Copyright critics are critical of the recent YouTube transparency report. They say the report hides a lot.
A lot of people in the tech and copyright circles are talking about the YouTube transparency report. It’s understandable because a lot of data is publicly released because of the report.
One of the major problems with YouTube is how much content is flagged for copyright violations even though a very clear case can be made that the content produced would actually fall under Fair Use. For instance, video’s offering commentary and criticism about a copyrighted work. Such a work would, in fact, fall under Fair Use in the eyes of the law. However, the eyes of the law and the eyes of ContentID and other methods of copyright enforcement aren’t exactly the same – with the latter often being more strict over the long term.
Sometimes, content is flagged due to erroneous filtering matching. Other times, content is taken down due to copyright abuse on the part of the complaining party. We’ve seen this sort of thing plenty of times to the point of complete and total absurdity. In fact, copyright fraud can be taken to the extremes of being used as a form of extortion on top of it all.
Suffice to say, copyright abuse is a major problem. Yet, according to the YouTube blog post, they think that the system is working:
As the report notes, we see low levels of disputes relative to total claims, particularly within tools that use automatic detection. In the first half of 2021, fewer than 1% of all Content ID claims were disputed.
You might look at that and think, “what?” As it turns out, you aren’t alone in thinking that.
Critics Respond
Critics have responded by pointing out that this assessment is flawed. Timothy Geigner of TechDirt dug into the numbers a bit further and found that, while the percentage sounds small, the actual numbers for disputed claims is still large:
And besides all of that, when you dig into the actual raw numbers rather than percentages, it becomes very clear that YouTube does indeed have a copyright enforcement problem.
Over 2.2 million YouTube videos were hit with copyright claims that were later overturned between January and June of this year, according to a new report published by the company today. The Copyright Transparency Report is the first of its kind published by YouTube, which says it will update biannually going forward.
2.2 million claims were overturned in favor of the uploader in a six month period. Let that wash over you for a second and then realize that, while this represents a tiny percentage of the overall claims, it’s still a huge number. And when you factor into all of this both that there is zero chance that the actual numbers of invalid copyright claims aren’t much higher and the fact that YouTube creators have long complained that this is a massive problem from a process standpoint, well, it again becomes obvious that YouTube has a copyright enforcement problem.
Though mistaken copyright claims are a drop in the bucket on a larger scale, YouTube creators have long complained about how the platform handles claims, saying overly aggressive or unjustified enforcement can lead to lost income. Copyright claims can result in videos being blocked, audio being muted, or ad revenue going back to the rights owner. This new report gives shape to a problem that YouTube itself has acknowledged needs updating.
In 2019, YouTube CEO Susan Wojcicki said in a blog post that the company heard the concerns from creators and that YouTube was “exploring improvements in striking the right balance between copyright owners and creators.”
We most certainly haven’t reached that balancing point yet. I anticipate that YouTube is releasing this transparency report as part of a broader and longer term plan to alleviate the problems this is all causing. If not, then all YouTube appears to be doing is telling on itself with this report, which is not the kind of corporate action I would expect.
Meanwhile, thanks to overly restrictive copyright enforcement, YouTube’s valuable creator base is left waiting for help.
Indeed, the quantity of videos being uploaded to YouTube is massive. After all, some statistics sites peg the amount uploaded to YouTube to be about 500 hours every minute. That was as of February of 2020. So, when you see statistics like that, 2.2 million claims being disputed is hardly surprising.
The Electronic Frontier Foundation (EFF) commented that there are also problems with people being pressured not to dispute a claim. From the EFF:
YouTube’s dispute claims don’t add up. First, the idea that there are so few disputes means Content ID is working to catch infringement is laughable. On page 10 of the report, YouTube admits that there are errors, but that they are few and far between, based on the low dispute rate. They state that “When disputes take place, the process provided by YouTube provides real recourse,” which runs counter to much of what creators actually say they experience. They feel pressured, by YouTube, not to dispute Content ID. They fear disputing Content ID and losing their channel as a result.
YouTube’s suggestion that the relatively high percentage of disputes resolving in favor of the video creator means that there is a functioning appeals process is also dubious.
