Wednesday, January 28, 2015

The Dark Side Of YouTube

It’s no secret that copyrighted content gets illegally uploaded to YouTube daily.  Many of these videos are completely harmless (fan-made music videos, bedroom sing-alongs, etc).  However, few realize that copyrighted content is also being illegally monetized on YouTube daily.  This occurs when someone naively (or not so naively) monetizes their upload of a 3rd party work, but it also occurs in a far more troubling way: the systematic monetization of every upload of a 3rd party work via YouTube’s Content ID System.  

If you’re unfamiliar with this system, basically a content owner can have their material scanned and digitally fingerprinted, and then that fingerprint is compared against all of the content available on YouTube.  When a match is found, the content owner can choose what to do about it - monetize it, block it, or do nothing.  While the system is a boon to content owners, it’s not without pitfalls; content can be mismatched (e.g. your personal home video of a thunderstorm gets matched to a song by some band you’ve never heard of), and in the reverse, content can be accurately matched but to the benefit of illegitimate parties with no actual legal claim to the material (e.g. your original work is said to be owned by someone else).  Although YouTube provides users with the option to dispute a claim, the dispute process is narrow in scope - if a video you uploaded has been falsely or wrongly claimed by another party, you can only dispute the claim as it pertains to your specific upload of the material…you cannot dispute the claim or claimant on a system wide level throughout YouTube.

Last year, I happened to click into a video uploaded to my personal YouTube channel - this is a video containing my original song as audio, with the associated album artwork as the visual component - lo and behold, an advertisement pre-roll began to play.  Hmmm that’s odd, since I don’t have monetization enabled on any of my videos.  Let me go and check to see if I have any copyright notifications in my account.  Oh look at that, I do.  I wonder how long that’s been there (the video in question had 700k views)…and I wonder why YouTube never sent an email to inform me that a copyright claim has been placed on my video (seriously YouTube, you send me an email every time a person daydreams about one of my videos, you can’t send an email when a copyright claim is made?).

The copyright notification stated that a section of my song had been matched to someone else’s recording, and it listed the title of that recording and the company that administered it.  I searched the title on YouTube and discovered that this person had sampled my song within their recording.  So in addition to sampling my song without permission, they evidently also submitted their recording to YouTube’s Content ID System, which then flagged my content - the content they illegally sampled - as matching their content!  You’ve got to be kidding me.

Time for me to dispute this claim.  Click “dispute”.  Reason: I own 100% of the copyright to the sound recording and composition.  

Ok, got that taken care of.  Hey, wait a second.  If YouTube’s Content ID system flagged my upload as matching their content, then it would flag other 3rd party videos containing my song as well (e.g. “fan videos”).  Although YouTube does instruct a copyright claimant to review the video and reference material when a match is disputed, there is nothing obligating a bogus claimant to remove their content from the Content ID System.  In other words, if someone utilizes the Content ID System to falsely claim copyright to my song (whether the result of honest oversight, or because they’re assholes), even when I dispute the claim, I’m only disputing the specific match against my specific upload - there is no way to dispute the legitimacy of the Content ID Asset (the reference file) being used to match the content in the first place.  So despite my successful dispute, all other 3rd party uploads of my material will continue to be monetized by this bogus claimant, unless those 3rd party uploaders also dispute the match (which they won’t, since they never got permission to use the material to begin with, and will probably assume the source of the claim is the legitimate owner anyway).  

And best of all, whatever money the bogus claimant and YouTube have earned from the illegal monetization of my copyrighted material remains in their pockets, even after a claim is successfully disputed.  That’s right - apparently you can use the Content ID System to hijack content you do not own, monetize that content indefinitely until your claim is disputed (if it ever is), and then keep the money that you unlawfully earned up until the dispute occurred (along with whatever money you continue to earn from undisputed claims)!!!

Oh, and by the way, it’s not just recordings that can get hijacked - it can be the composition as well.  I encountered this a few months after the above incident, when the Content ID System flagged another original song of mine as matching someone else’s song.  Again, I was being told that my song wasn’t my song, but rather this other party’s song, which was stated to be administered by “one or more publishing rights societies” (thanks for that detailed information YouTube).  Here too, I didn’t even find out about it until I happened to click into the video and saw the ads appear (so who knows how long it was being monetized for - the video had 385k views).  And here too, I disputed the claim successfully, but other 3rd party videos of my song were still being monetized by this party (as confirmed to me by more than one uploader of such videos) - and FYI, one of these 3rd party videos had over a million views.

