Last week, the US House of Representatives' Appropriations Committee held an otherwise unremarkable budget hearing on the judiciary. The hearing was recorded and streamed live and then released on YouTube as well as Ustream. However, this morning, Steve Schultze, who works on internet freedom for the State Department (and who has previously done great work at Princeton's tech policy think tank and Harvard's Berkman Center), went to check out the video on YouTube and saw the following.
As you can see, the video was taken down from YouTube, with an apparent copyright claim... from Telemundo and Univision, the two famous Spanish-language broadcasters. Telemundo, of course, is owned by NBCUniversal, which has a long history of over-aggressive positions on copyright law. It is difficult to see how anything in a US Congressional appropriation committee hearing on the budget of the US court system would likely infringe on the copyrights of these two television stations. It seems likely that there was some sort of mess up involving YouTube's ContentID. Yet, once again, we see how an overaggressive copyright system, combined with automated tools like ContentID can lead to censorship of content that is in the public interest.
Soon after Schultze pointed this out, the message on the video's page switched from being a copyright claim to that the video had been made "private." So, it's likely this is in the process of being sorted out. And, yes, in the long run, it seems unlikely that a random House Appropriations Committee hearing on the court system's budget is so important that it needs to be available immediately. But just the fact that a questionable copyright claim, combined with an automatic takedown system appears to be making information disappear from public hearings in the US Congress should raise alarm bells.
Back in December, we wrote about YouTube extending ContentID to multi-channel networks (MCNs), which had previously been a way for video makers to effectively "hide" from ContentID in exchange for giving up some of their ad revenue to the network. The move created a lot of angry responses, and as we pointed out, a big part of the problem was YouTube's absolute failure to explain what happened, why it happened and to be prepared to deal with the fallout. Instead, YouTube stayed almost entirely silent while some of its biggest partners and users were crushed under a sudden flood of ContentID notices and "strikes" on their account. I still can't figure out what the hell took them this long, but YouTube has finally admitted that "This introduction didn’t go as we hoped.... And we left some of our community feeling frustrated and confused." You think?
YouTube also is noting that it had updated its ContentID tools to try to avoid some of the excessive takedowns associated with it. For one thing, it appears that "certain rightsholders" are being asked "to perform in-depth audits of their references before they can make any new claims." Reading between the lines, that sounds like YouTube is hitting back at rightsholders who have abused ContentID. That sounds good, though we'll have to see how it plays out in practice. YouTube is also making it easier to pull out incidental audio in videos that might trigger a ContentID claim, improving the way MCNs can "fast track" a response to claims they think are bogus, and is promising to more aggressively investigate ContentID abuse.
This seems like a step forward, but I'm still flabbergasted that YouTube took this long to really do anything about that rollout. Google, as a whole, has never exactly had the reputation of communicating particularly well with its users. We've discussed the big faceless white monolith problem before. It's beyond belief that YouTube didn't realize lots of people were about to be hit with ContentID claims when they made the switch -- and while they briefed a few MCNs, they did so in confusing ways that left out many details (and resulted in misleading claims by people that "YouTube had implemented SOPA!"). Furthermore, from a press standpoint, the company was incredibly non-communicative, repeatedly pushing a bland and meaningless "statement" in response to any and all questions, and refusing to answer actual questions.
Google too often has a blindness for this kind of thing, in which it doesn't realize how much what it thinks are minor changes to its systems will directly impact people -- in some cases, directly impacting how they make a living. It still seems like this is Google's big Achilles Heel, and it's something that I'm amazed the company has consistently failed to address over time.
YouTube's ContentID is receiving an awful lot of well-deserved criticism lately, and the company -- true to unfortunate form -- still doesn't seem to realize that it should (a) fix its broken program and (b) actually respond to the criticism. YouTube seems to think that the issue will blow over, but every time there's another bogus takedown/copyright claim, things seem to get worse. The fact that it's allowing major labels to claim the revenue of independent artists is a huge problem that needs to be addressed.
