A Grammy award-winning jazz composer alleges YouTube’s copyright enforcement system disproportionately protects big studios and record labels while denying less-powerful creators any meaningful opportunity to protect their original works from infringement.
In fact, YouTube’s two-tiered approach to copyright infringement—whereby larger creators are armed with tools and resources not afforded to smaller, independent creators—has only made matters worse, according to Maria Schneider and Pirate Monitor LTD’s 44-page proposed class action.
Overall, the lop-sided “whack-a-mole approach” used by YouTube, Google and Alphabet to police protected material across the world’s most popular video platform has turned YouTube into a “hotbed of copyright infringement,” where user volume and ad revenue are prioritized over the legal protection of the same creators driving the companies’ profits.
Defendants have, in effect, created a two-tiered system whereby the rights of large creators with the resources to take Defendants to court on their own are protected, while smaller and independent creators like Plaintiffs and the Class are deliberately left out in the cold.”
While YouTube holds itself out to be a true marketplace for user-generated content, far too much of that content infringes upon copyrights owned by others due in part to the defendants’ “willful blindness” to a widescale problem, the case charges, saying nothing of the revenue that the plaintiffs say rightfully belongs to content creators left with blunted tools to fight piracy.
Further still, amid rampant copyright infringement across the platform, the vast majority of “known and repeated copyright infringers” on YouTube face few, if any, consequences.
“Without adequate protection for copyright holders’ rights, YouTube poses an existential threat to copyright laws,” the suit says.
Haves and have nots: How YouTube fights copyright infringement
With more than two billion worldwide users each month, YouTube, with Google and Alphabet’s backing, has cemented itself as the preferred online video platform for content viewers and creators. Yet to become the internet’s go-to video player, YouTube has for years looked the other way with regard to protecting copyrighted material in favor of maintaining rapid growth highly dependent on quick content uploads subject to no prepublication diligence, the plaintiffs say.
According to the case, YouTube faced legal action over its hands-off approach to protecting copyrighted content and eventually crafted “distinct and disparate” systems to combat the problem. These systems, however, heavily favor major music studios and big-time rights holders—i.e. those with the resources to take YouTube to court, vast stores of copyrighted material and, therefore, leverage—over more small-time creators, the suit says.
For those with enough muscle, YouTube provides access to its Content ID program, which allows qualifying copyright holders to automatically identify and manage their content on the platform, the suit says. With Content ID, videos uploaded to YouTube are scanned against a database of files submitted by qualifying copyright owners, who get to decide what happens when content in a video matches the work they own, according to the case.
At the same time, content creators such as the plaintiffs are denied access to Content ID and forced to resort to “vastly inferior and time-consuming” manual methods of trying to police and manage their copyrights, the complaint relays. According to the lawsuit, smaller content creators are left with no choice but to scan nearly every YouTube video to identify content that infringes on their copyrights. Then, a creator must file individual takedown notices with YouTube for each video they come across that steps on their legally protected material, per the case.
According to the complaint, the inequities in YouTube’s two-tiered method of policing copyright infringement makes clear that those with access to Content ID will remain a step ahead when it comes to protecting what’s legally theirs. For instance, those with Content ID are able to screen a video the moment it’s uploaded and before it’s published to prevent any material from being infringed upon. On the other hand, creators such as the plaintiffs and proposed class members are only able to screen a video after it’s uploaded and published on YouTube, when any infringing material therein has already been made available to the general public.
Moreover, Content ID gives a creator access to automatic screening that compares the content of uploaded videos against YouTube’s entire catalogue of Content ID-protected works, the suit says. For ordinary creators, infringement screening must be performed through keyword searches to identify titles, authors and keywords attached to a video that may contain infringing content.
Lastly, Content ID allows those with access to the tool to automatically block the publication of a video containing infringing content, monetize the video through ad revenue or monitor download statistics of the video, the complaint says. Those without Content ID, on the other hand, must file a takedown notice with YouTube, providing the specific URL location of the offending content, and provide evidence of their right to enforce the copyright. This process can take days or weeks, during which time the infringing material remains publicly available and furthers the infringement, the lawsuit says. After this review period, YouTube may suspend or remove the offending content.
