Tag: Maria Schneider

Intense Accusations in Schneider Class Action

When one files an allegation of fraud in court, one must present evidence. No, I am not referring to that freak show of litigations about the 2020 election that have been tossed out by over fifty federal courts, including the Supreme Court. I’m talking about YouTube. As discussed in this July post, composer Maria Schneider leads a class action lawsuit against YouTube, alleging that the platform knowingly facilitates copyright infringement of the musical works belonging to the putative class.

At the heart of the Schneider complaint is the fact that YouTube makes its copyright management system Content ID available only to institutional rightsholders with huge catalogs, while leaving independent copyright owners to fend for themselves—i.e. one DMCA notice at a time with no automated detection of infringing files. As noted in that earlier post, Schneider’s complaint presents several arguments whereby YouTube could be found to have voided its DMCA safe harbor, including allegations of “red flag” knowledge of infringement. This suit is also occurring at the same time that Congress has been reviewing the DMCA; and the chronic allegation that platforms like YouTube play fast-and-loose with the knowledge standard will very likely be addressed in any proposed legislative changes.

In September, YouTube filed a counterclaim seeking dismissal on the grounds that Schneider’s co-plaintiff Pirate Monitor LTD used anonymized agents to “fabricate infringement claims by having its own agents upload material from its copyrighted works to YouTube.” The platform alleges that Pirate Monitor engaged in this practice in order “to obtain access to [its] copyright management systems.” In addition to its allegation of fraud, YouTube avers that Pirate Monitor’s actions are an example that justifies its policy of limiting access to Content ID because, it states, some parties cannot be trusted with such tools.

That is one lulu of an accusation, to which Pirate Monitor responded in a brief filed in November that YouTube provides no evidence in its counterclaim of any relationship between the anonymized uploaders of the files in question and Pirate Monitor. The response argues that YouTube’s counterclaims “rest solely on conclusory allegations,” that its assertions of fraud do not meet the evidentiary standard under the rules of civil procedure, and that YouTube lacks the standing to request injunctive relief for the alleged harm caused by the alleged fraud. More broadly, the response accuses YouTube of trying to change the subject, “to spin this case away from being about YouTube’s facilitation and inducement of copyright infringement, and make it instead about who can and cannot be ‘trusted’ to use Content ID.”

I am not about to assert any comments of a factual nature without facts in hand. We’ll see what evidence is, or is not, presented. But I will reiterate that the soul of Maria Schneider’s complaint expresses precisely what hundreds, or thousands, of independent creators contend with on a piracy-rich landscape like YouTube. As noted in the first post, this suit reprises several matters of unfinished business left in limbo after Viacom and YouTube settled their copyright infringement suit in 2014.

At issue then, as it remains today, is evidence suggesting (or even proving) that YouTube’s operators have knowingly attracted and retained highly lucrative market-share by walking the razor’s edge of its responsibilities under the DMCA. In that spirit, YouTube’s preliminary statement in its counterclaim is a cue for a spit-take if nothing else. “Since its founding in 2005,” the brief begins, “YouTube has gone far above and beyond its legal obligations to assist copyright holders in protecting their rights.”

That self-congratulatory assertion hardly squares with the record. When Google acquired YouTube for $1.65 billion, the platform had achieved category-killer status based on a policy of copyright infringement. And although YouTube developed Content ID as a semi-compromise with the corporate rightsholders, it has done nothing for the countless small and independent creators whose works are used and monetized without permission. That story doesn’t even satisfy the industry’s bombast about supporting entrepreneurial creators, let alone anyone’s definition of “going above and beyond.”

Class Action © Suit Against YouTube is a BIG Friggin’ Deal

When Viacom et al, in 2014, settled their copyright infringement suit against YouTube, that outcome had significant consequences for millions of independent creators. For one thing, the settlement left YouTube and other major platforms to over-emphasize the district court’s summary judgment that the DMCA had fully shielded the video platform against any liability in that case—this despite the appellate court having found that holding to be premature because there remained triable issues of both law and fact. Thanks to the settlement, however, those questions were never adjudicated. (See post here noting Viacom is unfinished business.) But now, some of those same questions of law, and very similar questions of fact, have been reprised in a class action suit, filed against YouTube on July 2nd, by Grammy winning composer Maria Schneider. And this case is going to be a doozy.

