Content ID & DMCA Takedowns: What Creators Need to Know

/ Jan 3, 2014

ContentID

By Philip Daniels, Esq. and Tyler Malin, Esq.

The past few weeks have been most distressing for some YouTube creators as YouTube initiated a widespread rollout of its Content ID scanning system. For the uninitiated, the Content ID system scans incoming video for “infringing” content. As more music and visual clips are indexed and claimed by copyright holders, and more incoming clips are scanned, a sizeable number of YouTube creators have started to receive notices claiming that their videos have been flagged as in violation of various copyrights.

The reality is that copyright is complicated. And it’s even further complicated by an extrajudicial system that allows the submission of materials without proof of copyright and algorithmically compares all indexed files to a massive volume of incoming content.

Receiving a claim means that either: A) All or some of your content has been blocked (either globally or in a specific region) and you risk losing your account privileges; B) Advertising revenue is diverted from the uploader directly to the claimant; or C) The analytics associated with your videos are now being monitored by the claimant. These effects have real teeth. And there are flaws in the Content ID system that have resulted in improper claims, which is troubling to some of the creators who rely on advertising revenue as a source of income.

For example, Content ID seems to be indiscriminate in its scan, and flags content as “infringing” even when use is lawful based on public domain or fair use principles (more of that later).  Although it is admirable that YouTube is conscious of respecting the rights of copyright holders, and is attempting to provide an appropriate remedy, there are flaws in the system and the procedures that are causing undue confusion and distress among the creator community.

This article looks to provide an overview of Content ID, the procedures, and what content creators can do if they receive a Content ID claim or DMCA takedown notice, or better still, protect themselves in advance of receiving a claim.

If you have real concerns, you should seek the advice of an attorney.

1. What Is Content ID?

The video below explains the product, which basically compares every video uploaded to YouTube (potentially up to 24 hours of video per minute) against a copyright database of reference files submitted by rights holders.

If audio or video signatures are matched to the existing database, YouTube enforces the copyright of the filer by doing what that company or individual requested YouTube to do in the event of infringing use. The copyright owner of a video may select to take down the video, leave the video up and monetize the video for themselves, or leave the video up and track its analytics. Each of these choices can be modified by distribution platform (allowing, for instance web use but not mobile), or geographically. Music rights-holders can strip the matched audio from the video directly.

Quite simply, Content ID allows copyright owners to detect when their content is being used without permission and how to deal with potential infringement based on their own business decision.

2. What This Means for YouTubers

If you want to use music, gaming, TV, or film content in your monetized video, you must have the permission of the respective owners before you upload the video, or have a claim that it falls under fair use principles (more about fair use later) and be prepared to defend it.

Videos can be flagged for infringement either through Content ID, or by an individual Copyright Infringement Notification to YouTube through a free-form notification or web-form.

Regardless of the source of the flag, the result is the same: Your video will be treated in accordance with the rights-holder’s wishes and either monetized (with all revenue driven to the claimant), tracked (video is unaffected except that viewership statistics appear in owner’s analytics account), or blocked (either the video is no longer viewable or audio is muted).

Obviously any of these situations should be avoided. However, if your video is blocked worldwide, you receive a “strike” on your account. Per YouTube, if a YouTuber receives three or more “strikes,” he or she will lose access to the platform’s partner features, which notably include:

Monetization

Allows you to earn money from your videos.

External Annotations

Lets you link annotations to external sites or merchandising partners.

Paid Subscriptions

Allows you to earn revenue by charging a subscription fee to users who want to watch your videos.

Content ID Appeals

Lets you appeal rejected Content ID disputes.

Live Events

Lets you create a live streaming event.

Series Playlists

Lets you create a playlist of your videos.

Channel Customization

Lets you customize your channel with things like branded banners and channel trailers.

In short, if you plan on making any money with YouTube at any point in your life, getting three ContentID strikes basically makes that impossible.

3. How to Dispute a Content ID Match

The Counter-Notification

There are an increasing number of tales of improper Content ID matching on the web. If you did not infringe the copyright as alleged, or if you have a valid argument that your use qualifies as fair use, YouTube provides a dispute mechanism that allows you to make these claims.

