NYU Law School's Video Teaching Copyright Completely Flummoxed YouTube's Copyright Filters

from the not-this-again dept

You may recall a few years back that Harvard Law Professor William Fisher had one of his lectures about copyright taken off YouTube by a bogus copyright claim from Sony Music. It appears that something new has happened to the Engleberg Center at NYU's School of Law, in which a panel discussion on "proving similarity" in copyright law (a big, big topic ever since the awful Blurred Lines decision came down), was taken down itself. It wasn't just taken down by a single bogus claim, but a whole bunch of bogus claims ("whole bunch of bogus claims" is my band's name, by the way).

The folks at NYU Law know the law (duh), and pointed out that the use here was unquestionably fair use (short clips, used in an educational setting, etc.) and filed various counternotices. And yet, Universal Music said "fuck that" and refused to release the claim:

Now, it's especially interesting that Universal Music Group was the one who refused to back down, given that it was subject to one of the few cases in which it was determined that a copyright claiming entity must consider fair use before making a claim. But, of course, the court also made it clear that if an entity (such as UMG) chose not to do that, there really was no real punishment.

As the NYU folks note, it was unclear if allowing the copyright claim to remain would result in multiple strikes against its account, given that there were multiple claims made on this one video. The only way the issue got resolved... is that NYU was able to raise enough a stink within YouTube:

This would have been a dead end for most users. Unable to understand how the already opaque dispute resolution process might impact the status of their account, they would have to decide if it was worth gambling their entire YouTube account on the chances that their some combination of YouTube and the rightsholder would recognize their fair use claim.

Since we are the center at NYU Law focused on technology and innovation, it was not a dead end for us. We reached out to YouTube through private channels to try to get clarity around the copyright strike rules. While we never got that clarity, some weeks later we were informed that the claims against our video had been removed.

While some may just dismiss this story as yet another wacky case of copyright gone wrong (or, "yet another anomaly"), it highlights a bunch of key points, including the difficulty in fighting back even if you know things are fair use. But, most importantly, it again highlights the serious problem with the EU's Copyright Directive, which requires these kinds of problematic filters to be on basically every internet platform imaginable, massively ramping up how often we're likely to see these kinds of bogus attacks on speech.

Anyway, since NYU was able to get the video put back up, we can now all watch it -- and I'd encourage you to do so. However, it's a reminder that most people hit by bogus copyright strikes probably don't have the connections to get their videos put back up.

Filed Under: automated filters, copyright, education, fair use, strikes, takedowns
Companies: nyu, umg, universal music group, youtube


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  • icon
    hij (profile), 6 Mar 2020 @ 8:59am

    No other options

    Due to the overbearing costs of the burden of policing content it is highly unlikely that another company can step in and create a website that will do a better job of resolving a situation where one party is gaming the system. Everybody wins. Well, except for anybody making content on their own.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 6 Mar 2020 @ 11:02am

      Re: No other options

      The solution is simple: Hire one person to review DMCA notices instead of letting the computer handle them automatically. That person will get backlogged to the 22nd century on day one (job security). The site is complying with the DMCA, users aren't getting demonitized unfairly and copyright-violating content gets taken down (eventually). Everybody is happy.

      Before you argue that there is a deadline for handling DMCA notices, there is not. The law says "expiditiously" which is left undefined.

      reply to this | link to this | view in chronology ]

    • identicon
      Bruce C., 6 Mar 2020 @ 11:46am

      Re: No other options

      Two thoughts:
      1) Just having a decent competitor might make Youtube pay more attention to this issue. Assuming they even care about user-created content anymore.
      2) Until such a competitor grows, the problem isn't as big for them. They also have the opportunity to build their systems from scratch rather than dealing with changes to established technology and business policies.
      For content creators these days, the best use of Youtube is probably to announce videos that you've posted on other platforms. It's just not worth the hassle.

      reply to this | link to this | view in chronology ]

      • icon
        Anonymous Anonymous Coward (profile), 6 Mar 2020 @ 12:06pm

        Re: Re: No other options

        YouTube has competitors. However, for whatever reasons, the marketplace has not given those others the same standing as YouTube.

        How would you go about leveling the playing field? Legislation? Extremely forceful wishing? Government sponsored advertising of those competitors? Demand? Magic wand?

        reply to this | link to this | view in chronology ]

        • icon
          bhull242 (profile), 6 Mar 2020 @ 6:31pm

          Re: Re: Re: No other options

          And the thing is that none of the reasons why YouTube has remained dominant in its area has anything to do with buyouts or mergers. To my knowledge, other than Google’s purchase of YouTube itself (at a time when there weren’t any major competitors then, either), nothing Google has purchased involved YouTube’s business.

          reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 6 Mar 2020 @ 9:54am

    Dick Dastardly: Goodness Pureheart violated my copyright!
    Copyright police: Ms. Pureheart, you've violated Dick Dastardly's copyright.
    Goodness Pureheart: No I didn't. I've been falsely accused!
    Copyright police: Mr. Dastardly, is your accusation of copyright violation false?
    Dick Dastardly: *twirling mustache* No, not at all. Everything's above-board here.
    Copyright police: OK, that checks out. Your video is under arrest, Ms. Pureheart. It has the right to remain silenced.

