Last month, YouTube released tools to help creators navigate the DMCA system. The EFF is now criticizing those tools as being insufficient.
Over the years, YouTube’s DMCA and ContentID systems have received a lot of criticism. These criticisms range from having limited ability to fend off fraudulent claims to having a system that does not respect Fair Use.
With the scales heavily tilted towards those who makes complaints and against content creators, the announcement that YouTube would release new tools to help creators navigate the DMCA certainly was welcome news at first. After all, many point out how messy the DMCA system is on the platform. So, a potential solution to solve even some of the many problems of YouTube got plenty of people excited.
Unfortunately, the news wound up being disappointed. As we pointed out last December, the new tools wound up being disappointing. In short, when a complaint is filed against someone, all the new tools do is highlight the section of the video that is being complained about. From there, the video or audio can be trimmed using existing tools. The system also differentiates between a simple complaint and a full fledged strike against the account. After three strikes, of course, the YouTube account is effectively wiped and the user is banned from the platform. While the tools do help users find out what specifically is being complained about, the tools do not do anything to protect against fraudulent complaints. Instead, it only serves to encourage users to simply fold under pressure instead.
Now, it seems that the Electronic Frontier Foundation (EFF) is effectively agreeing with our assessment that the tools are insufficient. Focusing on Fair Use exceptions in copyright law, the EFF said that removals are no substitute for what would otherwise be lawful content. From the EFF:
In order to make dealing with Content ID claims “easier” for users, YouTube’s new tool list includes something called “Assisted Trim.” If you get hit by Content ID, YouTube’s interface now presets an editing tool around the disputed clip, so that video makers can easily remove it, releasing the Content ID claim.
Videos critiquing a film or song are going to include clips from that video or song. It makes the point stronger. In the same way that high school English classes teach students to put quotes in their essays to make their point stronger, people working in visual and audio formats do the same thing.
Moreover, fair use gives people the legal right to use copyrighted material for purposes like commentary and criticism without having to get permission or pay the copyright holder. And fair use isn’t bound by a specific number of seconds. It’s bound by whether what was used was needed for the point being made.
But Content ID isn’t based in fair use. It’s based on whatever YouTube decides. Users can technically dispute a Content ID match. But if a user’s dispute of a Content ID claim is rejected, and they appeal, the user can end up with a “copyright strike.” Every YouTuber knows that copyright strikes can lead to you losing your whole page.
Losing your YouTube page—especially since there is no video platform that comes close to offering the kind of audience YouTube does—is not something anyone wants to chance. And if you depend on YouTube for your living, the situation is even direr. You can see why people would just go along with whatever happens rather than risk the potential consequences. YouTube’s policies, and the tools it chooses to make available, all funnel creators into simply removing copyrighted material rather than encourage them to make fair use, even if legally they are making fair use.
By making eliminating material flagged by Content ID so easy—just click here!—and making challenging matches so perilous, YouTube has put its thumb on the scale against fair use and in favor of copyright abuse. That thumb gets especially heavy given how few real alternatives to YouTube exist.
The EFF goes on to say that anti-fair use ideas only serves to add further damage to the situation.
So, moving forward, creators have to continue to putting up with the reality that YouTube may not necessarily have their back when it comes to copyright disputes. This is ultimately compounded by promises of fixing the system only to be left with disappointment. Some users have already expressed bitterness towards the platform and this sort of situation doesn’t necessarily help a whole lot in that regard. Certainly, user can hope that YouTube will get around to addressing many root problems in the system next time. In the mean time, the creators will only be left to suffer from a system filled with uncertainties.
Drew Wilson on Twitter: @icecube85 and Facebook.
