Tips & TricksWhat is YouTube Content ID and Where’s The Fair Use (#WTFU) – Part 2

Akshay Chandra4 years ago

In the first part of this blog, we talked about the recent drama surrounding wrong copyright claims on YouTube, the process of getting Content ID and its inner workings. In this blog, we’ll be talking about DMCA, copyright strike laws and real examples of popular creators tackling the issue. Let’s get started:

What is DMCA?

Established way back in 1976; the Digital Millennium Copyright Act of 1998 (DMCA) was created to facilitate the development of electronic commerce in the digital age. DMCA was established to protect original works shared on the internet – such as videos, blogs, music and other forms of creative content.

The original idea behind DMCA was to stop online piracy and uphold fair use. However, these days, a lot of people are misusing it as a weapon to curb free expression and competition. Whenever someone gets a DMCA notice, he/she will get the following information:

  • The electronic or physical signature of the copyright owner.
  • Identification of the copyrighted work.
  • A description of and link to the infringing content.
  • The owner’s name and contact information.
  • A sworn statement that he/she is the owner, and did not provide permission for the content to be uploaded to the site.

3 Strikes law on YouTube

When a creator gets a content ID match on one of his/her videos, the YouTube account will go into bad standing and will lose access to certain features. This is called a ‘strike’. Three such strikes and the account will be terminated and all the videos uploaded from the account will be removed. The users with such terminated accounts cannot create new accounts as well!

So what does one do after getting a DMCA notice?

After a creator gets a DMCA notice, he/she will have 3 options:

  • Wait for it to expire: A copyright strike will expire in six months as long as you complete Copyright School and receive no additional copyright strikes during that time.
  • Get a retraction: You can contact the person who claimed your video and ask them to retract their claim of copyright infringement.
  • Submit a counter notification: If your video was mistakenly removed because it was misidentified as infringing, or qualifies as a potential fair use, you may wish to submit a counter notification.

Note: Ensure that your counter notification has all the required details. These counter notices must be answered within 14 business days by the ones who have sent you the DMCA notice. If they do not, the DMCA notice will expire.

Fair use controversy on YouTube so far

In the last few months, many popular YouTubers have been affected by wrong copyright claims. They’ve all been pretty vocal about it and the whole creator community rallied behind them in each such instance. We’re listing them all here so that you can tackle them better; if you ever face such issues:

WatchMojo’s

In 2013, WatchMojo’s YouTube channel got temporarily terminated for about 21 hours after receiving copyright violation notices from Twentieth Century Fox Film Corp, UEFA, and SOFA Entertainment. WatchMojo stands in 38th YouTube channel rank with more than 11 million subscribers.

Result  – After 21 hours of the outage, the channel was brought back to life. However, they lost about 3 million probable views and almost 10 thousand subscribers.

Did you know: Watchmojo gets over 7 million views per day! Click here for more interesting stats of the channel.

TotalBiscuit, the cynical Brit

When TotalBiscuit trashed  Wild Games Studios’ first-person shooter Day One: Garry’s Incident, the studio used the copyright claim on the video.

Here’s an interesting fact: TotalBiscuit added over 9 thousand subscribers in a single day on March 11! Click here for more interesting stats of the channel.

Adult Wednesday Addams

This YouTube channel was one of the go to places for uptight Addams Family spin off comedy. It had generated over 8 million views by the end of its second season. But, Melissa Hunter’s Adult Wednesday Addams got flagged by Tee & Charles Addams Foundation for copyright violation.   

Result – The web series Adult Wednesday Addams was removed from the YouTube channel. Her recent update was through the YouTube video dated last year. And now, she moved on to create another web series for NBC called WOLFGIRL.

Channel Awesome:

Film critic Doug Walker never would have imagined that his review of the classic movie My Neighbor Totoro could land him a copyright strike from Studio Ghibli. Channel Awesome lost its monetization rights, and then complained publicly in a video that got massive attention and even started a twitter hashtag trend called  #WTFU (Where’s the Fair Use?)

I think we have 11 claims pending in our account, and you can only really fight two at once

Result – Channel Awesome lost all its monetization, but gained immense support from the YouTube community.