    How does this scenario make any sense at all?!? If your response to someone telling you someone lied about them is to ask the alleged liar if he told a lie, both a liar and a truth-teller will say they didn't, so this adds no useful information to the process. The only thing that actually makes sense is for the Copyright Police to investigate the facts of the matter.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 6 Mar 2020 @ 10:15am

      Re:

      The facts only matter if you can apply enough leverage to get them considered. Legal, social, personal. And don't expect a well considered, logically consistent reply.

      reply to this | link to this | view in chronology ]

    • identicon
      cpt kangarooski, 6 Mar 2020 @ 10:16am

      Re:

      How does this scenario make any sense at all?!?

      It doesn't! You completely left out Muttley.

      reply to this | link to this | view in chronology ]

    • icon
      ECA (profile), 6 Mar 2020 @ 11:59am

      Re:

      But can we repurpose this, to cartoons?
      How many cartoons even made by the same people, used the same formula..
      Even your listed characters were shown and used many times in cartoons.
      yes Im being silly.

      reply to this | link to this | view in chronology ]

      • icon
        ECA (profile), 6 Mar 2020 @ 12:00pm

        Re: Re:

        Except..
        Many times, the music, is 1 group, Vid another, Direction another, Color another..
        Its totally, ridiculous, of who wons what and whee and how much..

        reply to this | link to this | view in chronology ]

    • icon
      Scary Devil Monastery (profile), 10 Mar 2020 @ 2:49am

      Re:

      "If your response to someone telling you someone lied about them is to ask the alleged liar if he told a lie, both a liar and a truth-teller will say they didn't, so this adds no useful information to the process."

      Welcome to copyright law. I believe this issue was addressed - multiple times - when the DMCA was formulated, but the staunch proponents of copyright maximalism writing that legislation kept insisting that actually introducing anything which could serve as a realistic "burden of proof" would introduce an impossible oner on the poor, poor copyright holders seeking redress under that law.

      As a result then, we get the situation above, where dick dastardly always wins as long as he can get a moustache-twirl in sideways.

      And today, of course, no one's happy with the DMCA. The adherents of common sense because it bypasses any form of jurisprudens, and the copyright maximalists because the DMCA still offers safe harbor.

      In the best of all possible worlds where humans aren't actually human, a sensibly scaled-down copyright law might actually work. In the real world, however, we can see that any copyright law at all will be inflated into sheer, staggering insanity as vested interests keep pouring lobbying money into the campaign funds of weak-willed political opportunists eager to sacrifice anything or anyone if it can get them that congressional or senate seat.

      Eventually we'll come to the same conclusion as we did about copyright's spiritual predecessor, the religious blasphemy law of the middle ages - and tear this rancid latest iteration of information control from the tablets completely.

      until then we just have to cirumvent, protest and ignore it as well as we can.

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 6 Mar 2020 @ 11:29am

    Now, it's especially interesting that Universal Music Group was the one who refused to back down, given that it was subject to one of the few cases in which it was determined that a copyright claiming entity must consider fair use before making a claim.

    The ruling specifically referred to DMCA claims, as I recall. The claims against NYU were Content ID, not DMCA, and court rulings have repeatedly said (as you've pointed out) that Youtube can moderate their platform however they see fit.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 6 Mar 2020 @ 12:02pm

      Re:

      ContentID is not YouTubes moderation, but moderation of YouTube content by external entities, because of the holy nature of copyright.

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 6 Mar 2020 @ 12:40pm

        Re: Re:

        ContentID is... moderation of YouTube content by external entities, because of the holy nature of copyright.

        That's the reason they created it, but the government didn't force them to create it, so things like "fair use" don't apply. This is just Google outsourcing their moderation decisions to the record and film companies. It's a bad idea, but CDA 230 protects their right to moderate badly.

        reply to this | link to this | view in chronology ]

        • identicon
          Anonymous Coward, 6 Mar 2020 @ 1:22pm

          Re: Re: Re:

          That's the reason they created it, but the government didn't force them to create it,

          The government didn't, but the legacy industries muscled them into creating it by threat of taking YouTube to court on as many issues, and in as many jurisdictions as possible. It is a peculiarity of the US legal system that of you have have money and willing lawyers, you can drive people and companies into bankruptcy, while losing every case you bring.

          reply to this | link to this | view in chronology ]

  • icon
    ECA (profile), 6 Mar 2020 @ 12:06pm

    Waiting for it..

    that the Beat..
    The rhyhm..
    The words,
    And every other part of a song are going to be separated into parts, and debated are Copy rights.(I think its already been done)

    reply to this | link to this | view in chronology ]

  • icon
    That One Guy (profile), 6 Mar 2020 @ 1:02pm

    Sure would be nice to see some penalties there...

