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We Have Destroyed Copyright Law

2019-02-01 · explainer · Hank · 12:17 · watch on YouTube

Topic: Internet & YouTube · mode: Explainer · tags: self promotion

Prompted by a rights holder blocking John's Tuesday video with sports clips, Hank explains YouTube's Content ID claims, blocks and strikes, defends the claiming system while naming its flaws, and argues that copyright as written is broken and online is now governed by platform policy rather than law.

What is said

The parts of the video and what is said in each (★ — how much it matters to the video).

00:00:00 — John's blocked video; piracy before and after the internet, Napster and early YouTube, Viacom's suit

  • ★★ Hank says John's Tuesday video included clips of hockey, soccer and football games John did not own, and one company owning some of them blocked it on YouTube. — 00:00:00 · John Green, YouTube
  • ★ Hank says piracy was excruciatingly slow before the internet but he did it anyway, recording radio mixtapes and trading fan-subbed anime tapes. (playful) — 00:00:16
  • ★★ Hank says the internet, first through Napster, made it very easy to instantly distribute other people's property, and it didn't feel wrong. — 00:00:29
  • ★★ Hank says YouTube would not be what it is without pirated Family Guy and Daily Show clips, and Viacom sued it over them for years. — 00:00:43 · YouTube

00:00:58 — How Content ID works: Hank's claimed songs, the four options for rights holders, automated rules, takedowns

  • ★★ Hank says that to keep existing YouTube had to build a ludicrously complicated technology checking every moment of every upload against a vast library of content. — 00:00:58 · YouTube
  • ★★★ Hank argues that neither YouTube nor the rights holders actually want to stop copyright violation. — 00:01:12 · YouTube
  • ★★ Hank says he often uploaded others' content, like a music video for a Willie Nelson song and his arguably parody song The Subway Where I Used to Go; none were blocked, only claimed, their AdSense money going to the labels. — 00:01:27 · Vlogbrothers, Google
  • ★★ Hank explains that when Content ID finds a match, the rights holder can track the video, claim and monetize it, block it in some or all countries, or take it down with a copyright strike. — 00:01:56 · YouTube
  • ★★ Hank says rights holders set filter rules, simple or complex (e.g. claim views from Croatia), and the process is almost never done manually. — 00:02:26
  • ★★★ Hank says only the takedown is a legal step: the only one not automated, the only one requiring an electronic signature, and the most impactful. — 00:02:40

00:02:55 — Why random strikes and claiming free creators to take risks; the claiming system as genius (Elle Mills example)

  • ★★ Hank says a copyright strike affects a channel's ability to monetize, and channels with three strikes can be deleted with all their content. — 00:02:55
  • ★★ Hank says a strike comes only if the rights holder decides to give one, which from a creator's perspective is uncommon and completely random. — 00:03:04
  • ★★★ Hank argues this policy encourages creators to take risks, which is good: it frees them to do more interesting things, makes intellectual property more malleable, and lets rights holders allow uses that benefit them. — 00:03:24
  • ★★ Hank says losing monetization on a single video, the most common outcome, isn't a big deal for most creators. — 00:03:38
  • ★★★ Hank calls the claiming system pretty genius: big companies that would otherwise lobby Congress to shut YouTube down get a whole new income stream instead. — 00:03:44 · United States Congress, YouTube
  • ★★ Hank's example: Elle Mills can use Walking on Sunshine, risk only her YouTube revenue and still grow her audience, and he can use her footage without asking since the worst case is lost monetization. — 00:03:53 · YouTube

00:04:15 — Two flaws: only large rights holders get in, and the system is easy to abuse (NASA public-domain hypothetical)

  • ★★★ Hank names the first big flaw: only large rights holders have access to Content ID; independents can hardly get in, and YouTube never will let everyone in, partly because it is easy to abuse. — 00:04:15 · YouTube
  • ★★★ Hank names the second flaw: the system is very easy to abuse, sometimes even accidentally. — 00:04:35
  • ★★ Hank's hypothetical: if The Daily Show claims a clip containing public-domain NASA footage, everyone else using that footage gets claimed, since Content ID can't tell the parts apart. (hypothetical) — 00:04:44
  • ★★★ Hank says false claims have been a huge issue since Content ID began and still are, especially for small and medium creators, who have basically no recourse at a third strike. — 00:05:13

00:05:40 — Safe harbor laws, why the FA cannot sue small creators, and how the law stops mattering once YouTube satisfies it