I sent an email to about this matter, which stated in part:  “I had assumed that after disputing the claim, all relevant matches would become terminated...but this is not the case.  So how do I prevent this party from continuing to unlawfully claim and monetize my content on YouTube?  Can you provide me with the name and contact information of the party responsible for this claim, so that I may follow up directly with them?”

I never received a response.

Wonderful.  So what can I do about this?  I suppose I could search for all 3rd party uploads of the song in question, and then issue DMCA takedown notices (compulsory notices obligating YouTube to remove content from their service) for all of the videos that are being monetized (I have no objection to nonprofit and non-commercial use of my material on YouTube, so I would leave that alone).  Except then I would be jeopardizing the YouTube accounts of fans who were simply celebrating and sharing my music, or who intended to harmlessly express themselves without any monetary component involved; fans who typically have little to no understanding of copyright in general, let alone that some asshole has hijacked their video and forced me to shut it down.  So everyone loses in this scenario - the fan’s YouTube channel gets penalized (or terminated), I upset (or lose) the fan, and…oh right, the bogus claimant and YouTube don’t lose anything, apart from additional ad income they were never entitled to in the first place.  And regardless, with this strategy there is no way to search for the anonymous use of my material within 3rd party uploads (i.e. where the artist / song title are not listed in the title or video description text, rendering such use undiscoverable through YouTube’s search engine).  Not to mention, I would have to endlessly monitor YouTube moving forward for new 3rd party uploads of the material in question (since YouTube scans new uploads against its Content ID database).

Hmmm.  I guess an alternative course of action would be to send a message to each uploader alerting them of the unauthorized monetization, with instructions that they must disable the ads, or otherwise confirm that their video has been claimed by a 3rd party and if so, have them proceed with the dispute process.  I’m tired just thinking about it.  Of course, there’s no guarantee any response would be forthcoming from such uploaders.  And honestly, I don’t have the time to effectively police YouTube in general, let alone launch a campaign of this sort.  And once again, YouTube would need to be continuously monitored moving forward, in case new 3rd party uploads of the material in question popped up in the future.

Damnit.  If only there were some technology that could automatically locate every video on YouTube that used my content, on an ongoing basis, which would also allow me to prevent assholes from illegally monetizing my work.  Oh wait, there is such a thing - it’s called Content ID!!!  Hold the presses!!!  I’ll simply sign up for a Content ID account myself, and then YouTube won’t be able to enforce other people’s illegitimate claims, since my own claims would either undermine or take precedence over them.  Although multiple parties can lay claim to a video, when the total claims exceed 100% of the copyright in a song (which they would when dealing with bogus claimants), YouTube has no way of determining which party has rightful claim to the content and leaves it to the vying claimants to sort out - in such a scenario, no advertising payments can be made until the conflict is resolved, so at the very least this would prevent a bogus claimant from continuing to profit off of my work.  

Similarly, when new reference material submitted to Content ID matches other reference material previously submitted to the system, YouTube again has no way of determining which reference should have priority, and leaves it to the vying claimants to sort out; in the event the parties can’t agree, it defaults to siding with whoever submitted the reference material first.  This protocol assumes the first party is most likely the legitimate claimant, but of course, a bogus claimant may beat you to the punch (as in my case)…so if a bogus claimant decides to be an exceptional asshole, they could stubbornly cling to their illegitimate claims, and force legal action on my part, but at least at that point I would have access to full contact details of the bogus claimant, and could then properly resolve the matter; and at least with this strategy I would be able to have my entire discography scanned, and in so doing, defensively position myself against future attempted hijackings.