For one thing, the class of creators represented by Schneider has little motive to settle before the courts thoroughly weigh every aspect of the complaint. Further, the plaintiffs have about a decade’s worth of evidence, and experience with the DMCA, that Viacom et al did not have when they filed against YouTube in 2009. Further, the Schneider complaint reminds us that YouTube was built on mass copyright infringement that it still thrives on mass copyright infringement.

In this case, as in Viacom, plaintiffs cite evidence that YouTube’s founders clearly recognized that their platform was as existentially dependent on hosting infringing material as any pirate site on the web. “[A YouTube] founder argued against the company removing obviously infringing videos, claiming that site traffic would drop by 80% if it did so,” the Schneider complaint avers. At that time, the Google Video platform, which did monitor and remove infringing material, could not compete with what Google then called the “rogue” YouTube.

So, naturally, when Google purchased the “rogue” YouTube in 2006 for $1.65 billion, “[They] chose to continue YouTube’s aggressive policy of allowing obviously infringing videos to be uploaded with zero ‘friction’ and no screening, thus allowing infringing and illegally posted videos to be played and monetized by YouTube unless and until a takedown notice was received from the copyright owner,” the complaint continues.

Then, under pressure from the major, corporate rights holders, YouTube created Content ID, the platform’s automated system, which identifies protected material, alerts rights holders when their works are uploaded, and gives them options as to what to do with those uploaded files. But this system is not available to the vast number of independent creators like Maria Schneider. The complaint states, “Only approximately five percent or less of all applicants who attempt to sign up for Content ID are approved for its use.”

Keep in mind that when I say “independent” creators, I am not referring to some singer/songwriter you haven’t heard of and has a hundred views on the platform. “Independent” comprises, for instance, thousands of musical artists with substantial fan bases and multiple albums (songs you hear on the radio), but whose rights are not managed by some large label or publisher YouTube wants to try to placate. This is not to suggest that the larger rights holders are satisfied by the state of enforcement. To the contrary, they’ve made it quite clear that the volume of infringement, even with Content ID, is unacceptable. I merely mean to emphasize that the class referred to here as “independent” is very valuable when monetized.

Left out of the Content ID program, countless independent rights holders have been trying for years to fend for themselves—manually sending one notice per infringement via the DMCA notice-and-takedown provision. And what enables YouTube to exploit this class of creators is the presumption of immunity under the “safe harbor” provisions of the DMCA. See post here for more detail, but the basic premise was that, as long as a platform meets certain conditions, taking certain actions to remove infringing material, it cannot be held liable for infringing uploads by its users.  

But now, the Schneider complaint makes a compelling argument that YouTube had voided its safe harbor immunity vis-à-vis the plaintiff class in this litigation. Among other interesting aspects of this case, it is the first time, in a long time, that anyone will ask the court to articulate the law on some critical DMCA matters that have otherwise been left to the anecdotal and editorial buzz of the blogosphere.

As just one example (and a bit of unfinished business in Viacom), anyone who follows these issues will be eager, or perhaps anxious, to know whether the court ultimately agrees with Schneider that YouTube has both “actual” and “constructive” knowledge that it hosts infringing material. What constitutes “knowing” when material is infringing is a hotly contested topic, and one that will be of particular interest to the Senate Judiciary Committee in its ongoing review of the DMCA’s efficacy since its passage in 1998.

There will be plenty more to write about this case, perhaps digging into some of the legal nitty-gritty. YouTube’s response will almost certainly be a motion to dismiss, arguing that the platform is unequivocally shielded by the DMCA safe harbor. Consequently, the district court will have to weigh the full scope of Schneider’s multiple arguments that the platform has vitiated that liability shield, and whether any of those allegations implicate triable issues of law and fact. And, as mentioned above, that’s exactly what the Second Circuit Court of Appeals decided in 2014. So, this should be quite a show.

Implications of YouTube’s Copyright Match System

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.

Hypocrisy Much?

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.

Competing Narratives

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.