  • ★★★ Hank concludes the system has problems but works: a creative and economic ecosystem built on policies and individual choices, not on the law. — 00:05:40 · YouTube
  • ★★ Hank says this is possible because of safe harbor laws, including a big US one that says rights holders cannot sue YouTube for laws broken by its users. (hedged) — 00:05:46 · United States, YouTube
  • ★★ Hank says the Football Association can block or take down their video or strike them, but can't really sue, since lawyers would cost more than their company has in the bank. — 00:06:09
  • ★★ Hank says it is good that safe harbor laws spare YouTube responsibility for creators' dumb decisions, since even trustable creators like John and him can't be trusted not to break the law. (playful) — 00:06:47 · YouTube, John Green
  • ★★★ Hank argues that once YouTube satisfies the law, the law doesn't matter anymore, which is not how it should work: breaking the law should bring fines or arrest, not claims or takedowns. — 00:07:07 · YouTube
  • ★★★ Hank says copyright was not designed for a world where everyone is a distributor, let alone a rights holder; what governs is YouTube policy informed by law, with consequences as significant. — 00:07:20 · YouTube

00:07:39 — Disputes and fair use, Crash Course Intellectual Property, when to dispute a claim

  • ★★ Hank believes challenging a takedown or block makes a strike much more likely: the FA didn't strike their channel, but challenging its block would annoy it because a human would have to deal with it. — 00:07:39
  • ★★ Hank says most of these disputes come down to the fair use doctrine, which creators like him often claim is simple but is not. — 00:07:55
  • ★★ Hank recommends the Crash Course Intellectual Property episode explaining how unsimple fair use is and other ways copyright law works poorly today. — 00:08:08 · Crash Course
  • ★★ Hank says there are not enough lawyers alive to argue all the fair use cases YouTube has created. (playful) — 00:08:20 · YouTube
  • ★★ Hank says courts have not been consistent at all in deciding what is and is not fair use. — 00:08:20
  • ★★ Hank advises disputing claims made in error or with a good fair-use case, the only way the system works, but not claims on a song used Hank-Green-style just because it made the video better. — 00:08:43 · Hank Green

00:09:05 — Was John's video fair use; selective takedowns of content rights holders dislike

  • ★★ Hank judges John's video probably not fair use, but argues it was excellent FA Cup promotion and even the English Football Association would agree it is better up than blocked. (hedged) — 00:09:05 · John Green
  • ★★ Hank raises, without settling, whether rights holders should be allowed to take down content they dislike while leaving up content they like. — 00:09:28
  • ★★ Hank says independent creators in drama feuds have escalated by issuing takedown notices and copyright strikes against channels they are feuding with. — 00:09:37

00:10:07 — Copyright governed by platform policy, 'citizens of corporations'; copyright as written is broken (the GIF example)

  • ★★★ Hank says no one takes this to court; copyright today is only peripherally about law and mostly about the policies of platforms on which we run our businesses and lives, making us kind of citizens of corporations. — 00:10:07
  • ★★ Hank says YouTube's creator-friendly changes, like holding claimed videos' money during disputes instead of paying rights holders at once, came because creators yelled, almost like a government, not for legal reasons. — 00:10:34 · YouTube
  • ★★★ Hank says that for him YouTube policy matters far more than the courts when it comes to copyright. — 00:11:03 · YouTube

  • ★★★ Hank argues copyright as written is fundamentally broken: everyone constantly breaks the law and no one cares. — 00:11:12

    “copyright as written is fundamentally broken”

  • ★★ Hank shows a GIF he doesn't own: everyone agrees GIFs are okay because culture blew past the law. — 00:11:26

  • ★★ Hank says somewhere between GIFs and soccer highlights there is a line no one can locate, and governments are not defining it. — 00:11:36
  • ★★ Hank urges viewers in the EU to look into Article 13. — 00:11:40

00:11:49 — Article 13, power over law, a hint about John's video, sign-off

  • ★★★ Hank calls Article 13 pretty scary: it makes intellectual property much stronger, which in his opinion probably makes creativity a lot weaker. (hedged) — 00:11:49
  • ★★ Hank concludes that all this is much more about how we feel, what seems right and existing tiers of power than about what the law says, and it is a mess. — 00:11:56
  • ★ Hank hints that, if John looks closely, he might be able to watch his blocked Tuesday video, slightly modified. (hedged) — 00:12:07 · John Green

Threads in this video

Mentioned

Central: Content ID · copyright · YouTube

Also: People: Elle Mills · Gotye · Willie Nelson

Projects: Crash Course

Works: Family Guy · The Daily Show · The Subway Where I Used to Go · Walking on Sunshine

Organizations: European Union · Google · Napster · NASA · The Football Association · United States Congress · Viacom

Concepts: fair use · GIF · intellectual property · public domain · safe harbor

Places: Croatia · United States

Events: FA Cup

Products: Google AdSense

Policies: Directive on Copyright in the Digital Single Market

Memes: GIF pronunciation

Also centred on Content ID: The Bizarre State of Copyright

Also centred on copyright: August 31: Copyright and Airports · Top 5 Reasons ████ ██ ██████ · Old Man Narrates Young Girl · On the Ownership of Ideas · Across Three Continents: A Tale of Tumblr, Copyright, and Excellent Posters · Who Owns a Monkey's Selfie? And a Song About Meningitis!

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