By Corynne McSherry, Staff Attorney and Kahle Promise Fellow with the Electronic Frontier Foundation, which champions civil liberties in the networked world.
Digital right advocates have long worried that use of content filters on user-generated content sites such as YouTube, ostensibly designed to identify and allow easy removal of copyright-infringing works, would necessarily result in the removal of legitimate music and videos. It’s not hard to see why: machines have a hard time discriminating between an identical copy and a transformative remix.
In the past few months, those fears have become a reality. As a result of a dispute between Warner Music and YouTube, Warner has set YouTube ‘s “Content I.D.” filter to remove all videos identified as containing any Warner music. (For more than two years, Warner permitted these uses and silently shared in the advertising revenue for the videos that included a "match" to its music.) As a result, thousands of videos are being disappeared from one of the Internet’s most popular and accessible arenas. In fact, according to statistics kept by YouTomb, there were twice as many videos removed from YouTube in January 2009 as in the entire previous year combined.
The censored videos include:
· A homemade instructional video by a sign language teacher that used a Foreigner song, “Waiting For a Girl Like You,” in the background;
· An a cappella tribute to film score composer John Williams;
· A series of very funny “literal videos” in which the creator has rewritten the lyrics to 80s-era music videos to match the actual visuals (happily some of these are still available on another site);
· Multiple homemade videos by amateur musicians (aka the “Living Room Rock Gods” or LRRG) intended to teach other amateurs how to play their favorite songs;
· A parent’s video of a 4-year-old lip-syncing to another Foreigner hit, “Juke Box Hero.” (Pictured below.)
These videos are clearly non-infringing fair uses. For example, the Juke Box Hero lip-sync is a transformative, noncommercial video that does not substitute for the original song, and there is no plausible market for "licensing" to parents the right to video their own children lip-syncing. There is no infringement and no reason for being censored off YouTube, except irresponsible, mechanized over-enforcement by Warner Music.
Improper takedowns on YouTube are not new. For example, during last year’s election season, both presidential campaigns had parodic campaign commercials taken down from YouTube because they incorporated footage from network newscasts. The problem is getting worse, however, with the deployment of automated tools, such as YouTube’s Content I.D. system, that remove content without bringing a human into the loop.
Although YouTube users can dispute Content I.D. takedowns (as some of the LRRG have,) many are afraid to do so. Challenging a dispute could invite a lawsuit, and a loss could put the user on the hook for statutory damages and even attorneys’ fees. However unlikely—it’s hardly in the interest of a copyright owner to sue a creator who has engaged in an obvious fair use, and we’re not aware of any content owner ever suing an individual YouTube user over a remix video—that is a chance that many people aren’t willing to take.
Warner has attempted to disclaim responsibility, claiming it simply identifies “unlicensed tracks” – YouTube takes them down. YouTube, for its part, acknowledges its users “disappointment” and leaves them to file formal disputes or swap in a new song—the latter option being a poor one for all of the videos identified above.
Enough finger-pointing. This is copyright-as-censorship at its worst and it must be stopped. First, YouTube must fix the Content I.D. system so that it does not remove videos unless there is a match between the video and audio tracks of the work alleged to be infringed. Second, Warner should use the filter solely to identify infringing works, bringing a human into the loop before videos are taken down. That’s the only way to ensure that the fair use “dolphins” can be pulled from the takedown dragnet. If Warner won’t take that reasonable step, it should at least promise that no one will be sued for simply challenging a Content I.D. removal. Warner loses nothing with this promise: even after a user files Content I.D. dispute, Warner still has the option of using a formal legal notice under the Digital Millennium Copyright Act to remove videos to which it really objects. But fair users will gain something crucial: reassurance that they can raise the red flag without finding themselves in the middle of an expensive and unexpected lawsuit.
Until these steps are taken, YouTube’s potential as a platform for free speech and new creators will remain unrealized.