In the meantime, many of the people who have built careers off of YouTube are now speaking out against ContentID as well. Dan Bull, who we've written about many times before, has put up his latest video, entitled, simply FUCK CONTENT ID, and it calls out the company for taking money from independent creators and handing it over to whoever claims the copyright with no legitimate basis (amusingly, Dan also mocks YouTube's "copyright free audio library" which he uses as the base of his song).
There are elements of ContentID that are certainly useful, but since the program has been introduced, it's been plagued with serious problems, providing way too much power to those who make bogus claims. It feels, unfortunately, like YouTube has gotten increasingly complacent on this issue because it has (by far) the majority market share on amateur videos. But things change, and if it continues to make it difficult for content creators, they're going to go elsewhere. And, yes, YouTube is getting hit from both sides on this issue, as it's still fighting its lawsuit with Viacom that claimed that the company didn't do enough to stop infringement. But now the problem seems to be that it defers so easily to claims of infringement that people creating their own content are having it "monetized" by big companies based on nothing. That's not the right solution at all.
Last week, there had been some rumors that YouTube was changing its policies around so-called "let's play" videos, with some arguing that "Google was implementing SOPA" when it came to let's play videos -- and that all videos would have to be previewed first to make sure there was no use of copyright-covered content. That seemed like a clear exaggeration, but over the past few days there have been numerous reports from a variety of different sources about how many of the biggest video game channels on YouTube were suddenly getting inundated with copyright claims, many of which people felt were bogus.
So what's happened? Well, it's not that YouTube "implemented SOPA." Rather it appears to be a combination of pushing out its ContentID "scanning" program to channels that are listed as affiliates to so-called "MCNs" (Multi-channel Networks). MCNs are effectively "collections" of independent YouTube channels, banding together for certain advantages, such as cross-promotion and ad sales across all videos. While most people are familiar with ContentID, as far as I can tell (and despite repeated attempts to speak to multiple people, no one seems interested in explaining the details), it appears that ContentID generally works on newly uploaded videos, whereas going back and scanning existing videos is more targeted. And, it's that back scanning that has been "enabled" here. In other words, if those videos had been uploaded very recently, they might have been hit with the same ContentID claim, but these were "back catalog" videos in many cases, which sort of grandfathered them in. That explains the sudden influx. Going back over all those old videos has turned up a bunch of matches.
Then there's a separate issue: which is that many people claim that the claims are completely bogus. Even though they're on let's play videos, they're not coming from the video game companies, but other third parties. In fact, the big video game companies, like Ubisoft, Capcom and Blizzard say they have no problem with let's play videos and are actually trying to help those impacted in figuring out what to do.
This move is almost certainly a result of the National Music Publishers Association (NMPA) suing Fullscreen, a big MCN, claiming copyright infringement. There are some generally interesting legal questions about whether or not an MCN is actually liable for any infringement by an independent YouTube producer, but some of these MCNs have grown to be quite large, and the publishers want money. YouTube is likely trying to clean up the videos associated with MCNs in one big move to avoid any future issues.
What that means, however, is that it's likely one of the reasons that people aren't recognizing the names making the copyright claims is that the matches aren't on the game play, but rather the music either in the video games themselves (likely in many cases) or that video makers add to their videos in general. To their credit, it appears that many of the gaming companies are actually helping video creators clear that music.
The whole thing is a bit of a mess, but not as crazy as it first appeared. And it's certainly not a case of "SOPAfying" YouTube videos. It's just extending the ContentID scanning to those channels to try to clean out problems and, hopefully, avoid future lawsuits against those MCNs.
That said, YouTube's communications over this have been dismal and have greatly contributed to the problem. The company has put out the identical statement to everyone who's asked (including us):
We recently enabled Content ID scanning on channels identified as affiliates of MCNs. This has resulted in new copyright claims for some users, based on policies set by the relevant content owners. As ever, channel owners can easily dispute Content ID claims if they believe those claims are invalid.
