Inside YouTube’s Massive Copyright Wars

The battle between YouTube stars and copyright holders over fair use laws is shaping the future of digital content

Illustration: R. A. Di Ieso
Jul 02, 2016 at 9:00 AM ET

In November 2015, I Hate Everything, a YouTube channel featuring videos that skewer pop culture byproducts from Bronies to “The Garbage Pail Movie,” eviscerated the movie “Cool Cat Saves the Kids.” Soon after, the YouTube video was flagged for copyright infringement by the film’s director.

But, many believe the director was less concerned with copyright, and more with his movie’s negative reviews.

That story, recounted in another YouTube video called “What’s the Fair Use,” is one of several accounts of videos whose creators allege were unjustly flagged or blocked. These creators say they’re battling axe-grinding copyright holders who, they say would never win in court, but are able to bury negative reviews through the auspices of a seemingly legitimate copyright complaint, tying up the creators’ work, and livelihoods, in the process.

Nostalgia Critic who makes commentary videos on Channel Awesome, also endured 23 days without income in January when a review of the movie “My Neighbor Totoro” was flagged on his channel.

These are just two of many entrepreneurial YouTubers who, in recent years, carved out a financially lucrative niche by recording videos which satirize or provide commentary using portions of copyrighted music or movies. But in the last 12 months, a wave of creators claim they’ve been wrongly flagged, penalized, or sued for copyright infringement through YouTube’s Content ID filtering system. When this happens, they lose money and subscribers as they navigate the lengthy resolution process. But now they’re fighting back, even if that means fighting with each other.

Recently, Ethan and Hila Klein, who run the satirical YouTube comedy channel h3h3Productions, made a video mocking the content of another creator, Matt Hosseinzadeh. Hossienzadeh filed a lawsuit, claiming they used too much of his original content, Time reported. The Kleins, who have 1.6 million subscribers and earn about $6,000 a month from the channel, claim they didn’t violate anything, and took to video to say so in May. In response, sympathizers and fellow creators raised nearly $170,000 to aid in their legal defense, most of which flooded in within 24 hours.

“They didn’t give us money because they like us,” Ethan Klein told Time of the donations. “They did it because they want to protect that principle—to show them that we can’t be bullied.”

On social media, the hashtag #WTFU is also full of examples of frustrated creators who say they’ve been abused by the Content ID system.

Content ID is YouTube’s internal system for honoring the the DMCA takedown system, drawn from the Digital Millennial Copyright Act of 1998, which requires that copyright holders use a takedown and notice system to let users know they’ve infringed on copyright.

Recent litigation over the takedown system involving about 30 seconds of Prince’s “Let’s Go Crazy” just altered the act to dictate that copyright owners must consider fair use before issuing these notices.

More Why It’s So Difficult To Find Prince’s Music On YouTube

Fair use is a very broad legal notion that, in the United States, at least, says that you can use passages or excerpts of a copyrighted work to discuss it, review it, mock it, or educate with it, without having to ask for permission or pay the owner of that material.

“The problem is, it’s not black and white,” intellectual property attorney Michael Lee, who represents the Kleins as part of the firm Morrison / Lee, told Vocativ. “What one person says does violate [fair use], another person says doesn’t. It’s ultimately up to a judge or jury, and by the time these creators get there, it’s two years from now, and you’re $100,000 into attorney fees.”

And while YouTube creators are fighting for a more generous fair use policy, the music industry is waging its own war with YouTube on the other side, saying that swatting down the myriad instances of unauthorized content uploads is too cumbersome. The likes of Trent Reznor, U2, and Taylor Swift all jumped on the anti-YouTube train, arguing that the royalties aren’t enough, nor is the control over which videos the music appear in. Reznor even went as far as to claim that YouTube was built on the back of stolen content.

In lieu of the current process, which requires copyright holders to manually trigger a takedown notice for copyright infringement, music industry advocates are pushing the government to adopt a universal system similar to YouTube’s Content ID that would filter, and then automatically take down the infringing videos without any notice.

The way the system works is pretty simple. In this video on YouTube’s site explaining Content ID, it indicates that copyright holders upload the material they own—movies, music, TV shows, video games—to YouTube’s database. That database can then identify anytime someone else uploads a video using that same content, and then it gives the copyright holder a few options: block it, leave it up, or try to monetize it in the form of ads. In a separate section explaining what a Content ID claim is, YouTube reassures creators that if they find themselves with a claim against them, they “probably” aren’t in trouble.

For its part, YouTube says that it paid out more than $3 billion to record labels so far, and that most of music content up on the site is by the choice of the rights holders. It also argues that compared to Spotify or Apple Music, the amount of time spent listening to music on YouTube is relatively small.

Responding to critics in an open letter earlier this month, Hank Green, who runs the YouTube channel Vlogbrothers, not only argued that the current system works when used properly, but that “being on YouTube is good for the music industry, and everyone knows it.”

