So, Vice's Motherboard has an amusing article about how the misleadingly named GuitarHeroFailure (misleading, because the guy's actually good at the game) tried to get around YouTube ContentID takedowns on one of his Guitar Hero videos (of Ozzy Osbourne's "Bark at the Moon") by singing an acapella version of the song over it. The overall effect is really quite amazing. Watch the video (and don't miss his, um, "variation" at the very end) below:
The guy claims, in a separate video that he wasn't really trying to comment on copyright law (he actually says "YouTube's copyright laws," which, you know, aren't actually a thing). But, no matter what it is commenting on it. He notes that he was really proud of how well he did in that particular game, and was disappointed that it got taken down by YouTube.
But, even if he didn't mean for it to be a comment on copyright law, it absolutely is. But here's the craziest part. It's likely that his new video also violates copyright law. Because, remember, when it comes to music licensing in particular, copyright law is insane. There are multiple licenses that you need. There's one for the sound recording -- and in this case, he doesn't have to deal with that one. But, if you're doing a cover song, you need a mechanical license for the composition of the song. And then, the fact that it's been put on a video raises a whole separate issue, which is the need for a totally different license called a synch license, for when you use a composition with a video.
Of course, YouTubers rarely (i.e., basically never) get such licenses at all, and it's mostly ignored by everyone. But that doesn't mean it will always be. And, again, that highlights the absolute insanity of music licensing these days. People are doing stuff that clearly is not taking away anything from the market for the original music, but because of the messy, patchwork setup of copyright laws and music licensing, it's almost impossible to be fully compliant no matter what you do.
And don't even get me started on the copyright questions raised by this other video in which someone took GuitarHeroFailure's acapella and synched it to the original Ozzy song. Because, really, there aren't enough hours in the day to analyze that mess...
Big companies often have a way of tap dancing around the truth. It's rarely lying, because they will choose their words carefully, in a manner that clearly misleads or distorts, but is not necessarily outright lying. T-Mobile, however, appears to be flat out lying. We recently wrote about the charges from YouTube that T-Mobile was throttling YouTube videos as part of its Binge On program that zero rates video on mobile phones so it doesn't count against data caps. We noted the problems with this program when it launched, but YouTube's claims take it even further.
Again, the program supposedly "optimizes" video streams down to a lower resolution, with the promise that partner videos will not count against T-Mobile's data caps. However, YouTube pointed out that it is not a partner and its videos were being throttled, in clear violation of the clear "no throttling" rules from the FCC. T-Mobile took exception to my post about it and demanded corrections and clarifications, making a few different claims. After investigating the claims, I can say (1) that we will not be clarifying or correcting anything in the original post and (2) more importantly, it appears that T-Mobile is flat out lying in some of its claims. It's not dancing around the truth, it is claiming things that are simply untrue. This is the key claim that T-Mobile's PR person made to me:
Using the term “throttle” is misleading. We aren’t slowing down YouTube or any other site. In fact, because video is optimized for mobile devices, streaming from these sites should be just as fast, if not faster than before. A better phrase is “mobile optimized” or “lower resolution.”
This is clearly not true. While you can have a semantic debate about whether "throttling" is "optimizing," the facts with T-Mobile are pretty clear: it is NOT optimizing YouTube videos at all. It is 100% throttling them.
When Binge On first launched without YouTube as a partner, many people asked why, and T-Mobile's VP of Engineering, Grant Castle, explained that the reason was because it could not identify YouTube videos, since nearly all YouTube traffic is encrypted. Thus, T-Mobile admitted that it had no way to "optimize" YouTube videos:
T-Mobile says the problem is technical. The software it is using to deliver streaming video at lower-definition quality needs to be able to identify the incoming traffic as being video as opposed to, say, photographs or email. It can’t always do that with YouTube.
Most YouTube traffic uses a protocol called HTTPS, which T-Mobile can detect, but some portions may be using a less-used protocol called UDP that the wireless company has more difficulty reading, according to Grant Castle, vice president of engineering at T-Mobile. That means the carrier isn’t certain about the format of some streams coming from YouTube.
“YouTube is a little difficult,” said Mr. Castle.
Thus, the only thing that T-Mobile can do for many YouTube encrypted streams is not to "optimize" it at all, but to flat out throttle it down to speeds around 1.5 mbps. You can see this in the tests done by Dualsim.us and the following video.
