Week 10: Copyright on YouTube

I talked a little bit about copyright in last week’s post about my screening of the documentary Paywall, so this week I’d like to go a little more in-depth. There are a few things to keep in mind around copyright on YouTube; a lot of this is because institutions who put video onto YouTube become information producers rather than simply providers. With this shift in roles comes a certain amount of legal responsibility that might not have been there before, which can be intimidating to institutions who might not feel like they have the expertise (or, more likely, time) to worry about it. This isn’t actually as big of a hurdle as one might worry about though; the average librarian has a much better understanding of copyright than the average YouTuber, and YouTube itself provides resources & documentation on the big things that folks are likely to have to worry about in a way that’s easy to understand. The company also has a number of systems in place to help protect themselves, a handy (but sometimes overkill) byproduct of interactions with Viacom in the late 2000’s. So, what will libraries have to worry about, and how might they overcome these hurdles?

Accidental media reproduction (e.g. music)

This is as good a place as any to start: music  and other broadcast media are so ever-present in our lives to the point that we don’t necessarily realize it’s there. We hear music almost everywhere we go thanks to radios playing in cars, malls, and special events, and so it’s not uncommon for someone to shoot a video on the go and accidentally capture music in the background. Once they upload that video, however, they’re reproducing & redistributing that music, likely in violation of copyright laws. Fortunately, this battle has already been fought. In 2007, Viacom sued YouTube on the order of USD$1 billion for hosting uploaded videos that contained their company’s intellectual property. It was all very sordid and convoluted, what with YouTube arguing that a lot of the content was in fact uploaded by marketing companies hired by Viacom in the first place, but eventually the two entities worked things out and YouTube created something called ContentID. ContentID is basically a tool that would automatically compare anything uploaded to YouTube to a database of materials known to be under copyright, and then any ad revenue that was made from the video would be sent to the licensor if that’s what they opted for. For libraries, this might mean that of they upload content but turn off ads, then the ads will be switched on and revenue will be sent to the creator so as to keep with the terms that the original licensor have decided on.

Intentional media reproduction

Sometimes creators will upload something that’s under copyright, with the intent of critiquing, reviewing, or remixing it. This has led to entire genres springing up (see “reaction” videos), and is by and large protected under fair use/fair dealings (depending on your jurisdiction). From the US Copyright office:
 Section 107 of the Copyright Act provides the statutory framework for determining whether something is a fair use and identifies certain types of uses—such as criticism, comment, news reporting, teaching, scholarship, and research—as examples of activities that may qualify as fair use.
The four considerations for whether or not something is “fair use” are:
  • The purpose of the use (is it being used to educate, or for commercial reasons?)
  • The nature of the work being used (is the copyrighted work a creative endeavor or more fact-based?)
  • The amount of the original work being used (is it a small part, or a major part?)
  • The financial impact on the original work caused by the new use (does it substantial hurt the original work’s earning potential?)
Aside from these guidelines, there are no hard and fast rules for Fair Use, and so disputes about whether something is protected as Fair Use or is in fact copyright infringement are decided on a case-by-case basis by the courts. Of course, as with many things in the justice system, this tends to favor the entities who can afford the lawyers and the time spent in litigation — but realistically, there is so little to be gained by disputing whether something is fair use or not that one doesn’t usually have to worry about that. Within the context of libraries, I would expect that most instances of fair use would be pretty easily argued as “for educational purposes,” so as long as you and your institution are making a good faith effort to follow the above guidelines there’s not a lot to worry about. While it costs money to bring something to suit, the loser will likely have to foot the bill, including if it’s the claimant.

Dealing with others violating your copyright

Good news is that this is pretty easy to do — folks like Sony and RIAA making sure that they have a method of redress means that most creators also have access to this, too. If you find yourself in a situation where material that you or your institution have copyright over, you can report the violation from the page itself (assuming the infringement happens on YouTube):
1) Clicking the “more” button shows the option to report for a number of reasons
2) When “report” is clicked, you can select “infringes on my rights” and use the dropdown to select “infringes on my copyright.”
If it’s found that this was indeed a copyright violation, the user will be issued a strike, and as accounts receive more strikes, they receive ever-more-serious restrictions up until 3 strikes, at which point their account is terminated. If you find your content on another platform (e.g. Facebook), the process is different. Facebook lets people report content for things like hate speech, self-harm, child abuse, etc… from the post itself, but not copyright infringement. If you need to report that, you have to use this form. Twitter meanwhile offers this form, along with a friendly reminder that when you issue a takedown notice you’re effectively publishing your contact information.

Aside: materials being pulled from one platform to another without attribution has come to be known as freebooting, a phenomenon that’s been in the collective consciousness for almost 4 years now. Destin Sandlin from the channel SmarterEveryDay talked about it at length back then, which makes sense because he does really cool stuff that people tend to want to take.

In short, this is problematic for a few reasons:
  • Freebooted materials typically aren’t attributed, which is obviously unfair
  • Freebooted materials mean that the original creator loses the opportunity to get views, and therefore make money from things like ad revenue and sponsorships
  • Conversely, freebooters do get access to these opportunities — an in fact they will freeboot things even though they can’t collect revenue from it, as a way to build audiences and gain influence (see: all the rando radio station Facebook Pages).
  • It is a blatant violation of copyright, and the way it typically plays out isn’t protected under Fair Use
Now, to be totally honest, freebooting isn’t likely to have as big or painful of an impact on libraries since (I assume) most library-generated content isn’t likely to have ads or sponsorships tied to it. But if your institution’s aim with its YouTube channel is to become big, this can be a problem because it divests the content (that is presumably high quality since it’s being taken in the first place) from the platform itself, and that loss of attribution means people won’t know that your institution is doing rad things. Another thing that might affect whether or not one can make a copyright claim against someone else is what the copyright terms of their materials actually are. For example, if your institution publishes under a Creative Commons license, you may have given up your right to claim. You can learn a little bit more about CC and YouTube here. If this is a thing you’re worried about, consider which Creative Commons license you want to use. You can learn more about CC & find the right license for your needs at Creative Commons’ website. YouTube allows users to list video under either the standard YouTube licence or the CC-Attribution license natively, but there are some difficulties in that insofar as YouTube doesn’t provide a way natively to download video content unless you’re the original uploader. Finally, a piece of advice if you’re going to claim infringement: take screenshots. I recently had the privilege of sitting down with Evan Andersen, the lawyer who operates Pixel IP and has a specialty in advocating for photographers and digital creators. He brought up the excellent point that if you find something online that demonstrates without a shadow of a doubt that someone’s violated your copyright, and contact them to say “hey you’re violating my copyright,” the digital nature of the internet makes it easy for them to go back and “un-violate” (and by this I mean make it look like they hadn’t violated copyright). If you’ve been materially harmed by someone’s action and you have screenshots to show that they really did it, this can make a big difference in getting compliance.  

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