How YouTube Exploits Copyright Claims and Defies Fair Use

The right to fair use once protected small content creators from excessive and exploitative copyright litigation. Now online media platforms like YouTube have free reign to bleed these creators dry. 

Fair use allows the public to use copyrighted material without an owner’s permission under certain conditions and encompasses use cases such as criticism, commentary, news reporting, teaching, scholarship, and research. It’s intended to protect against the rigid application of copyright law and promote the same creativity that copyrighting aims to incentivize.

However, the Digital Millennium Copyright Act has provided the framework for digital platforms, like YouTube, to facilitate widespread copyright abuse with no accountability. 

DMCA allows infringing material removed without litigation

The Digital Millennium Copyright Act (DMCA) was passed in 1998 to address the application of copyright law in the novel context of the internet. Most significantly, the DMCA enables copyright owners to have infringing content removed without litigation and limits the liability of online service providers so long as they meet certain requirements, like cooperating in expeditiously removing infringing content. 

These safe harbors essentially entrust non-government entities with the responsibility of policing copyright themselves. With the authorization to enforce copyright claims and insufficient incentive to uphold fair use proactively, YouTube has knavishly crafted a system that redistributes huge payouts to large copyright holders at the expense of smaller creators. The primary tool YouTube uses to execute this agenda is its problematic Content ID.

Content ID is an automated system that flags potentially infringing material by scanning and comparing video contents to a database of user uploaded audio and video files. Few copyright holders actually have the ability to add content to this library.

The availability of Content ID is limited by vague criteria

In the second half of 2023, only 7,791 partners had access to the tool. According to YouTube, the availability of Content ID is limited to copyright holders who meet vague criteria, including “demonstrated need” and “exclusive rights to a substantial body of original material that is frequently uploaded.” As a result, Content ID is mainly marketed toward and used by movie studios, record labels, and other large creators. 

In the second half of 2023, Content ID users were responsible for over 99% of the billion-plus copyright claims processed on YouTube, despite representing less than 2% of all claimants on YouTube. Though many of these claims are undoubtedly legit, Content ID has developed a notorious reputation among creators for its bogus claims and oversensitivity. 

Some culprits that have triggered claims this past year include a washing machine’s cycle chime and a parody of the “Steamboat Willie” cartoon that had recently entered the public domain. Even my own vacation vlog uploaded to my subscriberless channel triggered a Content ID claim due to 18 seconds of unintelligible music playing in the background of a restaurant as I described the fish and chips I had ordered. 

If these cases were evaluated in their proper context and considered fair use doctrine — and copyright expiration, in the case of “Steamboat Willie”— they would likely be ruled legal. However, Content ID evidently fails to distinguish the context of permissible use cases versus real infringement, as the tool seems to flag indiscriminately any content that matches material in the copyright library. While YouTube does not release the percentage of Content ID claims that are false, the phenomenon is significant enough to be a pervasive headache in the creator community.

Trying to avoid Content ID claims has become a way of life

For many creators, trying to avoid Content ID claims has become a way of life because of the  nuisance that prospective consequences pose. When a video is flagged with a Content ID claim, the copyright holder can either choose to block the video from being viewed, monetize the video for themself by running ads against it, or track the video’s viewership statistics.

In over 90% of claims made in 2023, copyright holders chose the monetization route and could receive 100% of the ad revenue that wasn’t reserved for YouTube in most cases, regardless of how much of the whole video included infringing content.

YouTube even touts of having created an “entirely new revenue stream” that has paid over $9 billion in ad revenue to copyright holders from content claimed and monetized through Content ID as of December 2022. In reality, this “new revenue” comprises the redistributed profits largely taken from smaller creators.

Ultimately, YouTube’s failure to acknowledge the unbalanced dynamics between powerful, profit-driven media companies with nothing to lose and independent creators with everything on the line solidifies the inequity and dysfunction in what might otherwise be an adequate system.

If YouTube supported a transparent, streamlined disputing process for invalid copyright claims and an outline for remediation, the occasional false claim would not be an issue. However, when faced with a disputing process so convoluted that even NYU law professors could not figure out how to navigate it, many creators are unwilling to risk any chance of inciting legal action and having their channel deleted.

If the government is going to entrust profit-oriented online service providers like YouTube with the authority to enforce copyright law, lawmakers must revise the DMCA to promote more provider accountability in their effective treatment of stakeholders. In the meantime, YouTube might take this as its sign to hop on the AI train and deploy some more sophisticated algorithms in its Content ID tool.

Kim-Leigh Tursi is a Young Voices contributor. Follow her on Twitter @KimiTursi. The opinions expressed are solely her own and do not express the views or opinions of her employer. This Expert Opinion is exclusive to Broadband Breakfast.

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