YouTube: Monetizing Alleged Copyright Violators—And Skirting the Law

My friend Franklin Lopez—videomaker extraordinaire—recently received a bizarre notice in his inbox regarding a show he produced reusing some Universal Music Group (UMG) imagery. The note stated in part, “Your video is still live because UMG has authorized the use of this content on YouTube. As long as UMG has a claim on your video, they will receive public statistics about your video, such as number of views. Viewers may also see advertising on your video’s page.”

Now forget that Lopez’s show, It’s The End of the World As We Know It And I Feel Fine, is a news program. (In my opinion a very good one, although unlikely to attract a mainstream audience due to its radical politics and volume of swears.) Here, he’s even commenting—favorably, nonetheless, on a popular song. These facts, in a normal copyright infringement allegation, would make Lopez’s show a good candidate for the Fair Use defense.

Forget it, though, because this case won’t ever go to the courts. Lopez—unwittingly, perhaps, maybe even regretfully—agreed to such terms when he posted videos to the site. And now UMG, the company he refers to as one of the “corporate bloodsuckers that dominate the culture industry” in the episode in question is targeting and, potentially, profiting from his audience. And skirting the law.

(Incidentally, they’re targeting mine too: the song leads into an interview about Unmarketable. See the whole thing here.)

But anticorporate radicals aren’t the only ones being subjected to this profitable new plan for subverting the Copyright Act of 1976—even with those fancy pro-corporate provisions that favor businesses at the expense of creativity. Blogger John posted a jazz video, apparently never having realized he may (or may not) be committing a crime.

“Ooh,” he wrote when he got his note. “I just came close to being sued for posting copyrighted songs on YouTube! That’s crazy!”

In full, Lopez’s note—and maybe one headed toward your inbox soon, too—reads like this:

Dear YouTube Member:

UMG has claimed some or all visual content in your video It’s the End of the World as We know it #31. This claim was made as part of the YouTube Content Identification program.

Your video is still live because UMG has authorized the use of this content on YouTube. As long as UMG has a claim on your video, they will receive public statistics about your video, such as number of views. Viewers may also see advertising on your video’s page.

Claim Details:
Copyright owner: UMG
Content claimed: Some or all of the visual content
Policy: Allow this content to remain on YouTube.
* Place advertisements on this video’s watch page.

Applies to these locations:
Everywhere

UMG claimed this content as a part of the YouTube Content Identification program. YouTube allows partners to review YouTube videos for content to which they own the rights. Partners may use our automated video / audio matching system to identify their content, or they may manually review videos.

If you believe that this claim was made in error, or that you are otherwise authorized to use the content at issue, you can dispute this claim with UMG and view other options in the Video ID Matches section of your YouTube account. Please note that YouTube does not mediate copyright disputes between YouTube owners. Learn more about video identification disputes.

Sincerely,
The YouTube Content Identification Team

Which raises the question: What sort of “program,” exactly, is YouTube’s Content Identification program? The answer appears on YouTube’s Help Center page, and includes the following description:

The Video Identification tool is the latest way YouTube offers copyright holders to easily identify and manage their content on YouTube. The tool creates ID files which are then run against user uploads and, if a match occurs, the copyright holders policy preferences are then applied to that video. Rights owners can choose to block, track or monetize their content. [An ID file is a] digital content identification file which corresponds to a reference file (a piece of content like a movie, music or other audiovisual material). This file is generated using Google software and is also known as a “fingerprint.” . . . If Video ID identifies a match between a user upload and material in the reference library, it applies the usage policy designated by the content owner. The usage policy tells the system what to do with the video. Matches can be to only the audio portion of an upload, the video portion only, or both. . . . There are three usage policies — Block, Track or Monetize. If a rights owner specifies a Block policy, the video will not be viewable on YouTube. If the rights owner specifies a Track policy, the video will continue to be made available on YouTube and the rights owner will receive information about the video, such as how many views it receives. For a Monetize policy, the video will continue to be available on YouTube and ads will appear in conjunction with the video.

And don’t overlook the disclaimer:

WE ARE NOT YOUR ATTORNEYS, AND THE INFORMATION WE PRESENT HERE IS NOT LEGAL ADVICE. WE PRESENT THIS INFORMATION FOR INFORMATIONAL PURPOSES ONLY.

So what are your options as a law-abiding devotee of the Fair Use defense, when you find your work is now both promoting and criticizing copyright owners? Well,if you’d been accused of copyright infringement, and your work was removed under the Digital Millenium Copyright Act, you could file a counter-notice. But since we’re working here outside the law, you can file a dispute with YouTube, who will forward it along to the company claiming copyright ownership. They’ll sort it out for you—privately.

But this is all a little different than the plan alluded to by Google CEO Eric Schmidt in the spring to monetize YouTube’s success. When revealed last month, the plan promised to award the videos of certain “content partners”—record labels, movie studios, and TV networks who presumably pay for the service—an “about-to-go-viral” honorific, and attach ads to them. It’s called “buzz targeting,” and according to Silicon Alley Insider the user-generated content for which YouTube is so celebrated is not eligible.

“One of the greatest aspects of YouTube is how it has democratized the way in which videos are discovered and promoted,” Shiva Rajaraman, YouTube Product Manager, states in the press release. “On any given day, a video from a top-tier content creator or an ordinary YouTube user can become the next big thing.”

Of course, YouTube now has a vested interest in turning certain videos from certain “top-tier content creators” into the next big thing, which isn’t any longer a “democratizing” project. And the company has still found a way to monetize its more democratic aspects, for the benefit of those in the top tier.

And the only one losing out here is that “ordinary YouTube user.”