That's... somewhat useless. It doesn't address the reasons or the concerns of the video makers, and has many scared. That is not the best way to explain the situation, and only lends credence to the exaggerated claims that YouTube is helping to kill off let's play videos, when that's not the case at all. It also presupposes an extraordinary level of knowledge that most people don't have of Content ID, copyright, MCNs, licensing, publishing and more. It's basically the opposite of providing the information that video makers actually need -- leaving them freaked out about a massive influx in copyright claims they don't understand. Without a better, more honest and clear explanation, most users are blaming the most obvious party: YouTube.
It appears that YouTube briefed some MCNs on the basics of this change, which is why those rumors came out last week, as the MCNs tried to explain the issue to the affiliates -- but generally did so badly, because this stuff is complicated enough as is, and then you add a game of legal telephone where the people passing on the details don't really understand the issues either. YouTube could have done a much, much, much better job laying out the details of what it was doing and why (and even how that actually should help MCNs by avoiding lawsuits like the NMPA's. But instead, it's got a ton of people freaked out and its communications to those people are almost non-existent other than the cryptic statement which, while accurate, fails to portray the full situation.
Its latest misadventure into "controlling all things Nintendo" was brought to our attention via a post to Reddit's r/games by a prolific creator of Let's Play videos, Zack Scott. For whatever reason, Nintendo is performing a "mass claiming" of Let's Play videos featuring its titles. Scott notes in his post that Machinima has seen these claims increasing exponentially recently, pointing towards this being an active move on Nintendo's part.
As part of our on-going push to ensure Nintendo content is shared across social media channels in an appropriate and safe way, we became a YouTube partner and as such in February 2013 we registered our copyright content in the YouTube database. For most fan videos this will not result in any changes, however, for those videos featuring Nintendo-owned content, such as images or audio of a certain length, adverts will now appear at the beginning, next to or at the end of the clips. We continually want our fans to enjoy sharing Nintendo content on YouTube, and that is why, unlike other entertainment companies, we have chosen not to block people using our intellectual property.
For more information please visit http://www.youtube.com/yt/copyright/faq.html
A few observations on this statement:
1. In terms of the internet, the present will always be relegated to some distant point in the future for Nintendo. The fact that it took until three months ago for Nintendo to join forces with the world's largest video site is astounding. This is probably has something to do with Nintendo's recent shuttering of several Wii channels, many of which were underwhelming and ignored by a majority of its customers. (The "flagship" of the lineup -- the Nintendo channel -- was one of the worst, featuring haphazardly posted content that seemed to mistake throwing darts at a lineup for curation.)
2. Nintendo's self-consciously squeaky clean image? This IP grab is about that, too. Why else would a company that only recently decided YouTube might be a viable outlet use the phrase "shared... in appropriate and safe ways" to justify slapping ads on tons of pre-existing content uploaded by its customers and fans?
3. "...unlike other entertainment companies, we have chosen not to block people using our intellectual property." Good Guy Nintendo says No Blocking! While other "entertainment companies" have blocked thousands of videos, most video game companies don't. With the exception of Sega's promotional push for its new Shining Force title that took the form of widespread takedowns, most gaming companies take a more hands-off approach, realizing that Let's Play videos are a form of advertising that costs them nothing.
4. Nintendo passes the buck on its particular copyright "strategies" by directing readers to YouTube boilerplate. Weak.
Nintendo is well within their rights to monetize these videos and images. But, as anyone who's had experience with situations like this can tell you, being "within your rights" isn't the same thing as "right," either in the moral sense or in the "opposite of wrong" sense.
Nintendo can (and does) monetize gameplay videos using its IP. There are some valid arguments for fair use that can be applied here (Techdirt contributor E. Zachary Knight runs down a few over at Gamasutra), but when it comes to uploaders v. content companies, the algorithm tends to side with the YouTube partner and the registered content. Once Nintendo makes this monetization claim, there's very little the uploaders can do to fight it.