Remember how T-Mobile in their message to me said that the "optimized" videos should show up "just as fast, if not faster than before." Yeah, that's bullshit. Watch the video below (I start the video about 5 minutes in -- the first five minutes mostly just show that the two phones are both on T-Mobile's unlimited network with similar speed connections -- at which point the video comparison is shown):
As you can see, rather than "just as fast, if not faster than before," what you see for the throttled -- not "optimized" -- video is, instead, something much slower. That's because T-Mobile appears to downgrade the data flow from ~12 Mbps down to something like 1.4 or 1.5 Mbps.
That's absolutely 100% throttling. There is no "optimization" going on because T-Mobile cannot optimize those videos, since they're encrypted.
T-Mobile is lying. Flat out lying.
And... in a bit of perfect timing, just as I was completing this post, I see that EFF has published the results of its own technical tests of BingeOn, which also confirm that there is no "optimization" here -- and got T-Mobile to admit it was lying. It's purely throttling:
Our last finding is that T-Mobile’s video “optimization” doesn’t actually alter or enhance the video stream for delivery to a mobile device over a mobile network in any way. This means T-Mobile’s “optimization” consists entirely of throttling the video stream’s throughput down to 1.5Mbps. If the video is more than 480p and the server sending the video doesn’t have a way to reduce or adapt the bitrate of the video as it’s being streamed, the result is stuttering and uneven streaming—exactly the opposite of the experience T-Mobile claims their “optimization” will have.
Given the difference between what T-Mobile implies they do and what we found, we contacted them to get clarification. They confirmed that they don’t do any actual optimization of video streams other than reducing the bandwidth allocated to them (and relying on the provider to notice, and adapt the bitrate accordingly).
In fact, the EFF study compared a hash of the download to a version that was on the server and found the files were identical (i.e., no "optimization" -- just purely throttling). Again, this is the exact opposite of what T-Mobile's PR person told me in demanding a correction. T-Mobile is lying.
EFF also discovered that T-Mobile's earlier statement that it can't detect encrypted video is also misleading, as the company now claims it can:
The second major finding in our tests is that T-Mobile is throttling video downloads even when the filename and HTTP headers (specifically the Content-Type) indicate the file is not a video file. We asked T-Mobile if this means they are looking deeper than TCP and HTTP headers, and identifying video streams by inspecting the content of their customers’ communications, and they told us that they have solutions to detect video-specific protocols/patterns that do not involve the examination of actual content.
Finally, EFF realized that even if you're just downloading the video (i.e., not streaming, but downloading for later viewing), you STILL get throttled:
The first result of our test confirms that when Binge On is enabled, T-Mobile throttles all HTML5 video streams to around 1.5Mps, even when the phone is capable of downloading at higher speeds, and regardless of whether or not the video provider enrolled in Binge On. This is the case whether the video is being streamed or being downloaded—which means that T-Mobile is artificially reducing the download speeds of customers with Binge On enabled, even if they’re downloading the video to watch later. It also means that videos are being throttled even if they’re being watched or downloaded to another device via a tethered connection.
A separate claim in the email from T-Mobile is more of the "tap dancing around the truth" variety. And it's the claim that T-Mobile made it clear from the beginning that it would be doing this to non-partner videos as well. Here's what the T-Mobile rep said in the email to me:
This is how Binge On has always worked. We said it from the stage, in press materials, on the web, and in customer notifications last month, and media covered it last month, as well.
This is extremely misleading. Nearly everyone I've spoken to among people who follow these issues had no idea that the "throttling" (not optimization) applied to non-partner videos. I, as a T-Mobile customer, also never received any such notice (though the PR person then forwarded me the "notification" email, so I guess technically I have now received it). Either way, I went back to look at the press release and T-Mobile's own page about Binge-On to see about how clearly the company really revealed that it would also be throttling non-partner video. And the company was not at all clear about it.
In the press release (not surprisingly), T-Mobile focuses on all the Binge On partners. To realize that it's also throttling other videos you have to carefully parse some confusing text buried in the 8th paragraph of the press release, which most people won't even recognize. Here are paragraphs four through eight -- with the relevant mention bolded (without that, you might miss it):
With Binge On, video now streams free for viewers and subscribers of Crackle, Encore, ESPN, Fox Sports, Fox Sports Go, HBO Now, HBO Go, Hulu, MLB, Movieplex, NBC Sports, Netflix, Sling TV, Sling Box, SHOWTIME, STARZ, T-Mobile TV, Univision Deportes, Ustream, Vessel, Vevo, VUDU—with more streaming services on the way—without ever touching their 4G LTE data on Simple Choice plans with extra data. T-Mobile is also including Verizon’s Go90 and AT&T’s DirecTV streaming services in Binge On, so even the Duopoly’s video services stream without fear of overages.
