Content ID, by contrast, is an opaque and proprietary system where the accuser can serve as the judge, jury, and executioner. Worse, the person whose speech is being silenced has little recourse. The Content ID system tips whatever balance is present in the DMCA and allows even more pernicious forms of manipulation and abuse. In a Wired column earlier this year, Andy Baio enumerated some of the problems that YouTube users encounter:

But there has been a dramatic rise in Content ID abuse in the past couple of years, wielded in ways never intended. Scammers are using Content ID to steal ad revenue from YouTube video creators en masse, with some companies claiming content they don’t own deliberately or not. The inability to understand context and parody regularly leads to “fair use” videos getting blocked, muted or monetized.

But even without taking scammers into account, the premise behind Content ID is just incompatible with fair use and the public domain. It's impossibly complicated to define in a set of "business rules" for automated enforcement. Allowing Content ID robots to apply the rules leads to oversimplification that chills legitimate speech.

But in accommodating the demands of large copyright holders, YouTube has inadvertently reminded us all of the crucial point that flagging copyright infringement isn't nearly as simple as it is often portrayed by rightsholders. Even scanning videos for exact content matches that exceed certain thresholds (in order to preserve at least some fair uses) actually fails in all sorts of interesting ways.

Rather than acting as a neutral arbitrator between major content companies and independent organizations, YouTube's system favors the larger rightsholders that make use of its Content ID system over smaller creators. And because it's a private system that goes beyond the DMCA, the Content ID system is under no legal obligation to comply with the DMCA's safeguards and timelines.

Indeed, if Warner were correct, which it is not, Section 512(f) would become largely superfluous. Any company could sidestep accountability for improper takedowns by simply outsourcing the process to a computer. What is worse, copyright owners would have a perverse incentive to dumb-down the process, removing human review so as to avoid the possibility of any form of subjective belief. The tragic consequences for lawful uses are obvious: untold numbers of legal videos would be taken down, whether or not the uses were fair or even licensed.

Imagine the potential for mischief: Let’s say that Warner does not like competition from Universal. It could set a computer to search through Universal’s online presence, with the loosest possible settings, and issue takedown after takedown to Universal’s ISP for spurious claims. Nor is this scenario far-fetched: as noted above, supra at 4-5, anticompetitive uses of the DMCA takedown process are commonplace.

We are also working in cooperation with a newly-formed organisation, the United Copyright Group, that provides an holistic solution to illegal file sharing and provides a comprehensive set of tools designed to deter and prevent illegal file sharing. More will be written about this new phase of tackling illegal file sharing in due course.

A new joint working relationship with US-based attorneys has opened up the North American region to our clients for identification and pursuit of illegal file sharing of their products.