The challenge is met by YouTube by taking down content for which copyright holders file a legitimate infringement complaint under the DMCA. It also operates a voluntary system known as Content ID, which allows larger rightsholders to settle disputes by either blocking contentious content automatically at the point of upload or monetizing it to generate revenue.
Content ID Should Be Available to All Copyright Holders
A class action lawsuit filed Thursday in a California court by Grammy award-winning musician Maria Schneider tears apart YouTube’s efforts. It claims that the video-sharing platform fails on a grand scale to protect “ordinary creators” who are “denied any meaningful opportunity to prevent YouTube’s public display of works that infringe their copyrights — no matter how many times their works have previously been pirated on the platform.”
The 44-page complaint leaves no stone unturned, slamming YouTube as a platform designed from the ground up to draw in users with the lure of a “vast library” of pirated content and incentivizing the posting of even more material. YouTube then reaps the rewards via advertising revenue and exploitation of personal data at the expense of copyright holders who never gave permission for their work to be uploaded.
The lawsuit further criticizes YouTube for not only preventing smaller artists from accessing its Content ID system but denouncing the fingerprinting system itself, describing it as a mechanism used by YouTube to prevent known infringing users from being terminated from the site under the repeat infringer requirements of the DMCA.
Content ID Allows YouTube to Avoid Terminating Repeat Infringers
“Content ID is not only unavailable to Plaintiffs and the Class, but it actually insulates
the vast majority of known and repeated copyright infringers from YouTube’s repeat infringer policy, thereby encouraging its users’ continuing upload of infringing content”, the complaint reads.
Highlighting Google’s claims that 98% of YouTube copyright issues are resolved with Content ID, the action turns this statement on its head, stating that what the company really means is that all but a fraction of copyright-infringing material is “entirely insulated” from its repeat infringer policy.
“This two-tiered system essentially trains YouTube’s billions of uploading users that there is essentially minimal risk to uploading to their hearts’ content,” it reads.
“And while YouTube’s Content ID partners are protected from these repeat infringers because their uploads will always be screened against the Content ID catalog before publication, Plaintiffs and the Class remain at risk of recurring infringement by these same repeat infringers.”
The complaint says this undermines YouTube’s repeat infringer policy, which mandates that users will be terminated when they accrue three active strikes in a 90 day period. Its claim to safe harbor protection is also nullified, the complaint adds, due to YouTube placing a limit on the number of takedown notices it will process and restricting access to “certain automated tools” designed to locate infringing content on the platform.
No Takedown / Staydown Mechanism
Turning to how YouTube has affected Schneider herself, the action lists a number of songs that have been posted to YouTube without her permission. She claims to have applied to be included in the Content ID system twice but was rejected, so must now “self-police” for infringement instead of enjoying the “automatic and preemptive blocking” afforded to larger rightsholders via Content ID.
Schneider is joined in the action by a British Virgin Islands company called Pirate Monitor Ltd, which reportedly obtained the rights back in January to several non-U.S. movies first published in Hungary. One of those works, titled Immigrants – Jóska menni Amerika, was registered with the US Copyright Office earlier this year.
All of the Pirate Monitor works have been previously uploaded to YouTube in violation of copyright and the company was also denied access to Content ID. Takedown notices were processed by YouTube but the company says that removal took several days, with titles being subsequently reposted by infringers.
“Put simply, copyright holders should not be forced to repeatedly demand that the same platform take down infringing uses of the same copyrighted work, while other rights holders are provided access to standard digital fingerprinting and blocking tools,” the complaint adds.
“By not allowing Plaintiffs to block the upload of infringing materials at the time of upload, Defendants force Plaintiffs and the Class into a time consuming, cumbersome, inaccurate, and flawed ‘manual’ process to enforce their copyrights, all to the benefit of Defendants’ money-making machine.”
No Respect for Copyright Management Information
The complaint also takes a deep dive into YouTube’s alleged misconduct in respect of Copyright Management Information (CMI), metadata that can be found in lawfully sold copyright works which can provide a means to discover who owns it, in YouTube’s case at the point of upload to its platform.
“YouTube neither encourages nor protects the original CMI metadata during the upload process, even though YouTube knows it exists and its value for protecting the rights of creators,” the plaintiffs write.
“Defendants have created a system that not only disregards, but eliminates or conceals, and/or encourages uploaders to eliminate or conceal, CMI from the video files published on the YouTube platform.”
YouTube Not Entitled to Safe Harbor Protection Under the DMCA
Due to its actions, YouTube cannot rely on the safe harbor provisions of the DMCA, the complaint alleges. These include placing limits on the number of takedown notices it will process, preventing plaintiffs from properly enforcing their rights. When these limits are exceeded, the lawsuit states that rights holders risk losing access to YouTube’s infringement mitigation tools.
It further alleges that YouTube now requires some notice senders to identify what part of an allegedly-infringing work infringes their rights by supplying time stamps. While this is automated under Content ID, those outside the system find themselves with additional work.
“By conditioning these notification and takedown procedures on the provision of additional information — information not required under the DMCA — YouTube has violated the requirements of the DMCA and forfeited its safe harbor protections.”
The action further alleges that YouTube’s ‘three strikes in 90 days’ termination policy is deficient since when timed appropriately, it allows users to safely upload eight copyright infringing works in a year without being terminated.
“By erasing copyright strikes after 90 days, YouTube has not satisfied the safe harbor requirements of the DMCA and forfeited its safe harbor protections,” it adds.
Piling on the pressure, the complaint says that YouTube has constructive knowledge that repeat infringers are infringing works of the plaintiffs’ and class since these are being shielded from termination by the Content ID system which does not deliver ‘strikes’. It further adds that YouTube is profiting from infringements that it could control, another disqualifier from the safe harbor provisions.
Potentially Billions in Copyright Infringement Damages
In summary, the complaint alleges direct copyright infringement, inducement of copyright infringement, contributory copyright infringement, vicarious infringement, and removal of CMI, contrary to the Copyright Act. As a class action, many more rights holders could now pile on, with the potential for calculator-busting claims for damages.
The full complaint can be obtained here (pdf)