The dispute tool is available through the copyright notifications section of your YouTube account.  You are initially provided with a list of all videos in your account that have any copyright issues.  For each video, the nature of the infringement is provided, along with the Content ID policy of the listed copyright owner. You can review each and determine whether you wish to acknowledge the infringing use and accept the Content ID policy change or dispute the claim. Remember that your video may be flagged for video or audio infringement. So while your video may be an original work, you might have included audio that belongs to another party (say a popular track from your favorite band) as a backing track.

If, after review, you determine that you did not violate the copyright, you may dispute the claim by selecting “dispute.”

The ONLY appropriate reasons for disputing a claim are:

  1. The video is your original content and you own all the rights to it. (The Content ID match was wrong.)
  2. The content is in the public domain and is not eligible for copyright protection.
  3. The content has been licensed or written permission from the proper rights-holder to use the material has been provided.
  4. The content meets legal requirements for fair use or fair dealing under applicable copyright laws.

After selecting the appropriate reason for the dispute, you will be prompted to review your dispute and given a very serious sounding instruction that if you continue, you are agreeing that “I am sure xyz is true and I want to dispute this claim.”

In the case of a fair use defense, YouTube even suggests that you first consult with an attorney to review what fair use is. Fair use is potentially the most confusing legal subject we deal with as attorneys. There are no clear-cut tests to determine fair use and the idea that unskilled content creators or even large media companies have clear concepts of these issues is folly. Rather than discuss fair use in detail here, we suggest start by reading this amazing piece.

Or watch fair use experts from Stanford’s Center for Internet and Society answer some common fair use questions below:

Setting aside the ability to make good decisions on legal defenses, once you select “continue and finalize submission,” the general policy is that YouTube will forward the counter-notification to the party who submitted the original claim of copyright infringement.

The counter-notification process takes 10 business days from the day you file it. YouTube takes no position on any legal issue; the decision to accept or reject a counter-notification is purely based on the decision of the party that Content ID matched with yours.

If this party realizes they made a mistake, or accepts your argument on fair use, they can retract the claim and your video will be restored good as new.

The Appeal

If your counter notification is rejected you have an additional appeal.

If an uploader appeals a rejected dispute, the claimant will be required to either: Release the claim on the video, or send a legal copyright notification.

If a legal copyright notification is sent: “The video will be taken down and the uploader will receive a copyright strike pending a decision on the DMCA takedown notification.”

4. Issues and Complaints with the Current System

Many argue that the current system seems to skew in favor of copyright owners. In fact, everything prior to the DMCA takedown notice required after an appeal is just internal policy and completely extrajudicial — undoubtedly leaving the vast majority of these potentially important legal arguments without proper consideration, which is damaging for everyone involved.

Furthermore, the argument extends to note that the current system seems to skew in favor of large companies who are copyright holders. Although a non studio/network/brand copyright holder may individually search for, find, and complain about infringing works through the Google dispute notification webform, by its own words, Google suggests if you don’t own a large catalog, you shouldn’t apply:

“Only certain content owners will qualify for access to Content ID. If you don’t own exclusive rights to a substantial body of content that is frequently uploaded by the YouTube user community, Content ID is probably not right for you. However, if you believe your content meets this criteria, you may apply.”

Interestingly, the “criteria” listed above mention nothing about the volume of rights you manage or own. So, by design, the system seems to protect the big companies as opposed to the millions of content creators that made YouTube so popular. This stings even more when you consider a match immediately triggers the policy of the claimant without anything more than a notification sent to the YouTuber. Thus, you are guilty unless proven innocent if caught in the net of Content ID.

Furthermore, even if you dispute, provide notification or a good faith fair use argument, or even a chain of title, if the claimant simply denies your counter notification, the video is taken down or re-monetized without even a requirement for proper notification of infringement under the DMCA.  Finally, if the owner of the flagged content has summoned the energy, time, and courage to appeal a simple DMCA takedown notice, YouTube will block use of the content pending the results of the action.