Disputing Content ID is a confusing mess that often scares creators into accepting whatever punishment the system has levied against them. The alternative—as YouTube tells them over and over—is losing their account due to accumulating copyright strikes. Absent alternative platforms, no one who makes videos for a living can afford to lose their YouTube channel.
One creator, Chris Person, runs a channel of video game clips called “Highlight Reel.” It was an incredibly popular show when Person edited it for the website Kotaku. When Person was let go, he was allowed to continue the show independently. But he had to rebuild the entire channel, which was a frustrating process. Having done that, he told us he would do anything to avoid having to do it again. As would most creators.
Creators have reported that they tell fellow creators to dispute matches on material they have the right to use, only to be met by fear. Too many are too afraid of losing their channel, their only access to an audience and therefore their income, to challenge a match. One music reviewer simply accepts them all, losing most or all direct income from the videos, rather than spend months fighting.
Furthermore, creators report that YouTube ignores its own rules, taking far longer than the 30 days it claims must pass before it acts to either release a claim or repost a video. When delays happen, there are no helplines staffed by actual human beings that might do something about it.
There is a terrible, circular logic that traps creators on YouTube. They cannot afford to dispute Content ID matches because that could lead to DMCA notices. They cannot afford DMCA notices because those lead to copyright strikes. They cannot afford copyright strikes because that could lead to a loss of their account. They cannot afford to lose their account because they cannot afford to lose access to YouTube’s giant audience. And they cannot afford to lose access to that audience because they cannot count on making money from YouTube’s ads alone, partially because Content ID often diverts advertising money to rightsholders when there is Content ID match. Which they cannot afford to dispute.
So, that adds to why the percentage of content being undisputed is so high. There is substantial pressure for many creators to keep quiet about it even though they might actually have a case against a claim in the first place.
Meanwhile, InfoJustice responded to the transparency report saying that this report shows that overblocking is a very real problem:
So what can we learn from this first copyright transparency report? The overall take-away is that automated content removal is a big numbers game. In total YouTube processed 729.3 million copyright actions in the first half of 2021 of which the vast majority (99%) were processed via Content ID (as opposed to other tools, such as Copyright Match Tool and the Webform). And while YouTube claims that ContentID is much more accurate and less prone to abuse than its other systems ContentID has still received 3.7 million disputes from uploaders claiming that the actions (these can be blocks/removals but also demonetisation actions) taken against them are unjustified. 60% of these disputes have ultimately been decided in favour of the uploaders, which means that in the first half of 2021 Content ID has generated at least a 2.2 million unjustified copyright actions against its users on behalf of rightholders—The real number is likely to be much higher since research into notice and take down systems suggests that only a small fraction of users whose lawful uploads are removed make use of a complaint procedure that is available to them. In other words, over-enforcement (both unjustified blocking and unjustified demonetisation) is a very real issue that affects the rights of a substantial number of uploaders on a regular basis.
This number alone makes it very clear that concerns about over-blocking by automated upload filters are very much grounded in reality and underline the importance of strong ex-ante safeguards in national implementation of Article 17. It will be interesting to see how these numbers will change once Article 17 has been widely implemented. For instance, how will these numbers be affected once YouTube has adapted its automated filters to implement ex-ante safeguards such as the German rules on treating fragments shorter than 15 seconds as presumably legal or, more crucially, what will be the impact of limiting permissible ex ante filtering only to “manifestly infringing” content, as partly endorsed by the Commission’s Guidance and proposed by Advocate Øe in Case C-401/19 . In order to better understand the impact of such measures it would be helpful, if future editions of the transparency report would break out the numbers for the EU 27 — unless Youtube implements the required changes globally.
So, some are looking at the report and finding that it bolsters the argument that overblocking of content is a very real problem and that the statistics backs this up. That adds a very interesting dimension to the EFF’s comments about how creators are also pressured to not dispute the claims in the first place. In some regards, it’s also evidence that self-censorship is also a major problem as well.
While YouTube clearly intended this report to show that their system works, the numbers wound up showing a very different picture. Little surprise why critics pounced on that.
Drew Wilson on Twitter: @icecube85 and Facebook.