    Sadly this is exactly what is expected when there is zero penalty for making bogus claims.

    Claim everything, back down whenever you feel like it, not like it matters because someone else is always the one paying for it.

    Put some actual penalties in place for filing bogus claims and enforce them and I imagine instance like this would drop real quick, if not from people becoming a lot more careful in issuing claims then because they've been fined and/or penalized so badly that they aren't in a position to be making claims.

    reply to this | link to this | view in chronology ]

    • icon
      ECA (profile), 7 Mar 2020 @ 1:27pm

      Re: Sure would be nice to see some penalties there...

      TOG.
      That a take down notice FOR a private entity, is neither legal/illegal.. Its them protecting themselves.
      This is NOT a legal judgement, so there is no recourse.

      YT does the simplest thing they can. JUST take it down. Dont know/understand/debate the LAW with anyone, because then you MAY need to goto court and try to debate this.
      But this also can work against the Agencies ALWAYS over using the system. to get he court the BACK UP/support/substantiate the law.

      But also the Music/movie industry is so convoluted, In a movie, there are TONS of CR. for Music, Direction, Publishing, WHO owns the rights, and who owns the film..its stupid. it should be 1 package deal. not different times for all the CR.

      reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 10 Mar 2020 @ 4:07am

      Re: Sure would be nice to see some penalties there...

      Indeed, its the copyright equivalent of anti-SLAPP.

      reply to this | link to this | view in chronology ]

  • icon
    That Anonymous Coward (profile), 6 Mar 2020 @ 1:12pm

    Well there is no penalties for screwing the little guy in the law, why are we shocked they don't give a shit about the little guy getting answers.

    reply to this | link to this | view in chronology ]

  • identicon
    Lawrence D’Oliveiro, 6 Mar 2020 @ 2:06pm

    And This Is Why We Need Due Process

    This is yet another in the long line of cases proving that social-media sites are completely incapable of governing themselves.

    What do you do when you get stuck on an unredeemable market failure? You end up having to call in the regulators.

    reply to this | link to this | view in chronology ]

    • icon
      That One Guy (profile), 6 Mar 2020 @ 4:26pm

      Use of a platform is a privilege, not a right

      This is yet another in the long line of cases proving that social-media sites are completely incapable of governing themselves.

      No, it's really not. If anything it's yet another in a long line of cases showing how screwed up things are with an entirely one-sided copyright law, how there are zero penalties in place for bogus claims and therefore lots of them are made, and how moderation at large scale will result in the occasional screw-up even before the other problems are factored in.

      What do you do when you get stuck on an unredeemable market failure? You end up having to call in the regulators.

      You're solving the wrong problem, assuming your suggestion would even do that.

      Just throwing regulation at it without addressing the underlying issue(zero penalty for bogus claims, plus a massively one-sided legal system that incentivizes pulling content on accusation) would simply add to the problem.

      But, out of curiosity, what regulations do you think would have solved this issue or prevented it from cropping up?

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 7 Mar 2020 @ 6:34am

        Re: Use of a platform is a privilege, not a right

        A large part of the problem is that we're not only allowing but requiring private parties to take action to participate in acts of extrajudicial law enforcement. Copyright law should be enforced just like any other law, by the police and by the courts, not by YouTube. If Universal Music had to go to the effort of actually filing suit in a court in order to have this video taken down, you'd better believe it would never have happened!

        reply to this | link to this | view in chronology ]

        • icon
          That One Guy (profile), 7 Mar 2020 @ 6:57pm

          Re: Re: Use of a platform is a privilege, not a right

          That's largely where the 'one-sided law/penalties' come into play, as currently platforms have no incentive to leave something up once it's been claimed to be infringing, whereas they have lots of incentives in the form of potential liability to take it down immediately.

          Shield platforms from liability so that they can risk leaving something up and your suggestion of making them actually do some gorram work before content is pulled would likely solve a lot of problems.

          reply to this | link to this | view in chronology ]

          • identicon
            Anonymous Coward, 8 Mar 2020 @ 5:19am

            Re: Re: Re: Use of a platform is a privilege, not a right

            and your suggestion of making them actually do some gorram work before content is pulled

            Two problems with that idea:
            1) the sheer volume of notices that are delivered to a platform.
            2) The people running the platform do not have the information needed to make a determination, being neither the claimant or the poster. Beside which people with any experience in the relevant area of law are expensive to hire compared to those needed to just enter the claim into the system.

            Third party liability and responsibility is insidious because it requires the party with the least knowledge, and which allows content to be published in quantity to act on notices.

            reply to this | link to this | view in chronology ]


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