The process is scary for content owners who aren’t lawyers and don’t make enough from YouTube to justify calling one. The process is also potentially confusing to uploaders and copyright holders. The result is an administrative mess and a whole lot of upset individuals.  Unfortunately this sort of pull between established rights-holders and new-media upstarts will likely only intensify as the web becomes the number one source of monetized video.

If you want to play in this game, and have the opportunity to make money — potentially lots of money — with video content on the web, you need to start treating the process of creating this video with as much care and attention to these risks as the large copyright holders do. This doesn’t mean hiring production legal for every small production, but it does mean taking some simple steps to start preparing for a potential dispute so that you have a greater chance of prevailing.

Conclusion

Despite the confusion around the system and its flaws, there are some things that you can do to protect yourself in advance of receipt of a claim:

  • When using third party material in your content (music or video content that is owned by others), look to obtain licenses from those copyright holders. Keep a paper trail of any licenses, consents, and/or authorizations you have obtained from third party owners of that content. You may need to show all of that as evidence in the event of receiving a claim.

  • Where licenses are not granted, consider whether your use could be a fair use, and therefore not a copyright infringement. Now that’s pretty tough for a non-lawyer to do. In fact, even for a lawyer… To set the record straight there is no set rule that using something for less than three seconds constitutes a fair use. It’s a common misconception; using even a second of music can be deemed a copyright infringement. You should therefore always consult a lawyer specialized in these areas for confirmation as to whether something is a fair use. It’s a highly specialized area of the law.

  • If in doubt, always seek the advice of a lawyer specialized in these areas. There are plenty of lawyers out there who are willing to help, in a cost-effective manner.

PhilipDanielsPhilip Daniels is partner and co-founder of entertainment law firm, Ginsburg Daniels LLP in Beverly Hills and represents production companies and talent in the digital media and TV industries. Contact: [email protected]

&

tylermalinTyler Malin is is co-founder of GRAVIDI and serves as its chief marketing and revenue officer. He has 10+ years in the entertainment, intellectual property, technology, and content production spaces as an attorney, Fortune 500 executive, startup CEO, and content producer/director. Contact: [email protected]

Note that the content of this article does not constitute the rendering of legal advice or counsel to the reader, and should not be relied on as such by the reader. The reader should consult an attorney for advice and/or more information relating to any of the above.

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  • BroadcastAssassin

    In general, our biggest problem with content flags on YouTube have actually been for content we created and own. It creates a problem because YouTube’s system gives us the next step of “proving” we own the rights or else the video isn’t monetized.

    In general, what’s an acceptable way that to legally prove that you wrote/filmed/created/own a piece of content within the scope of YT’s system? It’s not like we signed a licensing agreement with ourselves we can just show them.

    • SimonDigital

      As a small independent content creator I have run into the YT content ID wall many times, with material I have secured rights to. Using the avenue that YT has provided is an uphill battle, or at least it feels that way. Another frustrating situation has been after sucessfully re-establishing copyright claim and re-monetizing content, YT reflags the content and disables it again. Hopefully they have fixed this annoying loop.

  • Great article – it really is a broken system, but still a relatively new one and I’m sure/hopeful that it will get better soon. As someone who makes song parodies, which should fall under Fair Use, I’ve had a lot of problems with my most recent ones where multiple copyright claims appear immediately and when I file my counter-claim inevitably all but one drop it… and that one ends up winning in YouTube’s eyes, so they get all of the monetization when I had the music remade by a composer, wrote the lyrics myself, and shot all of the video content too.

  • TeenInfoNrt

    There is only one provision in law for one copyright takedown notice and one counter notice. Not this crap of a pre-counter notice that Youtube is using now. There are also no provisions in the law that gives the rights to the complaining party to reject any counter notice period. Once a counter notice is received the law requires that the courts get involved at that point to make that determination if there is a violation. This is where Youtube is violating DMCA and possibly their Safe Harbor provisions.

    I hope someone sues them eventually and dismantles this system.

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