Content ID System, here I come!  Well, not so fast.  A Content ID account isn’t something anyone can get - you have to apply for it, and then YouTube has to approve it based on their analysis of your need for the service.  About two years ago, I did apply for a Content ID account, and six days later I was denied.  Apparently, despite having aggregate views in the millions from 3rd party uploads of my music, and despite having issued numerous DMCA takedown notices in the past, I hadn’t demonstrated a need for their service.  Perhaps my rejection had something to do with the fact that I did not check the “I want to monetize 3rd party uploads of my content” box, instead citing my desire to monitor and control unauthorized use of my material.  Note to self: remember to check that box in the future when reapplying.  Eight months later, in March of 2014, I attempted to reapply - but rather than being taken to the application page upon clicking the “apply here” hyperlink, I received the following automatic confirmation: 

“Your information was submitted on Jul 19, 2013.  Thank you for your interest in the Content Identification Program.  Please be patient with us as we get to your request.”  Great, so there’s no way to fill out a new application, even though I have new information that is relevant to YouTube’s reevaluation (assuming they actually will do a reevaluation).  

Back to square one.  I sent another email to and (listed as YouTube’s DMCA agent) outlining the fraudulent copyright claims I’ve been encountering, my need for access to the Content ID System, and my inability to reapply for an account or update my previous application.  No response was forthcoming.  

Alright.  There is another possible solution to this mess - there are various intermediary companies that have Content ID accounts, and which offer indirect access to copyright owners in exchange for a commission on the ad revenue earned from the monetization of your content.  While this is certainly a viable solution, the problem for me is that I’m not interested in monetizing my music - I’m interested in stopping other people from monetizing my music (an endeavor that yields zero profits to such companies).  

To be clear, there is nothing wrong with legitimate monetization of one’s content on YouTube.  However, the issues I have with YouTube’s monetization program are 1) YouTube was built on the idea of sharing art for the sake of art, and it is in this spirit that I participate in the service, 2) Not everything in this world needs ads associated with it, and I do not feel compelled to exploit every possible opportunity to monetize my music - in the case of YouTube, I prefer that my songs are experienced without involving a tampon commercial or a sales pitch for the best stool cleaner on the market, 3) The deal terms with respect to advertisers, YouTube, and copyright owners are far from transparent, and the prospect of entering into a nebulous arrangement in which I’m not privy to all of the information isn’t something that appeals to me.  In light of this perspective, intermediary services are of no help to me, as I will not be forced to participate in YouTube’s monetization program as a means of combatting their illegal monetization.  Fuck that.

Ok, time to take things up a notch.  With the assistance of an entertainment attorney, contact was made with a Google representative who said they could facilitate my access to the Content ID System.  A few days later, I was emailed an NDA (non-disclosure agreement) as a precursor to moving forward.  Shortly after electronically signing it, I was sent a Google publishing agreement.  Huh?  But I don’t want to enter into a publishing deal with Google, I just want to use their Content ID tool.  Turns out, the only way I would be given access to YouTube’s Content ID System was by agreeing to the terms and conditions of Google’s publishing agreement.  The problem was, the terms of their publishing agreement are terrible - they’re highly problematic in a variety of areas, and there was no way I could sign something that reprehensible.  Which means, there was no way I was going to be granted access to Content ID.

In the meantime, more cases of illegitimate Content ID claims concerning my music sprouted up.  In one case, completely unrelated material had been matched to my song.  In another, an unauthorized sample of my song was utilized in a derivative work.  In both cases, Content ID was claiming and monetizing my personal uploads of the recording, along with 3rd party uploads that contained my recording.  Once again, I never received an email from YouTube notifying me about the copyright claims (I discovered them after a deliberate routine check of my YouTube account).  And once again, I was only able to dispute the copyright claim as it pertained to my specific uploads…all 3rd party uploads continued to be unlawfully monetized.

Despite the lack of contact information provided by YouTube in connection with these bogus copyright claims, an internet search using the title of the work to which my content was matched successfully identified the parties responsible, to whom my lawyer subsequently sent notices with instructions to cease all monetization, release all copyright claims, and remove the fraudulent Content ID Asset from the Content ID System.  In addition, they were instructed to account for all monies earned in connection with the illegal monetization of my copyrighted works (still waiting on that information).  Needless to say, this strategy hasn’t worked out too well thus far…compliance is partial and intermittent, and new Content ID matches in connection with 3rd party uploads often seem to reemerge after the Assets in question are supposedly removed from the Content ID System.  And it’s costing me money to implement this solution to boot.  It sucks being principled.

