Computers, Privacy & the Constitution
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YouTube? and the Development of the CopyStrike? Industry

-- By JennyPark - 15 Mar 2020


YouTube? is one of the most popular platforms on which content creators broadcast themselves, and has undergone significant changes to address the copyright and ownership issues that broadcasting presents. In February 2019, YouTube? updated its copyright strike system, a three-strike system used to penalize alleged copyright infringements, for the first time in a decade, with the intention of bringing clarity and consistency to users. The update revised the three-strike system to specify its increasing penalties ranging from warnings and video removal to account termination, with the goal of making its guidelines uniform and transparent for users. It also included a warning strike, separate from the three-strike system and designed to provide a warning with no penalty except removal of the content at issue with the goal of allowing users to learn more about YouTube? 's Community Guidelines.


A YouTube? copyright strike, or copy strike, occurs when a video has been removed after a copyright owner submits a valid legal request claiming that the content uploader did not have their permission to post the copyrighted content on the site. However, many questions remain unresolved, such as what constitutes "strikable" content under this copyright regime? Generally, copyright law is designed to protect original works of authorship fixed in any tangible medium of expression, including online creations. Under the Constitution, the goal of copyright law is to “promote the Progress of Science and useful Arts”. Yet, what it means to be an original work in light of the goals of copyright law, can be difficult to determine, especially with fair use arguments and the expansion of content on the internet.

Many individuals argue that their use of copyrighted content is not “strikable” because it counts as fair use. Fair use is an affirmative defense to infringement claims whereby users may “reuse copyright-protected material under certain circumstances without receiving permission from the copyright owner.” In the United States, works of commentary, criticism, research, teaching, news reports, and certain other materials can be considered fair use. Courts will typically consider the purpose of the use, the nature of the copyrighted work, the amount and substantiality of the portion of the work used, and the potential market effect of the use when determining whether content falls within the fair use defense. Content creators who stream video game content online may argue that they are using an unsubstantial portion of the content, and creating their own work from it based on their commentary. Yet, what constitutes fair use is not always easy to determine. These policies can generate problems that are hard to enforce and make user-generated content creation such as YouTube? broadcasts difficult and unappealing.

The Issues

In addition to the difficulty of determining when the fair use defense applies, the sheer volume of content on the internet makes copyright protection incredibly difficult to enforce manually, necessitating the use of automated systems. YouTube? uses a system known as “Content ID,” which scans the videos that are uploaded onto the site against its database. Once uploaded videos are scanned by Content ID, copyright owners have the ability to decide what happens to the content in a video that matches their own work, allowing them to submit a claim. The application of automated copyright violation detection can rapidly demonetize channels, and the penalties of enforcement can have serious ramifications for those affected. Some content creators’ entire livelihood depends on creating videos. Considering the public profile of many of these creators, both the sponsorship organization and the individual can face repercussions due to content restrictions, such as a loss of popularity.

Beyond the difficulties with the use of automated copyright violation detection, YouTube? ’s copyright enforcement mechanism and policy presents other issues. For one, many content creators watch other YouTube? videos when they are broadcasting live. While content creators can issue complaints about the use of their content, other creators may claim that they are creating new and transformative content by commenting and adding to the video, which may fall under the fair use defense. Another issue pertains to scammers who abuse YouTube? ’s policies and take advantage of its enforcement difficulties by blackmailing or extorting channels without a legitimate claim.

Some of these “scammers” relate to companies who specifically work to files these types of claims for users. Businesses such as CollabDRM? claim to assist content owners with claiming the value of their content on platforms such as YouTube? . While these sites should be designed with the honest goal of assisting content creators on YouTube? , the unexpected result has led to an increase in power by these businesses, with users having little to no say when their content is removed. The issue with the “scam” is that these organizations can offer to end the dispute for monetary fees paid by the content creators. With some individuals completely dependent upon their YouTube? earnings, it becomes difficult for them to maintain their business while dealing with scammers who will file copy strikes until payment is received.

For many content creators, YouTube? ’s use of automated detection also appears arbitrary and open to mistakes, which can negatively impact viewership and channel popularity. Hopefully, companies recognize the concerns of their content creators and users and will begin to work towards responding to these needs.

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r2 - 15 Mar 2020 - 03:55:23 - JennyPark
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