• by Ashkan Karbasfrooshan , Op-Ed Contributor, December 16, 2013

Last week, YouTube updated its ContentID policies; many channels suffered setbacks.  As my company produces both fully cleared and transformative clips using third-party footage, I was wary that we would face similar issues.  We got a few claims that we replied to immediately and largely resolved.

By Sunday morning, there was no reason to be wary.  Yet by 1 p.m., our videos had disappeared. 

The channel is back up now after a 21-hour downtime.  We would have come back up sooner, but to remain DMCA-compliant, YouTube had to abide by its rules.  Despite YouTube's best intentions and efforts, it needed time to process the retractions.  So, we had to wait for YouTube to properly process the claimant's retractions for our channel to reappear.   That was done this morning.  So that was one issue.  That happens and over time, YouTube will address it.

All's well that ends well?

Fair use is as much of a business decision as it is a legal framework, with pros and cons.  And, building one's business on anyone's platform -- be it YouTube, Facebook or Twitter --  had its own risks.Yesterday proved that.

However, as the claimant's retraction demonstrated, we didn't invent fair use; inasmuch as copyright law gives rightsholders specific protections via section 106, section 107 gives organizations the right to create new transformative works provided they pass the four tests of fair use. The precedents are clearly in our favor, as long as you understand the limitations and commercial applications thereof. 

So the second issue has two subsets:

- automated copyright bots pick up a lot of videos that are in fact not infringing;
- after a counter-notification is reviewed by a human being, the claimant can release or reinstate the claim. To their credit, most of the claimants in our episodes retracted their claims immediately.  But often the person receiving the counter-notification is not necessarily well-versed in legal matters (or common sense).  This boils down to the DMCA and training.

How Neutral Is YouTube?

They say that behind every great fortune is a crime, and some could argue that behind YouTube's great fortune is a crime (I don't agree with that statement).  But because YouTube did grow in the face of multiple legal challenges, then I personally believe that it has always sided more with big media than with new creators.  I think that is perfectly normal and to be expected. 

You may recall that YouTube last year modified its takedown process. Instead of automatically siding with the claimant after a refused counter-notification, it now remains neutral and requires the claimant to pursue a trial, which is the correct legal thing to do.

Similarly, while I am not here to tell YouTube how to run its business or educate its lawyers, I respectfully disagree with YouTube and/or DMCA automatically taking taking us down based on the claimant's position (since retracted, mind you) only.  In other words, the proper legal path would be for the claimant(s) to demonstrate in a court of law that the accused did in fact break the law, and provide YouTube with a court's finding to that effect, at at which point YouTube could obliterate the demonstrated infringing channel.

Irreparable Harm

Moreover, YouTube absolutely needs to better educate those that access ContentID.  It's evident why YouTube arms rightsholders with ContentID, but there's absolutely no real drawback for a claimant to be overly aggressive.  One "watchdog" that represents rightsholders incentivizes its employees to issue incorrect or overly aggressive claims (if you read reviews by their employees on a popular employer review site, this is crystal-clear).  Another big media organization bragged in another lawsuit about abusing the takedown process. 

Yet maybe because of YouTube's own history of litigation, it refuses to punish those who abuse the tool, even though the balance of inconvenience clearly does not favor hose with ContentID (unless we are talking about flagrant violation of copyright, where a user uploads a full-length movie or album, which does possibly reduce the resale value of said work).

So sure, we lost some revenue during our downtime; that happens.

But we lost a lot more.  Thankfully we are not in fundraising mode or for sale, but say an investor or acquiror saw that we were down due to multiple copyright infringements -- wouldn't that be tantamount to "irreparable harm" through the loss of goodwill and reputation?

Absolute Power Corrupts Absolutely

I suspect that over time, the DMCA will become more neutral, and YouTube will realize that it’s armed rightsholders without creating checks and balances to ensure that this power isn't abused.