On the plus side, Nintendo isn't actually taking down videos. This means uploaders may lose the income (many uploaders have never attempted to monetize their uploads), but their accounts will remain strike-free. (Unfortunately, having several videos from the same account claimed by ContentID tends not to reflect well on the account holder and will probably be taken into consideration should other infringement issues arise.)
The money gained from applying pre-roll/post-roll ads to Let's Play videos is likely insignificant in terms of Nintendo's annual income. (It's certainly not going to make up for the WiiU's rather inauspicious debut.) Nintendo's past IP battles make this more about control than income. This also builds Nintendo a useful database of "offending" titles that it can easily block or take down by doing nothing more than changing its ContentID options.
I think filing claims against LPers is backwards. Video games aren’t like movies or TV. Each play-through is a unique audiovisual experience. When I see a film that someone else is also watching, I don’t need to see it again. When I see a game that someone else is playing, I want to play that game for myself! Sure, there may be some people who watch games rather than play them, but are those people even gamers?
My viewers watch my gameplay videos for three main reasons:
1. To hear my commentary/review. 2. To learn about the game and how to play certain parts. 3. To see how I handle and react to certain parts of the game.
Since I started my gaming channel, I’ve played a lot of games. I love Nintendo, so I’ve included their games in my line-up. But until their claims are straightened out, I won’t be playing their games. I won’t because it jeopardizes my channel’s copyright standing and the livelihood of all LPers.
There are many better ways Nintendo could have handled this (a monetization split with uploaders, an invitation to upload to Nintendo's official channel, DOING NOTHING...), but the company's antagonistic attitude towards anything it doesn't directly profit from made this situation one of the better outcomes, unfortunately.
From his post: "An entity going the vague but all-encompassing name of "Music Publishing Rights Collecting Society" has made a number of claims on various uploads."
That's not an entity. If YouTube generated that message it's because Content ID identified compositions in the upload to which a portion of the rights may be administered by any one of a number of collecting societies. Our message in these cases now reads "one or more music publishing rights collecting societies" to make this clearer -- that Facebook parody page doesn't help though. Help Center Page is here with the details.
Odd things have been happening over at Youtube this month, affecting gamers uploading "Let's Play" videos. Well, not so much "odd" as "annoying" and "clearly abusive of Youtube's copyright notification system."
Early in February, the name "Agora Aggregator" began popping at various internet locations, like Reddit's r/LetsPlay and Google's product forums. This entity is apparently casting a porous copyright dragnet over a wide selection of gameplay videos, ranging from Super Meat Boy to F.E.A.R. 3, with several stops in between (Max Payne 3, Far Cry 3, I Am Alive, The Walking Dead).
Now, trying to track down Agora Aggregator is an exercise in futility. It very likely doesn't exist outside of Youtube. It's a name that sounds vague enough to be credible but not specific enough to step on any existing company's toes. Here's the general M.O.:
Agora files a claim on a gameplay video, but not the entire video or even a large portion of it. Instead, it files for certain "visual content" located at random points in the upload. The uploader is then notified of Agora's claim. If the uploader challenges the claim, Agora immediately drops it. If it goes ignored, Agora is then given this credit in the About section:
Now that Agora has a "hook" in the video, all it has to do is choose the "monetize" option that Youtube provides, sit back and wait for the video to get views, with a big chunk of the money going to Agora. The reality of the situation is one of annoyance, rather than actual harm, in most cases. The other unfortunate reality is that this sort of low-level trolling on gameplay videos is nothing new. "Companies" using the names IMG Media UK, INgroove, and Netcom have also filed bogus claims in the past.
The bad news is this sort of thing will probably always exist, especially in the case of gameplay videos. Gameplay videos exist in a legal gray area. For the most part, game companies are more than happy to let these serve as free advertising, knowing that watching a video can hardly replace the experience of actually playing the game. (One exception that proves the rule: Sega's massive takedown of anything "Shining Force"-related in "preparation" for the release of a new game in the series.) Some companies even allow uploaders to monetize gameplay videos, provided a portion of the earnings flows back to the developer.
