Last month, the European Union voted against key copyright enforcement provisions as part of its Digital Single Market initiative. Specifically, the proposal known as Article 13 called for the 28 member states to work with multiple stakeholders to develop and implement filtering technology that would, in theory, prevent unlicensed, copyrighted works from being uploaded onto user-content-supported platforms.
Article 13 was labeled by its opponents as a call for “censorship machines,” and as usual, the refrain was shouted from the rooftops that adopting any such filtering would lead to the end of free speech online and destroy “all that is good and pure” about the internet. To be sure, the tone and methodology of the campaign against these provisions reeked of Silicon Valley money and tactics, but whether you believe that or not, one talking point among critics stands out, which inspired this post: that the EU’s call for filtering would harm new creators.
Granted, “creator” in the rhetoric of groups like EFF includes literally anyone who posts anything online; but if we limit our data to that paragon of new creators—the successful YouTuber—YouTube itself made an interesting announcement almost concurrent with the defeat of Article 13. The platform launched its Copyright Match tool to protect YouTubers against unauthorized re-posting (freebooting) by other YouTubers.
Traditional rights holders have earned this moment of schadenfreude after being lectured to for years to get on the future bus and quit whining about their copyrights. They should follow the example of “new creators” working in “new models” that “bypass gatekeepers” and obviate the need for copyrights. Of course, it was inevitable that as YouTubers became entrepreneurs, they would feel entitled to the revenue from their labor (as they should) and that YouTube would have a vested interest in protecting the copyrights of its profitable video-makers—at least from other video-makers.
Using technical measures one might call “filters” (or dare we say “censorship machines”?), the new Copyright Match system works by identifying the first upload of a new video and associating that file with the presumptive owner of the work. Then, if and when matching videos are uploaded to YouTube, the original creator is notified and given the option to do nothing, to ask YouTube to remove the Match, or to get in touch with the uploader of the Match.
If this sounds to the experienced observer like an intramural version of a take down/stay down provision achieved through technical measures, that’s because it is. And experienced observers probably remember that all previous proposals for take down/stay down, whether statutory or technological, have been labeled by industry-funded “activists” as internet-killing initiatives. In fact, during the May 2016 hearings about the DMCA, one of the dumb-but-effective talking points was that any mandate for such technical measures would “entrench” the market dominance of YouTube. (Yes, laughing through tears is the right response here.)
Traditional rights holders who have spent hours of their lives trying to identify and stop unlicensed uses of their works on market-dominating YouTube will quickly recognize the duplicity in launching Copyright Match. “Why should only their ‘chosen’ get access?” asks Grammy-winning composer Maria Schneider, one of many artists who will attest to the opaque and labyrinthine Content ID system rights holders theoretically use to track and control use of their works on YouTube.
What is not generally understood is that even getting access to Content ID varies wildly depending on a rights holder’s relative presence on YouTube and his/her interest in monetizing unauthorized uses vs. taking down unauthorized uses. Guess which one YouTube favors. Again, Schneider explains …
“YouTube always says that independents like me, to whom they’ve denied ContentID, can get access to the same tool via a third party. But what they don’t admit publicly is that this is only possible if we’re willing to monetize at least some of our work. So, independents like me, who want no part of monetization and simply want to block illegal uses of our works are just out of luck. And I might add that this technology we’re wanting to access has actually been around for twenty years—longer than YouTube has existed!”
I spoke to an independent artist, who prefers to remain anonymous for fear of retaliation by YouTube’s Content ID group. He does have Content ID and acknowledges that he’s probably a “thorn” in the side of YouTube’s Copyright Department team because he actively employs the system only to stop unlicensed uses of his compositions and sound recordings. And lest anyone think he’s responding to “new creators” making possible fair uses of his music, his most important Content ID-related takedowns have been aimed at global brands and Fortune 500 companies using his music for marketing purposes without a license.
