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This week the World Intellectual Property Organization celebrates World Intellectual Property Day, an event that centers on the role IP can play in cultivating innovation and creativity. With this theme in mind, Courtney Duffy delves into what it means to protect copyright owners without discouraging new works, a balance which has been a struggle for YouTube.
Presidential candidate Rand Paul is the latest political figure to be accused of copyright infringement for YouTube content. His campaign announcement video was removed from YouTube last month following a claimed instance of infringement by Warner Music Group. The work in question? John Rich’s “Shuttin Down Detroit,” which played in the background at the Louisville, Kentucky event where Senator Paul’s speech took place. The kicker? The song was included under fair use and the video’s presence on the site is totally legal - but more details on that later.
Paul is not the first political figure of either party to face allegations of copyright infringement - think John McCain in 2008 and the DNC in 2012 - and he will not likely be the last. This episode is yet another example of political campaigns getting a raw deal when automation is used to facilitate takedown notices for their video content. (In 2010 the Center for Democracy & Technology released a report on the various ways in which aggressive copyright claims thwart political speech online that is worth a read.) These claims threaten the online platforms for political speech that are critical to candidates running at all levels in 21st century elections.
There’s no denying that some YouTube videos do contain instances of copyright infringement - 300 hours of video content are uploaded with each minute that passes, for goodness sake. But here’s the thing: under the Digital Millennium Copyright Act (DMCA), YouTube is not legally obligated to have a mechanism for policing its content for infringement. The site is charged with taking content down when it receives notices to do so, but that’s the extent of it.
Nevertheless, YouTube opted to create and rely on technology called Content ID which automatically scans all video content for traces of copyrighted works. Being a bot, however, Content ID is unable to discern instances of fair use from legitimate copyright infringement. When it detects copyrighted work in a video, whether fair or infringing, the copyright owner is alerted and given the ability to decide the video’s fate. Bogus copyright claims, though illegal, are already being made every day - this issue is only made worse when Content ID’s automation leads to fair use cases being taken down. Besides, what incentivizes copyright owners to allow these videos to remain live, even in cases of fair use?
Speaking of fair use, let’s return to the case of Rand Paul. “Shuttin Down Detroit” was played in the background of his campaign event as he entered and exited the stage, as reported in Business Insider and the Washington Post. The song is present in the video under fair use - on the one hand, because it is newsworthy that its lyrics align with his political outlook and on the other hand because the event itself, rather than the song, is the focus of the video. Suppose you record your child taking her first steps at a family barbeque while Bruno Mars plays on a radio outside the frame, for example. Because the copyrighted work is simply a peripheral element in the video, rather than its focus, you as the recorder and owner of the video would have a strong case for fair use.
By creating Content ID in the first place, YouTube took a stand to prioritize the autonomy of copyright owners above all else - and by making Content ID automated, the site inhibited content creators and, in this case, political speech. For the record, YouTube’s copyright page does include a link to a page on fair use, but it much more heavily focuses on the many ways in which one can commit infringement. Copyright’s purpose is not to give authors total control over their works, but rather to ensure that consumers and innovators have sources of inspiration to learn from and build upon (which you can read more about in this Public Knowledge pamphlet). These efforts to empower holders of copyright have gone too far, creating a system that grants them too much power.
Though Paul’s announcement video has since been reinstated on YouTube, the incident cut into the media coverage of the presidential announcement itself. The damage had been done, and it could have been prevented. Automated robots like Content ID are simply too dumb to distinguish between fair use and infringement.
If YouTube really cares about maintaining a balanced copyright system, we hope it will create a system that can assess whether infringement has actually taken place before enabling owners to order content to be removed. Until then, we will continue to see fair use videos taken down arbitrarily, as well as damaging political repercussions for law abiding political candidates on both sides of the aisle.