and you’re out” system: At the outset of the claim, YouTube automatically issues a strike against the accused YouTube channel. If the copyright claim is eventually resolved in favor of the original uploader, that strike is removed. If you collect three strikes at one time, your account is terminated.
For creators like Channel Awesome, having DMCA guidelines in place isn’t generally a problem. But what is a problem, Michaud says, is the increase he’s seen in claims coming against creators who are using materials under fair use.
“Why are we penalized before we’re deemed guilty?”
“[Copyright claim] seems to be happening at a much more alarming pace,” said Michaud. “I think we have 11 claims pending in our account, and you can only really fight two at once. It’s a process that can take upwards of three months for you to get a video clear.”
Due to the “three strikes” rule, channels are only allowed to fight three appeals at one time. At Channel Awesome, they only fight two at once because if they fought all three and lost all three, they’d immediately lose their channel. Michaud knows Google is required to remove videos when it receives a DMCA notice, but he doesn’t understand why strikes are automatic instead of delayed until after the full decision is determined between both parties.
“Why are we penalized before we’re deemed guilty?” Michaud asked. “The strike shouldn’t hit the account until it’s been resolved in favor of the creator or of the studio. Google can still take the video down—that’s what they have to do to follow the safe harbor provisions—but they don’t have to issue the strike.”
How digital copyright works
DMCA pre-dates YouTube by a long shot. It was initially implemented in 1998 to protect websites from being held liable for copyrighted material uploaded by users. In previous iterations of copyright law, the copyright owners were dealing with older forms of media, and there was less transformational creativity.
“If the copyright owners had a problem with a TV station’s or a newspaper’s or magazine’s use of their clips, they had to sue the TV station (or send a strongly worded letter and resolve it on their own),” wrote Stacey Lantagne, assistant professor at the University of Mississippi School of Law, to the Daily Dot. “But that wasn’t such a big deal, because the scale of creativity happening was minute compared to how much the Internet exploded creativity. Plus, generally everybody was in the big media club together, so I just get the sense that there was less disagreement.”
While much of YouTube’s system exists to fulfill DMCA requirements, the fair use zone that movie reviews like Channel Awesome falls into is a much grayer area of the law.
“Traditionally, movie and television reviews have, however, been considered fair use,” wrote Lantagne. “It may be a complicated doctrine, but generally clips for the use of a review have been considered OK. We protect, under the statute, commentary and criticism, which reviews appear to be, so you’re generally OK, as long as you don’t take more than is necessary from the copyrighted work. Which is another question unto itself.”
YouTube reviews, however, often skirt the line of parody or satire, which is a much more complicated area of fair use.
“To a court, a parody is something that makes fun of another work; a satire is something that makes fun of society in general,” explained Lantagne. That means parodies borrow from the original work to be effective, while satires do not and are therefore not protected under the law. “The parody/satire distinction is a weird one that’s been criticized by lots of people, because the line quickly becomes difficult to draw. My class and I just discussed the Adult Wednesday Addams series: parody, or satire? Is she really making fun of the Addams Family, or is she just making fun of society?”
YouTube pledged in November to help fund the defense of creators in fair use legal challenges.
All the Adult Wednesday Addams episodes were removed from YouTube in April 2015 for copyright violations, and despite an update in June by creator Melissa Hunter saying she hopes for them to return, they’ve not reappeared on her channel. Overall, YouTube has one of the most robust systems to protect both creators and copyright owners alike. Other platforms like Facebook, where copyright infringement in the form of freebooting runs rampant, offer little to no protections for copyright holders, be they major motion picture studios or prolific YouTubers. Tumblr, which is fueled massively by sharing copyrighted materials, tends to delete blogs or content first and ask questions later when faced with DMCA takedowns. Twitter, plagued by stolen tweets, especially in the world of comedy, is responding to DMCA takedowns but action is so far rare.
By contrast, YouTube pledged in November to help fund the defense of creators in fair use legal challenges (in select cases). Still, for YouTube creators seeking a definitive answer on what is protected and what isn’t, there’s no clear resolution in sight.
“I think people are trying to be professional, they are trying to go the professional route, but that route isn’t working and nobody knows why,” said Michaud. “They have to come out and talk about it. This is not a once-in-a-while thing. And it’s getting worse. The idea of [the DMCA] was to protect creators or businesses, but now it’s clearly harming creators or businesses.”
What creators want
While the definitive fair use guidelines might be hard to come by, Channel Awesome has other, more concrete complaints about YouTube policy. Their chief concern is the fact that, in the time between someone making a copyright claim in the Content ID system and the time a channel might successfully dispute the claims, any money that is earned on ads for that video goes to the copyright claimant, regardless of the resolution of that dispute.
For YouTube’s part, once a dispute occurs, YouTube suspends all forms of paid ad on the content so no one makes any money until the dispute is resolved. Opponents of that policy suggest the money be put in a side account and only doled out when a counterclaim is made. There’s not legal precedent, according to Lantagne, for money to change hands before a settlement is made, at the determination of a court, not a company.
“I can’t really think of situations where a court would explicitly allow money to be given to another party before a judgment had been made,” she said. “Courts do it, and it might happen in private settlement between the parties, but we don’t normally allow money to be taken from someone and given to someone else without court order or previous agreement.”
Channel Awesome also takes issue with the part of ContentID that allows the copyright claimant to globally block the video. This does not actually remove the video but makes it invisible to users.
“It’s literally a strike without a strike,” said Michaud. “They’re getting the effects of a DMCA claim. If a DMCA claim happens, the video is taken down and you can’t watch it anywhere. A global block is the same thing. There’s too many options they have. To be able to globally block a video without going through the legal proceedings is unfair.”
Michaud emphasized that their issues are not with YouTube, but with the system in place.
“It’s getting to a point where it’s doing so much more harm than it is good.”
“The copyright law needs to be revised, and it needs to account for the Internet,” he said. “YouTube is still young, it’s still growing, it’s still learning, and you have a bunch of people now who can have their voice be heard and making a living off entertainment.”
“I don’t think they were thinking people could make money on this. I don’t think they were thinking piracy would be as big an issue as it is,” said Walker. “It’s understandable why some of these rules would be put in place, but now it’s getting to a point where it’s doing so much more harm than it is good. … I don’t think [YouTube] is trying to be unfair on purpose; I just think they were thrown in the middle of all this and they’re trying to figure out how to fix this.”
Michaud and Walker wouldn’t elaborate on their next steps to petition for change in the YouTube system, but they did point out that several other creators have stepped up in the comments to tell their own stories and show their support.
“The focus this is to show this is not a small problem anymore,” said Walker. “This should be made a bigger priority.”
For the fair use consideration to change at a higher level, cases like Lenz vs. Universal would need to appeal to the Supreme Court. Barring that, her son, and many other babies on YouTube, will dance on. But for every one-off case won in the battle against fair use, creators like Channel Awesome will fight a slow slog until something changes with YouTube’s implementation of the DMCA.
“Last night we got noticed that two claims were released, and this morning I woke up and two new claims were in its place,” Michaud said.
Screengrab via Channel Awesome/YouTube | Remix by Jason Reed
A former YouTube reporter for the Daily Dot, Rae Votta has more than a decade of experience in the digital and entertainment industries. Her work has appeared on AOL, Huffington Post, Out Magazine, Logo, VH1, Current TV, Billboard, and NYMag. She joined Netflix in 2016.