Because of this gray area, many gamers will feel they can't challenge Agora's claim since they themselves do not "own" what they've uploaded. Even if it seems dubious and faintly scammy, the slim possibility that Agora actually exists and has a legitimate claim is enough to deter them from disputing it.
This isn't limited solely to video game footage. An entity going the vague but all-encompassing name of "Music Publishing Rights Collecting Society" has made a number of claims on various uploads. Here's its bio (in full) from its "official" website, which is a Facebook page. (The URL listed on its Facebook page sends you to... MPRCS's Facebook page.)
"Our mission is to file copyright claims so that ads will be placed onto certain videos, and we will be able to make money off of them. We do not seek to have anyone's videos blocked in certain countries or disabled altogether, all we are trying to do is make a bit of money. That's not so bad, is it?"
Sure, it's better than getting videos blocked or disabled, but take a close look at the wording it uses. It pretty much states exactly what it's going to do (make money off the uploads of others), all without feeling the need to demonstrate that it actually has a right to file these claims. There is no other URL for this "company," no list of artists/labels it represents and it has in the past claimed content it clearly has no right to.
They identified my (completely original) song as infringing the copyright of a completely different song that I had never heard of, that I had to search google for, which turned out to be some kind of trance remix of a completely unrelated song…Wtf?
I immediately disputed the claim and received an email from Youtube saying:
“Dear tibetanpunk,
Music Publishing Rights Collecting Society has reviewed your dispute and released its copyright claim on your video, “Sonic Sunset No.2“.” (shameless plug)
Much like Agora Aggregator, MPRCS immediately backs down if challenged. Despite the fact that there's clearly something shady going on, MPRCS sounds ambiguously "official" enough that even Youtube itself makes statements in its defense.
So how do collecting societies affect you as a YouTube user? If you’ve ever received a notice indicating that one of your videos may include copyrighted content administered by "Music Publishing Rights Collecting Society," or “one or more music publishing rights collecting societies,” it means that YouTube's Content ID system identified one or more musical compositions within your video to which a portion of the rights may be administered by a collecting society.
While this information may be true (as Youtube states it), it is highly unlikely that the "Music Publishing Rights Collecting Society" is truly representing anyone but the person who lucked into this low-level abuse of Youtube's copyright claim system. One more strike against this so-called "Collecting Society?" Its profile photo is a watermarked Shutterstock picture.
As for Agora Aggregator, it already appears its trolling days are numbered. In a few short weeks, its system has been exposed, leaving it with precious few successful claims. But whoever's behind this remains undeterred. A new "company," Digital Minds Entertainment, has begun making the same sort of copyright claims against random points in gameplay videos. It may be Agora or it may be someone else with the same bad idea. Some unlucky bastard working his way through Far Cry 3 has hit the bogus copyright claim trifecta.
Even if Agora Aggregator goes down, and Digital Minds Entertainment follows, more will pop up to take their place. The system (such as it is) seems to have the success rate of an untargeted mass mailing -- low enough to be almost negligible, but still high enough to make it a worthwhile venture.
Youtube can't do much to prevent this abuse. It has to err on the side of the rights holders, even if the rights holders don't actually hold the rights. This is a necessity. It allows it to show it takes proactive steps against infringement, a requirement in order to benefit from the Safe Harbor protections. The other issue is the massive volume it deals with -- 72 hours uploaded every minute -- which makes it impossible to police uploads with any level of detail. The system is exploitable, and the people behind these "companies" know it.
Since it can't be stopped, the only method left to battle these trolling "companies" is to expose them as quickly (and loudly) as possible. This is only a stopgap, rather than a solution. What's happening now is mostly an annoyance. The real problems will develop later when uploaders being challenging legitimate claims, assuming them to be invalid, and have their accounts closed down. In essence, Agora (and others) are the boy who cried wolf. Only this time, when the real wolf arrives, it will be the townspeople that suffer.
