Fair use is complicated. Unfortunately for creators, for all of the good the DMCA has led to it has also forced platforms like YouTube to err on the side of caution or risk negative consequences. As a result, false copyright claims and takedown requests often leave creators on YouTube with few options. While they watch helpless, their channel loses monetization or in some cases is completely closed while these issues are sorted out. For bigger channels, this is less of an issue, as they often have a channel manager to ensure that the claims against them are handled quickly.
Smaller channels can have a difficult time getting a hold of someone other than an automatic response bot and an unresponsive claimant can hold a video “hostage” for 30 days simply by not responding. But for those who have been calling for some change, like the creator below, it appears help is on the way.
In the past few weeks, the YouTube community has rallied around creators like GradeAUnderA, I HATE EVERYTHING and the Nostalgia Critic, prompting a response from YouTube CEO Susan Wojcicki:
Thank you @YouTube community for all the feedback. We're listening: https://t.co/xLFmojjegI @GradeAUnderA @ChannelAwesome @IHE_OFFICIAL
— Susan Wojcicki (@SusanWojcicki) February 26, 2016
While lost revenue, blocked videos and closed channels are a major inconvenience, there is some hope that the efforts from YouTube can help alleviate the stresses false claims place on creators who rely solely on the site for income. At the same time, YouTube must protect their status as a “safe harbor” entity with respect to the DMCA. Being a “safe harbor” entity allows YouTube to essentially keep the site up and running in the manner we have all come to expect. Without the ability to be a “safe harbor” entity, YouTube and its creators could potentially face much bigger headaches.
What is YouTube Going to Do?
Based on their post in the YouTube Help Forum, it appears YouTube is at least trying to do right by the community and look into the issues created by false claims. While YouTube hasn’t “seen a big change in the overall rate of removals”, the size of the channels being impacted lately has given the community a fair amount of concern. Traditionally larger channels haven’t had to deal with these type of headaches as often. According to their policy team:
“The good news is that the feedback you've raised in comments and videos on YouTube and beyond is having an impact. It's caused us to look closely at our policies and helped us identify areas where we can get better. It's led us to create a team dedicated to minimizing mistakes and improving the quality of our actions. And it's encouraged us to roll out some initiatives in the coming months that will help strengthen communications between creators and YouTube support.
We'll also make improvements to increase transparency into the status of monetization claims. And of course, as we work to implement these improvements as quickly as we can, we'll continue to take your feedback seriously.”
What Should YouTube Do?
The biggest thing YouTube can do to alleviate this issue is to put more manpower behind manually reviewing claims. A move like that does require a certain level of production from creators to generate the revenue to justify the people supporting them, which also requires YouTube to get better CPMs on ads or find additional success through programs like YouTube Red. The reality is that smaller creators will likely continue to struggle with false claims and that any changes they make will most likely serve the larger channels.
A change that could positively impact the situation is instituting harsher penalties for false flagging and false copyright claims. I’ve heard all sorts of suggestions, but the penalties most often mentioned forget one thing, the content owners always have a right to defend their content. YouTube can’t remove that right, even if they have made false claims. But one thing they can do is institute a system that puts the onus back on the claimants if it can be proven that they abuse the system. In that case, I would suggest YouTube require all of their claims be reviewed manually for a period of 30 days (escalating if abuse continues) and that the claimant be charged for the administrative burden if abuse continues beyond a certain point.
The final issue is probably the biggest for creators, the money. When a video has a claim levied against it, the revenue generated should not be lost. The early view push from subscribers can often generate the biggest chunk of revenue for those with a large audience. That revenue should be held in escrow until the dispute is settled. At that time, the revenue should either be refunded to advertisers or given to the party who won the claim.
How to Protect Yourself as a Creator
One would think and hope that YouTube was a bastion of free speech. It is to some degree but the truth is that the best course of action is to express yourself without the use of somebody else’s content whenever possible. Using only original content in your videos drastically reduces the chances of being flagged for infringements.
I am constantly asked by new creators how much of a popular song they can use in their videos, how much of a clip they can feature and the simple answer is none of it. Any time you use another company or individual’s content in your video you increase the chances of it being hit with a claim. Certainly there are some guidelines that can be followed that allow use in some cases, but even properly used content can get automatically flagged in the current system. As yourself if what you are doing can be done without the use of somebody else’s content. If it can, avoid using their clips or their audio.
I have no personal illusions that the changes coming from YouTube are going to completely alleviate this issue. The fact of the matter is that there is far too much content to be reviewed manually every time and YouTube has their hands tied by their need to remain a “safe harbor” entity with respect to the DMCA. I have hope that YouTube’s response to this issue will be a positive one for the community, mostly because it has to be. While they are clearly still top of the heap in video, their competitors will be quick to scoop up disgruntled talent if this isn’t properly addressed.
Are you a creator that has been affected by a false copyright claim? Let us know in the comments below.
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