Unfair to fair use

YouTube faces a conundrum. It has consistently sidestepped liability for infringing content posted on its site by taking "reasonable" steps to discourage and remove infringements. But the "Content ID" system it has set up to prevent that task from becoming overwhelming may subject many of its users to liability and lead many more to jump ship to other hosting services. As the Content ID system faces increasing criticism and courts threaten liability on content owners who don't consider fair use before calling for the removal of allegedly infringing content, something is going to have to give.

Ever since YouTube Inc. prevailed in the 2007 case filed by Viacom International Inc. against it (No. 07 Civ. 2103 (S.D.N.Y. 2010) - alleging that YouTube had engaged in "brazen" and "massive" copyright infringement by allowing users to upload and view hundreds of thousands of videos owned by Viacom without permission), the law has been that companies simply hosting content are not generally liability for infringing posts. This protection is rooted in the Digital Millennium Copyright Act (DMCA), a law passed after intense lobbying by Hollywood (in favor) and Silicon Valley (against). A DMCA provision titled the "Online Copyright Infringement Liability Limitation Act," or "OCILLA," creates a safe harbor for sites that host third party content as long as they do not encourage infringement and reasonably comply with requests from copyright holders to remove infringing content, known as DMCA takedown notices.

Because YouTube qualifies as a "service provider" under the DMCA, copyright owners cannot sue it directly for infringing videos that it hosts. Instead they must adhere to the provisions of the DMCA's OCILLA provisions in order to affect a takedown of infringing content.

Under OCILLA, a content owner wishing to issue a takedown notice needs to identify its original content, identify the allegedly infringing video, provide its contact information, certify under penalty of perjury its ability to police its asserted rights, and (this is the big one, folks) certify that the owner has a good faith belief that the use of the material, as it appears, is not authorized by law.

Last year the 9th U.S. Circuit Court of Appeals held in a matter of first impression that liability could attach for DMCA takedown notices that did not first consider fair use. In the words of the court: "copyright holders cannot shirk their duty to consider - in good faith and prior to sending a takedown notification - whether allegedly infringing material constitutes fair use, a use which the DMCA plainly contemplates as authorized by the law. That this step imposes responsibility on copyright holders is not a reason for us to reject it." Lenz v. Universal Music Corp., 801 F.3d 1126, 1138 (9th Cir. 2015).

Of course, YouTube has an extraordinary number of users producing and posting extraordinary numbers of videos. It would be a monumental task for those content owners to monitor YouTube and comply with the takedown notice requirements to vigilantly enforce their rights, especially after the Lenz decision made clear the risks of not giving fair use due consideration. The burden on YouTube is also significant, as every notice it receives must be addressed by its staff at significant expense.

In order to substantially reduce the costs of policing its site for infringements and eliminate any argument that it is encouraging infringement, YouTube created a system called "Content ID" which allows copyright owners to easily find and remove infringing videos by performing automated scans of videos on the site for content that matches the material uploaded by those rights holders. Once the system identifies a match, the copyright owner is notified and given several options on how to proceed: including (1) doing nothing, (2) taking the video down, (3) transferring all of the advertising revenue the video earns to the copyright holder, or even (4) placing advertisements on the video.

Notably, the copyright owner does not need to adhere to the requirements of the DMCA takedown procedures. The process is automated, extrajudicial, and low-cost - for everyone but those accused (rightly or wrongly) of infringement. As such, the Content ID system effectively side-steps the DMCA by relieving YouTube and its copyright holding users of not only the burden of actively policing the site, but the burden of sending out DMCA takedown notices. This system thus poses significant risks to accused infringers who very squarely fall within the fair use exception of the Copyright Act.

In Lenz, the 9th Circuit justified imposing liability for DMCA notices that fail to consider fair use on the basis that fair use is not mere excusable infringement but authorized non-infringement. Put differently, a primary goal of the Copyright Act is to enrich our society by encouraging the creation and publication of more original works, including works that fairly incorporate pre-existing work for social commentary, educational purposes, or other socially valuable purposes. But the Content ID system ignores fair use and thus risks chilling the creation of new, noninfringing works that reference or incorporate other protectable works.

Consider the new popular genre of Let's Play videos in which the creator plays through a video game while editorializing and giving commentary. The commentary and personality of the creator, rather than the gameplay itself is usually the focal point of these videos, and many creators have developed their own distinctive conversation style or hook. These videos have led some creators to astronomical levels of success. For example, Felix Kjellberg aka "PewDiePie" has amassed a following of over 42 million subscribers on his YouTube channel and has reported earnings of approximately $12 million in 2015 alone.

YouTube and other sites have provided an avenue for such creators to achieve very real commercial success without the backing of large corporations. Many video game publishers are happy to have their games featured in these videos as free advertising, but other publishers have attempted to exert significant controls over them and the advertising revenue they earn, courtesy of the Content ID system.

The problem is that Content ID's automatic scanning and matching makes it far too easy for content holders to shut down, take the revenue from, or even alter posted content that no court would find infringing. For a work to be infringing, it must use a substantial portion of the original work, but it is unclear how much of a work needs to appear in a video to constitute a "match." Yet videos that have gameplay or music in the background may be tagged for matching the video game or music. Thus even a small snippet of a song in a video can completely remove a video creator's ability to monetize a work in which the match was "de minims."

And, of course, one cannot expect a bot to analyze fair use, one of the most difficult and highly contested areas of copyright law, but when the ramifications for a spot match of a few seconds of gameplay audio amounts to the divestment of all earnings for a video, it is clear that the Content ID system is built to scale back YouTube's costs rather than serving the interests of the Copyright Act.

The Content ID system has been the subject of significant criticism from the online community, and many original YouTubers have railed against abuses by corporate content owners that are made far too easy by YouTube.

While YouTube is by far the dominant video sharing site, competitors such as Twitch.tv and Facebook are trying to claw their way into the video hosting space. If YouTube's Content ID system continues to be seen as oppressive to content creators who fairly use other works, then a mass migration of content creators tired of dealing with YouTube's revenue-gouging robots seems inevitable.

The Copyright Act places the burden on the copyright owner to police its copyright, and in so doing to consider fair use. But YouTube's Content ID system allows copyright holders to shut down, take revenues from, or even post advertisements on works that would qualify as "fair use," shifting the burden back to alleged infringers in a way that would could lead to liability for accusers and lead fair users to look for another home for their content. For videos qualifying as fair use, the Content ID system is anything but fair.

Stephen M. Doniger and Frank Gregory Casella are attorneys with Doniger / Burroughs.