For those of you who have managed to avoid the viral sensation of February, known as "The Harlem Shake," consider yourselves lucky. People still seem at a total loss how this became "a thing," but it involves the opening 30 seconds of a song released nearly a year ago, called The Harlem Shake, by Baauer, with the first half involving someone in a wacky costume (often involving a helmet) dancing while others around them ignore it, followed by a bass drop and suddenly everyone around is dancing crazily, often involving costumes, stuffed animals (or real animals), people in sleeping bags and much much more. It's gone quite insane (and, yes, we know it's not "the real Harlem Shake" but so what?) with way, way, way, way too many people, companies and organizations all doing their own versions. There were reports of 4,000 Harlem Shake videos being uploaded to YouTube every single day, and over 60,000 being on YouTube already. If you want (and I warn you to be careful), you can spend hours going through video after video. The KnowYourMeme link up top has collected some of the most popular ones. I cannot vouch for how many such videos it takes before you are driven insane, so be forewarned.
Over the weekend Baauer's song hit number one on the charts and it appears to be doing fairly well around the globe. Also, the song has resulted in a sold out show in NY for Baauer and what is likely to be a fair bit of money. That's because, rather than freak out about others using "his" song (which includes a bunch of samples), Baauer and his label Mad Decent have a deal with INDmusic, which helps indie labels/musicians claim YouTube videos via ContentID and place ads on them. So, combine a top selling song on iTunes, plus allowing the free use of it on YouTube (and monetizing it via ads) and it seems like a tidy profit is being made.
So, for a bit, this was looking like yet another story of how letting people build something on your music was enabling a nice way for one artist to make money, without flipping out about "copyright infringement." But... then we learned that it wasn't quite that simple. As highlighted by The Verge, while Mad Decent and Baauer have mostly let people do what they want with the song, they did send a takedown to Soundcloud over Azelia Banks posting her lyrics over the entire Baauer track, and also posting a video:
That quickly turned into a bit of a Twitter fight, with Banks calling out Baauer:
And, from there we get the following exchange:
Of course, it seemed like there absolutely had to be more to this, as it was unlikely that Banks put together that song and video so quickly after the meme took off (especially since the video doesn't reference the meme at all). Indeed, in an interview with the Daily Beast Baauer (real name: Harry Rodrigues) explains:
“I’m not happy about it,” says Baauer. “She had a version that we were going to release because I’m a big fan of hers. We knew she likes to beef with producers. So she laid something on ‘Harlem Shake’ and it was so/so. Didn’t love it. And that was a little while ago, and since all this video stuff happened, our plans all changed. Because of that, we decided to just release the song on it’s own with no vocal version. So we told her, ‘Please don’t release your version.’ And she said, ‘Well, I’m going to put it online anyway.’ And we said, ‘Please don’t. We’d really like it if you didn’t.’ And she did.”
Still, while lots of folks are defending Baauer here (in part because Banks does have a reputation for getting into arguments with people, and in part because she also went on a homophobic rant), she did have a point when she tweeted this:
Art is supposed to be inspiring, and you should be happy when someone is inspired by your art. In fact, one might argue that Baauer's statement to Banks that "its not ur song" could potentially come back to bite him as well. In that same Daily Beast interview, he talks about how he created the song:
“I just had the idea of taking a Dutch house squeaky-high synth and putting it over a hip-hop track,” he says. “And then I tried to just make it the most stand-out, flashy track that would get anyone’s attention, so put as many sounds and weird shit in there as I could. The dude in the beginning I got somewhere off the Internet, I don’t even know where, and the lion roar just makes no sense.” He laughs. “There’s the sound of flames in there, too, it’s just really low.”
