When designing intellectual property laws, the struggle inherent in legislating is designing a law that will ensure that creators and inventors have adequate incentives to continue revealing new knowledge to the public while also not overly limiting the public’s ability to interact with prior works or express their own useful ideas. This balance has been especially difficult in light of the popularization of the Internet, which as a medium inherently promotes and requires the rapid diffusion of knowledge between numerous distant users.
The unique problems of the Internet are especially troubling for copyright enforcement. In addition to direct infringers of copyrights being liable for infringement, third parties can also be liable for either contributory infringement or vicarious infringement. Contributory Infringement applies to “one who with knowledge of the infringing activity, induces, causes or materially contributes to the infringing conduct of another.” Vicarious liability, on the other hand, is based on the principle of respondeat superior and applies to those with a right or ability to control the infringing activities and a direct financial interest in such activities. It is not difficult to see the issues that these doctrines could pose for major websites like YouTube. YouTube hosts an extremely large amount of user submitted content and directly benefits from this large amount of content. However, given how much content they have on their site, it is almost guaranteed that copyrighted material will be submitted in large numbers.
The unique problems of the Internet are especially troubling for copyright enforcement.
In the Digital Millennium Copyright Act, Congress included several “safe harbors” to protect the operation of websites like YouTube that cannot possibly actively manage all of their content. These safe harbors say that a “service provider will not be held liable … for infringement of copyright by reason of the provider’s transmitting, routing, or providing connections for, material through a system or network controlled or operated by … the service provider” under certain conditions. One of these situations exempts the service provider in situations in which the content added by users is merely “hosted” on the site on behalf of subscribers. However, in situations in which YouTube gains specific knowledge about infringing content, they can only maintain the benefit of this safe harbor if they “act expeditiously to remove, or disable access to, the material.” The Second Circuit dealt with this issue in relation to YouTube specifically in the case Viacom International, Inc. v. YouTube, Inc., in which the court reinforced the idea that websites need not actively monitor all submitted content and can simply put into place a system for notification of copyright infringement.
YouTube has two methods by which copyright owners can file a complaint against the use of copyrighted material in another’s video. The first method is a “Content ID Claim.” Content ID Claims do not result in disciplinary action against the user who uploaded the video, but can result in the video being taken down, muted, or even staying up but having its revenues shifted to the copyright owner. The second method is called a “Copyright Strike,” commonly called a “copystrike” for short. If one receives a copystrike, then the video is deleted. However, three copystrikes can result in “[one’s] account [being] subject to termination, all the video uploaded to the account [being] removed,” and the inability to create a new channel. This is a weighty punishment in an age where many YouTubers make videos as their primary source of income.
The issue with copystrikes recently came into the public eye when the Twitch streamer Alinity said that she was going to copystrike notable YouTube celebrity Pewdiepie due to allegations of sexism in his videos, despite the apparently obvious “fair use” nature of the use. Furthermore, other YouTube creators have received threats from extortionists who copystrike a video and only agree to withdraw the complaints if they are paid large amounts.
In the event of false claims, the DMCA says that creator of the allegedly infringing material cannot sue the service provider as long as the service provider followed certain steps involving how complaints are submitted, how notifications and counter notifications are delivered, and when the videos are deleted. However, it is possible for the creator to sue the party who submitted the false claim. In fact, YouTube creators Ethan and Hila Klein, operators of the channel h3h3productions, took a copyright holder named Matt Hoss to court in 2017 and won their case on the basis that the use of Hoss’s content in the video in question constituted clear fair use. However, not all users have the time or financial resources needed to pursue these cases. This is especially true for small channel creators, who may not have an opportunity to grow if they fall victim to an extortionist or a vengeful copyright holder early in the history of their channel.
Furthermore, the courts would likely be overloaded if all such creators did actually pursue the issue in court. The DMCA perhaps does not give adequate weight to the public’s interest in utilizing existing content to create new and transformative content of their own. Without changes designed to limit the ability for copyright claims to entirely eliminate a user’s channel or changes designed to force the service provider to do their own investigation of fair use claims, the growth and potential of the Internet may continue to be limited by these sorts of abusive copyright claims in the future.
John Stathis, 25 March 2019