Last year, in response to criticism about not giving creators enough protection, YouTube launched Fair Use Protection, saying that in the event of a lawsuit, they would indemnify creators for up to $1 million legal costs if the takedown resulted in a lawsuit. But YouTube acknowledges it can only offer this to “a small number of individual videos each year.” And creators can’t request the help directly—YouTube says it’ll find you if you’re a good fit.

And even lesser-known YouTubers who don’t go negative in their content say they’ve been sideswiped by the same blunt swings of Content ID. YouTuber Shad Brooks, whose channel Shadiversity has only 9,000 subscribers and makes videos about self-proclaimed geeky interests like medieval armor and castles, recently reviewed the use of weapons and armor in the movie “Last Knights” and found himself in a flagging nightmare, risking a six-month long strike on the video and effectively demonetizing it.

“I was stunned,” Brooks explains on the video. “I didn’t know what it was, I just found I had a massive penalty on my account that restricted me from making any videos over 15 minutes.”

And what’s more, it was a restriction that if disputing risked him getting potentially sued by Lionsgate, who held the copyright, or enduring a strike on his account that could last six months.

“YouTube says it cares about its content creators and have offered some wonderful tools for us to use,” Brooks tells Vocativ via email from Australia. “But when it comes to copyright, their system tremendously favors the music and movie industry over YouTube content creators with their content ID system of guilty until proven innocent, which certainly indicates who YouTube is more concerned about pleasing and it’s obvious why.

“It’s a matter of what YouTube feels threatened by,” Brooks continues. “If it feels threatened by the music and movie industry it will take measures to appease them, which it has. I don’t think YouTube has ever felt threatened by the loss of its content creators, but if more and more creators get onboard and express their displeasure, hopefully it might scare Youtube into doing something.”

He ended up disputing the claim against him and eventually prevailed, but only because he said he knew he “hadn’t broken laws, and had made the video under the exemptions of fair use.” Brooks says he’s ultimately stopped reviewing games and films because it will lead to more of these situations, but feels trapped because no other platform provides the same exposure as YouTube.

More The Secret World of Unsearchable YouTube Videos

Lee, the Klein’s attorney, concedes that some people on the site are violating fair use. “A lot of people throw up content they don’t own, and put a disclaimer that this is fair use, and it isn’t. But common reaction videos that have a newsworthy purpose, those are the people we are looking to protect when they get strikes against them.”

To help other YouTubers who feel they’ve been sued wrongfully, the Kleins took a community-minded approach, and used the remainder of their $170,000 legal fund to create a legal defense called the Fair Use Protection Account. Another group of YouTubers, led by Hank Green, also launched the Internet Creators Guild, that they say will give creators business, legal, and press resources to wade through the muck. It’s all illustrative of a serious shift in the way creators are responding to feeling like their hands, and livelihoods, are tied up in a system that can mess with them at will.

“People are just really angry,” Lee says. “And FUPA is in place to help people being attacked who are actually just exercising their First Amendment right to comment on other people’s works. It’s happening on all online platforms right now, not just YouTube. We need a better system, but that would require an act of Congress.”

More Turkey Blocks YouTube and Twitter

The trouble is that no one is really clear on either side whether they’ve violated fair use or have a case. “There is no percent rule,” intellectual property lawyer Daliah Saper, who handles cases on both sides of the YouTube issue, told Vocativ. “Like, I only used five percent, or I’ve changed it in some way. It comes down to various factors—was it done to make money, was it a mockery or a parody, is it a derivative work. The problem of course is this stuff needs to be litigated. And you might be screwed. It’s three strikes and you’re out, and blocked from the platform. And for a company with a lot of subscribers, it’s devastating. You can’t rebuild that by opening a new account tomorrow.”

Brooks also wonders why there is no penalty for these companies who flag videos and put creators through endless bureaucracy, freezing revenue in the meantime, when it seems clear (to the creators) that the copyright holder hasn’t considered fair use.

“Many copyright strikes get lifted when content creators issue a counter claim against the strike because those who issue the takedowns actually know the videos are protected under fair use and would lose in court,” Brooks says. “Thus relying on actual legal action before issuing a copyright strike would result in far, far fewer unjustified takedown notices.”

YouTube was not available for comment, but pointed Vocativ to an announcement in April, wherein they say that “Even though Content ID claims are disputed less than 1% of the time, we agree that this process could be better.” As a result, YouTube is working on a system that allows videos to continue to earn revenue during a claim dispute, holding that money until it’s resolved. They say that their team “also restricts feature access and even terminates a partner’s access to Content ID tools if we find they are repeatedly abusing these tools.”

But Saper, says that may be too light a touch. “What we need to focus on is the mechanism to dispute a takedown,” she says. “There should be a steep penalty for those who abuse it.”

Until that happens, you can be assured that content creators and copyright holders will continue to duke it out behind the scenes of videos watched by millions.