He doesn't know where the "dude in the beginning" comes from -- though, the folks at Reddit have figured it out (because Reddit knows everything). You have to imagine that wasn't licensed, though, if he didn't know where it was from. Who knows about all of the other samples. Personally, I think it's great that he created something by building on the works of others, and was inspired to create something that has become such a huge hit. But you'd think that someone who made the song by pulling bits and pieces from others wouldn't be so fast to sling claims of "ownership" back at someone else who built off of his work. Yes, there's more to it than that and, for the most part, Baauer seems reasonably giddy with all the insanity (and he definitely seemed to do a nice job with his Reddit AMA thanks in particular to this exchange).
It would just be nice if artists who really build on the works of others didn't jump to claiming ownership when others build on their works as well.
If you follow the "hot viral video of the week" you probably have seen or heard about Sam Gordon, the 9-year-old girl who is pretty damn good at football, (the American kind for all you foreigners), as shown in an impressive highlight reel her father put together:
As tends to happen with these sorts of things, Sam was everywhere this week, with allsorts of presscoverage including appearances on morning TV shows and such.
Without the music in that video — Jane’s Addiction covering The Doors’ “LA Woman” and The Germs’ “Lexicon Devil” (as part of a medley) and the Beastie Boys’ “Soul Fire” (also in a sense a cover) — this video wouldn’t be nearly as effective, and thus not as viral. Her father Brent Gordon, who originally uploaded the video, chose these songs because they are exactly what this video needs. As any Hollywood director knows, pairing the right music with any video makes it way more effective.
Normally, the Beastie Boys, Jane’s Addiction, The Germs, and The Doors could choose to get paid when a video with their music goes viral like this. But that does not appear to be the case here, at this point anyway.
Sure enough, soon after people started pointing that out -- and even though the video had something like 2 million views lined up already, it went down due to a copyright claim. It looks like ContentID showed up late, because the "takedown" mentions a bunch of possible copyright holders, without saying who made the final call:
After all that, Sam's father, Brent changed the music to something that wouldn't get pulled down -- though people are already complaining that the new music is "lame."
We’re pleased to see that the video is online, because that Sam Gordon is a sight to behold, with amazing moves and no small amount of moxie, which is the main reason people liked the video so much. But it’s a shame that the music is now so bad that we couldn’t even make it through one viewing without muting it. With the other soundtrack, I ended up watching it five times in a row.
And thus it was proven for the umpteenth time that A) The right music makes all the difference in a video, and B) Copyright, while necessary, tends to rain on parades, especially when multiple rights-holders get involved.
Of course, depending on your general position in this debate, you can make one of two arguments here. The copyright hardliners will say that this proves the importance of good music and that Gordon should have paid up in the first place. Those who find problems with today's copyright system will note that it's not like your average person is going to even be able to license, let alone want to pay for, songs to stick on a video like this (especially without knowing that it's about to go crazy viral). The music industry could make this easier with a simple database / store option ("want this song for your non-commercial video? $1 -- click here to buy the license") but they don't seem to want to do that. So, instead, we get this situation where no one wins. The video has crappy music. The good music providers don't get paid. How is that a good solution?
A few years back, we had a post highlighting an absolutely fantastic video by Julian Sanchez about the value of remix culture. The video made a key point that often gets lost in these debates: that remix culture is often more about the culture than the remix, but that copyright law makes that difficult. It focused mainly on a viral remix video that took a song from the band Phoenix, called "Lisztomania," but which was put to video clips of people dancing in various John Hughes films (mainly from the classic scene in "The Breakfast Club.") That was interesting enough, but what was even more interesting was how it then followed that lots of others recreated the video in their own image. So groups got together in various hipster locations (Brooklyn, San Francisco) and created their own videos recreating the dance moves on their own to go with the new song. It was really quite interesting, and showed how important remixing and fair use was to culture, and how it could take something and make more with it.
Fast forward to the present, and even though this video has been up for years, Julian discovered that his original video was taken down on a copyright claim. If you go to it now, you see this:
For what it's worth, this does not seem to be targeted at just Sanchez. In looking around, it looks like a bunch of the "original" videos of the Hughes brat pack dancing to Lisztomania videos are all down with the same message. From this, it appears that it's the publishing company, rather than the band or its label. Kobalt has claimed to be a new sort of publishing company, though this seems like a horrifically old school approach, killing off a popular viral video -- and doubly so with the Sanchez video which almost certainly qualifies as fair use. It was completely not commercial, only used a part of the song, included significant commentary, did not limit the market for the song and clearly was not a replacement.