It’s worth noting that the fact that this artist chooses to remain anonymous due to concern that YouTube would delete his Content ID account out of spite speaks volumes against every claim of tech-utopian bullshit Silicon Valley and its network of EFFing dissemblers have been slinging for years. As David Lowery explained in 2016, YouTube is a monopsony, a market with a single buyer, which means they get to make, break, and change the rules as often as they like, and the “sellers” can just eat it.
In this regard, it will be interesting to see if Content Match leads to disputes YouTuber-to-YouTuber and how the company will handle these, if it does. For instance, it is not clear at this point that YouTubers whose uploads are wrongly identified as “Matches” will have any kind of counter-notice remedy available to them.
Although the company’s video explaining the new system urges YouTubers requesting Match takedowns to “consider fair use,” it will be truly fascinating to see whether YouTube gives a damn about fair use among its own microcosm of creators. For sure, general users of the platforms have never been effectively dissuaded from uploading a wide range of files that could never qualify as fair uses.
None of this should be taken as a dig against YouTubers. To the contrary, I think many of them are brilliant artists and deserve to protect their interests and rights as much as any other creator. But this apparent initiative to protect their interests points to another aspect of YouTube’s ever-changing relationship to copyright enforcement and its relevance to the fight over Article 13.
Don’t Let the Internet Become YouTube?
Not that long ago, YouTube was consistently cited as the apotheosis of the utopian belief that the web will empower creators without gatekeepers—and without copyrights. But where this Copyright Match announcement becomes intertwined with the campaign against Article 13 is that some pundits against the proposal lately cite YouTube as a cautionary tale—asserting that the platform’s often-inconsistent application of copyright protection policies and technical measures is exemplary of what should not be done internet-wide pursuant to Article 13. The claim appears to be that because YouTube’s Content ID system has allegedly fostered rampant false strikes, resulting in unfair channel deletions, this generalized stifling is what the “entire internet would look like” if the EU moved forward with the kind of filtering proposed.
While there is certainly anecdotal evidence—some of it compelling—of Content ID error and abuse leading to improper strikes on YouTube, I have yet to see any evidence to support the claim that this problem is both rampant and increasing across the platform. As is often the case, activist groups or observers who have no skin in the game tend to exaggerate anecdotal evidence into statistical assumptions. Or as our anonymous artist puts it, “In 100% of the anti-Content ID statements I’ve ever heard over the years, 100% of the complainers had 0% vested interest in the system: they’re either Google-funded anti-copyright groups or individuals on some kind of personal crusade.”
In this creator’s direct experience with false identifications, he notes that “With about 100,000 Content ID claims in my dashboard since late 2012, I can say that YouTube has delivered me a mistaken ID about 10 times. The anti-copyright crowd will take that as evidence that the system needs to be dismantled or destroyed. I just don’t get it. The perfect shouldn’t be the enemy of the good.” And that’s for creators, who can avail themselves of Content ID, which does not include the creators identified by Maria Schneider who do not have access to any remedy via Content ID.
So, in context to the proposal that Article 13 filtering would “stifle new creators,” we have at least three narratives that compete and crisscross in ways that can be hard to track, if you’re not directly engaged with these systems. First, because Copyright Match is a response to YouTuber complaints about freebooting, it reveals that “new creators” don’t like copyright infringement when it happens to them (ergo copyright is not obsolete). Second, Copyright Match implies that filtering technology of this nature can be implemented without destroying a whole platform or stifling new creators. And third, Copyright Match is at least indicative of technology that could help non-YouTuber creators enforce their rights, but it will not be made available to them because it isn’t in YouTube’s interest to do so.
One thing the introduction of Copyright Match illustrates for sure is that creators are creators—whether traditional or new, they feel a sense of ownership in the products of their labor. And from this premise comes the foundation of copyright and systems for protection that will begin to make “new models” look a little more like “old models.” It’s what happens every time a business discovers it is codependent with talented people.