Lenz vs universal :

This is probably one of the most famous cases that caught everyone’s attention. Eight years ago, Stephanie Lenz posted a video of her toddler dancing to Prince’s song “Let’s Go Crazy”. It was just like any other video of a dancing toddler that can be found on YouTube.

Universal Studios sent a takedown notice to Ms.Lenz to remove the 29 Sec video immediately.  As per the Take Down notice,  the video violated their copyrights in accordance with The Digital Millennium Copyright Act (DMCA).

Result –  Stephanie Lenz contested the case and the Court passed a ruling stating that the copyright owners must consider fair use in online takedowns. (Big win for Stephanie indeed!)

Kanye west case

My greatest pain in life is that I will never be able to see myself perform live – Kanye west ( That’s actually a quote from him) 

Well, Kanye is as Kanye does.

Last month, all the videos of Kanye west performing live have been removed from YouTube’s platform. In most of the cases, YouTube creators are reporting that their channels have been shut down as a result of carrying the clips.

Result – All of his own Vevo channel clips were also removed. YouTubers like Missinfo, Andrew Barber, Necole and many others lost their YouTube channel.

UN1TE Dance Company

Imagine if you are a popular dancing group and your videos and YouTube channel is getting a strike just because you used a popular song in your dancing regime without the consent of the label owning the song’s right. That’s what happened to UN1TE Dance Company.

Result –  Over 300 videos taken down. Then they created a temporary Youtube channel for UN1TE Dance Company just for their fans viewing pleasure.

How to avoid Content ID’s – DMCA takedowns?

Music –

Try to use your original music whenever possible. You can also try creative commons websites that provide license free music that anyone can use. Also, YouTube provides  a vast library of music files and themes that you can incorporate in your videos.

Trailer Reactions/Reviews –

When reviewing trailers, don’t show the entire trailer inside your video. Use less than 10 seconds of the video (under fair usage)

Publisher Permission –

Many gaming companies give permissions to YouTube gamers and end up suing them just because they gave a bad review. ( Check TotalBiscuit ) If you want to review the game before it is launched for the general public, do check out the terms and conditions and find out if you can get a pre roll out permission.

Lyp sync –

Singing to your favourite songs comes under fair usage. But, making a lyrics video out of that can get you, a Content ID flag. Remember, you are  not really adding anything new or changing the message of the original song.

What is ‘Fair Use’ then?

Fair use is the right to use copyrighted material without permission or payment to the content owners under certain circumstances. Fair use basically comprises of four factors:

Purpose and Character of Your Use

You need to add new meaning to the message you’re borrowing. If your intention is criticism, news reporting, or commentary; then Fair Usage is valid. A common misconception is that any for-profit use of someone else’s work is not fair use and that any not-for-profit use is fair. In actuality, some for-profit uses are fair and some not-for-profit uses are not; the result depends on the circumstances.

Nature of the Copyrighted Work

Here, the judges will check whether the material you have utilized is truthful or imaginative, and whether it is distributed or unpublished. Factual work like J.F.K’s assassination video, or Martin Luther’s speech is labelled, in the name of the public interest.

Amount and Substantiality of the Portion Used

Although there is no particular rule for the exact amount of copyrighted work that can be used that can be termed as fair use. Instead, your case will be judged on the nature of the work.  

The Effect of Your Use Upon the Potential Market for the Copyrighted Work

This is, perhaps, the most important factor. This will weigh on how much of your copyrighted work affected the market value of a particular brand or a book or a product. Suppose if you are an online author with paid subscriptions for your content, then someone can’t just use your work without your permission and show it as their original work.

Lastly

All said and done; I think the existing legal framework has its own challenges and a lot of limitations. But, YouTube is very vocal about the support and is willing to pledge about $1 million for the court charges if the counter-notice is valid and comes under fair usage! WatchMojo’s CEO Ashkan Karbasfrooshan suggested Google’s dual share structure to be implemented on YouTube as well, so that the quality of content can improve. What do you think about the whole situation? Should there be a change of the copyright law as a whole or should there be small tweaks which can make it better? Leave them in the comments below.

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Akshay Chandra

Being an artist, movie buff and a media enthusiast, content writing is my career train. I am a proud alumni of Symbiosis Institute of Media Communication (Pune) and currently working for Vidooly.

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