The Online Censorship Machine Is Revving Up: Here Are a Few Lessons LearnedApril 18, 2019
About a week ago, I did my usual check-in with Rick Beato’s channel on YouTube to see what new videos he had in store for me. I’m a former working musician, and one who supplemented my income by teaching music, so I was easily sold on Beato’s combination of fun music-related videos like “Top 20 Greatest Rock Guitar Sounds” and in-the-weeds educational videos on music theory. His channel is one of many on YouTube that offer music education, cultural preservation, and creative ways to bring great music to wider audiences. So, needless to say, I was less-than-thrilled to see that he had just live streamed a rant against a huge uptick of efforts to block his videos and those by other creators who also rely on using musical elements to create new content. These copyright strikes had been targeting many of these creators’ most successful videos, which often had been around for years and had attracted big audiences — some with over a million views. One of the impacted videos was Beato’s 20-minute piece on the history of rock guitar, which was taken down for using just 10 seconds of a live, improvised guitar solo by Ozzy Osbourne’s former guitar player, Randy Rhoads. One of Paul Davids’s videos was blocked for playing one chord (Dsus2 for those music geeks following along) in a guitar lesson video. Even in the squishy world of fair use, these seem as close to slam dunk examples of fair use as you can get.
Then, earlier this week in response to a complaint from the Starz network, Twitter issued a copyright strike against a tweet from TorrentFreak reporting on major leaks of unreleased TV shows. Not only was the article merely reporting about copyright infringement, but the takedown request contained a false claim that the article linked to illegal content. Later, numerous other tweets related to the article were blocked, including one from the Electronic Frontier Foundation complaining about the abusive Digital Millennium Copyright Act takedown request against TorrentFreak. Fortunately, Starz issued an apology, and the tweets were put back up – EFF’s involvement by filing a counterclaim no doubt helped here – but many of the YouTube creators’ videos remain down.
Online creators are valuable. The millions of American creators who earn income by producing and distributing content online are entrepreneurs who pumped nearly $7 billion into the economy in 2017, while generating a fantastic diversity of cultural and educational works to society. Thanks in part to them, free expression continues to flourish online. But this creativity has recently come under attack from targeted efforts to take down successful online content, often by unknown third-party actors. This troubling behavior teaches us a few key lessons about problems that plague the creator community and their works. First, too many creators don’t fully understand their rights, leaving them more susceptible to abusive takedowns under the DMCA — the part of copyright law that deals with copyright infringing activity online. Second, when it comes to takedowns of online content that draws upon other artistic works, there is often a disconnect between the artists who made these underlying works and the companies and organizations that ostensibly represent them. Third, recent legal developments in Europe threaten to make the situation even worse for creators across the world, including here in the U.S.
Lesson One: Many Creators Don’t Know Their Rights, and to the Extent That They Do, They Feel Powerless to Defend Them
Censorship is the inevitable byproduct of numerous problems with how copyright law is applied in practice to online content. The first of these problems is that creators usually don’t know their rights and are therefore more vulnerable to abusive behavior under the DMCA. While educational resources exist online and elsewhere, we’ve found that many of them are only addressed at narrow populations, and many are not kept up-to-date with new developments in law and policy. Even when creators understand the DMCA’s mechanics, they often feel bullied when large corporate actors issue the strikes and fear that any efforts to challenge things will lead to expensive and unwinnable litigation. Instead, creators deserve to know the best ways for them to challenge unreasonable takedowns. In addition, creators, including artists, should know the inner workings of complicated copyright law, so that they can best unleash their creations on the world, and hopefully earn a living along the way. Public Knowledge is working on ways to address this issue and hopes to have news to share in the near future.
Lesson Two: Some Artists Appear to Be Unaware of This Takedown Activity and Don’t Object to the Creative Content
Compounding the problem here is that these takedown requests almost never come from the artists themselves, and often don’t even come directly from large intermediaries such as record labels. Instead, enormous volumes of takedown notices come from third-party enforcement services, that churn them out with reckless abandon. To be clear, the artists shouldn’t be forced to do the grunt work themselves, but it appears that some artists are unaware of what’s being done on their behalf and don’t object to the content being taken down. In fact, when artists like Fleetwood Mac, Queens of the Stone Age, and Led Zeppelin learned that Beato’s videos were being taken down, they immediately gave him permission to put them back up. We think that if more artists (particularly older artists) understood some of the benefits that online music education and homage videos can have for them as well as the public, they might be more willing either to work with creators directly or to get whoever is taking down the videos to stop abusing the system. For example, the band Tool recognized this upside and posted Beato’s “What Makes This Song Great” video celebrating one of their songs on their website. When I talk to creators, they want to make sure that other artists get fairly compensated; they just don’t want their videos blocked for the wrong reasons. Artists and creators deserve to be fairly compensated for their works, and this can happen without stifling free expression.
Lesson Three: We Can Expect to See More of This Behavior, Especially After the Passage of the EU Copyright Directive
A third major issue lurking behind these recent video takedowns is the threat to online free expression coming from the European Union. Earlier this week, EU countries approved the controversial EU Copyright Directive after the European Parliament voted on it last month. My colleague Gus Rossi has already written on the subject, so I won’t belabor the point. But if a similar policy is imported to the U.S., it could multiply the censorship that creators have been dealing with on a massive scale, as online platforms of all sorts and sizes are forced to apply blunt and unforgiving filters before their users upload anything at all. Even many clear cases of fair use, like the ones that have been discussed here, would likely never see the light of day. So, consider the recent uptick by the online censorship machine to be a literally unwatchable preview of coming attractions. Want to help make sure that this doesn’t happen? Tell your members of Congress that you care about online creativity and that you expect them to fight back against proposals that mimic SOPA or the Copyright Directive.
About Dylan Gilbert
Dylan Gilbert is Policy Counsel at Public Knowledge where he advocates for the public interest with a focus on government affairs. His core work includes privacy, copyright reform, and a variety of telecommunications and platform-related issues. Prior to joining the Public Knowledge team, Dylan clerked at the National Telecommunications & Information Administration, the Federal Communications Commission, and America’s Public Television Stations. Dylan also has over a decade of experience working in the music industry as a performer, producer, and music supervisor. Dylan holds a J.D. from The George Washington University Law School and a B.A. from The College of William and Mary. In his free time, Dylan enjoys playing jazz piano and hitting errant golf shots at the driving range.