I sent another letter to YouTube’s copyright department and Debra Tucker, informing them of an invalid Asset ID that was (and still is) wrongfully claiming my copyrighted content.  This letter went on to state: “please advise as to the optimal procedure for notifying YouTube of invalid Content ID assets / claims moving forward.  This is not the first time I have encountered an invalid Content ID claim in connection with my original music, and it is vital that I be able to promptly address inaccuracies and misrepresentations as they arise.  I have previously applied for a Content ID account, however my application was denied for reasons unknown - without having access to the Content ID System, how do I a) acquire the contact information of a claimant, b) determine the associated Asset ID # of a claim, and c) properly notify YouTube of a claim’s invalidity?”

Drumroll please……….no response.  

Now, can I sue the bastards that are illegally claiming and monetizing my music?  I suppose.  Will the end result outweigh the time, money, and stress involved in pursuing that effort?  I’m not so sure.  But if possible, I’d like to avoid starting a full time legal division devoted to YouTube copyright disputes (I’ve already got my hands full with copyright infringement issues outside of YouTube).  Plus, good luck pursuing a lawsuit in the event a bogus claimant is overseas.  And of course, YouTube is said to have no liability in the transgression under current copyright law, since they have no control over the actions of their users.

So when it’s all said and done, I’m left with no good options.  To be clear, I think YouTube is a terrific platform, and I think the Content ID system is a fantastic tool for copyright owners.  But it’s being exploited in troubling ways, and YouTube does not seem to be interested in finding a proper solution to the problem…why would they, when they are making money off of the problem?

It seems utterly obvious that YouTube should provide a mechanism by which to dispute the legitimacy of any Asset that Content ID is utilizing to identify matches.  Additionally, YouTube should be required to disclose how much advertising revenue has been earned in connection with a successfully disputed copyright claim, along with complete contact information for the corresponding claimant.  And while we’re at it, all advertising revenue earned by bogus claimants and YouTube could be paid out to the rightful copyright owners as a partial means of compensation for the unauthorized and illegal monetization of their works.  Yeah, it’s quite the fantasy - but I can dream, can’t I?

Although YouTube may not be responsible for the illegal actions of its users, they seem to have conveniently set up a system in which it is virtually impossible to address the issues I’ve outlined (absent “joining the machine”).  But let me address the following thought that is surely populating some reader’s brain at the moment - “if you have such a problem with YouTube, then stop using their service”.  If only it were that simple.  My abandonment of YouTube would have absolutely zero effect on the myriad 3rd party unauthorized uploads of my music that are being illegally monetized, and cutting my ties with YouTube affords me no greater leverage in addressing such infringement.  There is no escape, my friend.

It’s interesting to consider that the reason piracy sites and streaming sites like YouTube have no liability when copyrighted works are illegally distributed throughout their networks is because of what’s referred to as the “safe harbor” clause under copyright law.  There are a variety of conditions that must be satisfied in order for an OSP (online service provider) to be protected under safe harbor, one of which includes not receiving a direct financial benefit as a result of the infringing activity.  It appears quite obvious that YouTube is very much receiving a direct financial benefit via their participation in, and receipt of, advertising revenue earned in connection with the monetization of illegally distributed videos on their service.  

Another condition of the safe harbor clause is that an OSP offer “standard technical measures” to copyright owners, which refers to methods used to identify and protect copyrighted works.  I would argue that YouTube’s Content ID System is precisely that, a standard technical measure, as indicated by its proven effectiveness at being able to locate and identify infringing content, along with the fact that its implementation is now a staple of the service and is in widespread use on a daily basis.  And while YouTube’s online DMCA portal does facilitate (some) protection, it does not facilitate identification whatsoever.

So the question is - given the fact that YouTube has developed a mechanism by which infringing material can be identified, given that they deny legitimate copyright owners access to this mechanism, given that they provide no alternative mechanism by which a copyright owner can effectively combat Content ID abuse (nor a means by which a copyright owner can effectively notify YouTube of said abuse), and given the fact that YouTube is directly profiting from the monetization of infringing material - does YouTube meet the necessary conditions for safe harbor protection?  

One thing is certain - without a sufficient mechanism to combat Content ID abuse that is accessible to all copyright owners, and without any punitive repercussions to illegitimate claimants and YouTube for the illegal monetization of copyrighted works, these abuses can only be expected to continue.

UPDATE 1/28/16: I have written a follow up to this article, available here.