And, yet, it's gone. Even worse, when Sanchez appealed the takedown, which was rejected, and there appears to be nothing else Sanchez can do:
Note that in this screen, it's not Kobalt, but Glassnote and SME (which I believe is Sony Music). Glassnote is an indie label who released the song, but in partnership with Sony, who handles the distribution.
It's also odd that there doesn't appear to be any further appeals process. After all, just last month YouTube said it had changed its appeals process to avoid exactly this situation. The "old" model allowed whoever made the claim to "reject" the appeal and there was no further action possible. The "new" situation is supposed to require the claimant to file a DMCA notice, at which point the DMCA process takes over.
Users have always had the ability to dispute Content ID claims on their videos if they believe those claims are invalid. Prior to today, if a content owner rejected that dispute, the user was left with no recourse for certain types of Content ID claims (e.g., monetize claims). Based upon feedback from our community, today we're introducing an appeals process that gives eligible users a new choice when dealing with a rejected dispute. When the user files an appeal, a content owner has two options: release the claim or file a formal DMCA notification.
But, as Sanchez notes, there doesn't appear to be any such appeals process available to him (at least not in an obvious manner).
Either way, Glassnote/Kobalt/SME is playing with fire here. First off, taking down such a popular viral video -- one that clearly only served to help promote the song massively -- just seems stupid and shortsighted. But, going further and taking down Sanchez's video commentary on remix culture, which used part of that song seems doubly questionable, seeing as it's almost certainly fair use. It might not be the same issue as the Lenz case, in which Universal Music may get into trouble for issuing a bogus DMCA without properly considering fair use, since it's unclear that any actual DMCA notice was filed (instead, this looks like it was all a problem via ContentID). However, going around and censoring videos that are clearly fair use isn't going to end well. Though, really, YouTube's broken ContentID system isn't helping either.
While some aspects of YouTube's ContentID feature have been quite cool, creating new ways for content creators to monetize their works, there have been significant problems too, especially in taking down legitimate content with little recourse for the uploader. Thankfully, it appears that the folks at YouTube have finally realized that the counter-notification/appeals process for ContentID takedowns was bogus. A lot of people get DMCA takedowns and ContentID takedowns confused, but they're different. With the DMCA, you have an official counternotice process, and if the copyright holder doesn't sue (realistically, file for an injunction), then YouTube puts your content back up after 10 business days. However, with ContentID, there are no legal rules. Google handled ContentID disputes by letting the copyright holder simply "reject" the dispute -- and that was about the end of it, even in cases where they were putting ads on someone else's content. Now, however, YouTube has revamped the appeals process so that if someone disputes a ContentID takedown, the copyright holder would need to file an actual DMCA claim if they want to keep claiming infringement:
Users have always had the ability to dispute Content ID claims on their videos if they believe those claims are invalid. Prior to today, if a content owner rejected that dispute, the user was left with no recourse for certain types of Content ID claims (e.g., monetize claims). Based upon feedback from our community, today we’re introducing an appeals process that gives eligible users a new choice when dealing with a rejected dispute. When the user files an appeal, a content owner has two options: release the claim or file a formal DMCA notification.
This is a much more reasonable process that doesn't allow people claiming copyright to effectively take over a video regardless of whether or not the video's uploader disputes it. This probably should have happened a long time ago, but it's good to see it finally has.
The announcement also claims that their system is becoming better at avoiding "invalid claims." It sounds as though there's some sort of threshold now, where if something is borderline, it goes into a manual review queue, rather than automatically being taken down. So the more "gray area" cases will get a human review first.
We'll see how all of this works out, but it's good to see that Google is taking many of the complaints about ContentID's overeager takedowns seriously.