No matter how many times a copyrighted work is infringed upon, the plaintiffs say less-powerful creators may still not be afforded access to Content ID, the suit says.
“If a rights holder does not have the economic clout to qualify for Content ID, YouTube refuses to add their works to the Content ID catalog for prepublication protection even if those works have previously been infringed on YouTube hundreds or even thousands of times,” the plaintiffs assert. “Through its use of these systems, YouTube exerts significant control over which infringing videos may be published on its site and which infringing videos are never viewed by the public.”
Though YouTube claims eligibility for Content ID is dependent on a number of criteria, only five percent or less of those of apply are approved to use the tool, the lawsuit alleges. The plaintiffs have applied and were either rejected or received no response, the suit says.
Lawsuit: With copyright failings, YouTube forfeits federal infringement protections
The suit also touches on the safe harbor protection afforded to companies such as YouTube by the Digital Millennium Copyright Act (DMCA), which protects an entity from copyright infringement claims as long as it has in place and reasonably enforces a policy of terminating repeat offenders from a platform. According to the suit, YouTube purports to take advantage of DMCA’s safe harbor by assessing a “copyright strike” against an uploader when an ordinary rights holder files a takedown notice and terminating those who accrue three active copyright strikes within 90 days.
The lawsuit claims, however, that YouTube does not issue copyright strikes when infringing content is uploaded and identified by its Content ID system. As the case tells it, even though Google touts that 98 percent of its copyright issues are caught via Content ID, the truth is that nearly all copyright-infringing material is “entirely insulated” from YouTube’s repeat offender policy. The effect, according to the complaint, is that while YouTube’s Content ID partners are protected from repeat infringers given their material is protected by a strong identifying tool, “ordinary” creators remain at risk of recurring copyright infringement given they face an uphill battle.
“This two-tiered system essentially trains YouTube’s billions of uploading users that there is essentially minimal risk to uploading to their hearts’ content,” the lawsuit claims.
Essentially, YouTube’s business model “embraces” copyright infringement given each infringing work “represents additional advertising opportunities and attracts viewers” to the platform, the complaint claims. YouTube’s “vast library of pirated content” draws users to the site, the case says, which then leads to more users posting more content on the platform, enabling the defendants to make more money:
Simply put, more stringent enforcement of copyrights would be harmful to Defendants’ revenue derived from YouTube—if all infringing material were subject to a pre-upload screening feature like Content ID or to being taken down, YouTube would lose valuable online real estate and viewers.”
Ultimately, the lawsuit charges the defendants’ approach to handling copyright infringement on YouTube has made the companies liable for piracy on the platform given they fail to satisfy the mandates in ordered to be protected from litigation under the DMCA.
Who’s covered by this lawsuit?
The suit looks to represent:
All persons holding the exclusive right to publicly perform, reproduce, publicly display, or distribute film, audiovisual, or musical works over the internet for works first going into the public domain after December 31, 1977 whose copyrighted works have been uploaded to YouTube within the relevant statute of limitations, whether in their entirety as part of one single upload or where a portion of the copyrighted work has been uploaded to YouTube, where such person has had to submit a successful takedown notice with respect to such work, and where such person’s work has subsequently been infringed or uploaded without permission and where such person has not benefited from the YouTube Content ID program which would have automatically and without unilateral action allowed such person to monetize or prohibit that upload from being displayed, copied, distributed and performed on the YouTube site…”
Additionally, the plaintiffs look to cover a subclass comprised of:
All persons holding the exclusive right to publicly perform, reproduce, publicly display, or distribute film, audiovisual, or musical works over the internet for works first published after 1976 and whose works have been uploaded to YouTube without the associated copyright management information within the relevant statute of limitations.”
The lawsuit is embedded below.
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