Binge On is open to any streaming video provider who meets the technical requirements, which are available online at www.t-mobile.com/bingeon. And it’s completely free for video streaming providers to join.
“With Binge On, no one pays—not the customers, not the video streaming services—and everyone wins,” said Legere.
Powered by new technology built in to T-Mobile’s network, Binge On optimizes video for mobile screens, minimizing data consumption while still delivering DVD or better quality (e.g. 480p or better). That means more reliable streaming for services that stream free with Binge On, and for almost all other video, it means T-Mobile Simple Choice customers can watch up to three times more video from their data plan. And, as always, T-Mobile has put customers in total control with a switch to activate or deactivate Binge On for each line in their My T-Mobile account. Binge On is all about customer choice.
So basically all of the press release is talking about how Binge On is about "free" video from partners, and then in the second half of a sentence, buried in the middle of a paragraph (eight paragraphs into the press release) is a tidbit about how "for all other videos" the bandwidth is downgraded (what T-Mobile falsely calls "optimized"). That is the farthest thing from being clear about what is happening.
Similarly, on the website for Binge On itself, this is far from clear. Most of the page goes on and on and on about how "you can stream all you want for FREE without using your data." The clear implication is that video streaming doesn't count against a datacap. Lower down it has the following:
What basically no one is going to realize is that the "Watch 3X more video" claim on the right is talking about non-partner video. They don't actually say that. In fact, given how so much of the focus is on how the video doesn't count against the data cap at all, the whole "3x more video" bit is actually kind of confusing, because they're both saying you can watch "as much video as you want" on the left, and then on the right, saying you can now watch 3x as much video. They are not being clear at all about this.
It's only if you go all the way to the bottom of the page and click to expand the first "question" about Binge On that it finally explains what this means:
I mean, it's really, really buried. Here's a screenshot of the whole page, showing you where this information is buried (and, remember, this is showing it to you after I've clicked the little "+" button to show more). Most people will miss it entirely:
So, yeah: T-Mobile is flat out lying in claiming that it "optimizes" YouTube, and it's being ridiculously misleading in arguing that it was abundantly clear about how Binge On would impact non-partner videos.
Now, the big question: will the FCC actually do anything about this?
For quite some time now, we've pointed out that the whole zero rating issue was a way for broadband providers to conduct a stealth war on net neutrality -- first putting in place "restrictions" that they could then "lift" for partners, pretending it was a consumer friendly move. Last month, T-Mobile introduced Binge-on, it's second such attempt at zero rating. Its first, Music Freedom, exempted some streaming music services from its data caps. Binge-On focused on video, but had a few oddities. Like Music Freedom, Binge On would make "select" video streaming platforms exempt from the data cap -- but in order to do that, it would downgrade the quality of those streams to 480p, a lower resolution than most are used to these days. It was notable that neither YouTube nor Amazon Prime were included "partners" in the launch.
But... some people started noticing some problems: specifically, even those services that have not partnered with T-Mobile started seeing their own videos downgraded. The complaints started to flow on Reddit: someone noticed that Amazon-owned Twitch.tv's videos were suddenly being throttled. Others noticed YouTube videos being throttled. In both cases, those users were able to "fix" the problem by going into their account and turning off Binge On, but it still seemed troubling that T-Mobile had decided to automatically turn on Binge On for users, downgrading streaming video, even for video providers who had not agreed to such provisions.
Degrading video quality this way violates the FCC’s no-throttling part of the net neutrality rule, which forbids reducing the quality of an application or an entire class of applications. Even though T-Mobile and its brilliant CEO, John Legere, have done much to shake up the mobile industry in positive ways (they even won me over as a subscriber), this is one practice that the company should, and probably must, abandon.
As a purely legal matter, T-Mobile cannot easily defend its actions by arguing that this discrimination is good for its users. The FCC has already rejected that argument in advance by adopting a “bright-line” rule for all technical forms of discrimination absent some special technical justification. After hearing from millions of Americans throughout 2014, the FCC decided earlier this year that “the record overwhelmingly supports adopting rules and demonstrates that three specific practices invariably harm the open Internet,” and named one of them throttling.
YouTube, which is owned by Alphabet Inc., said T-Mobile is effectively throttling, or degrading, its traffic. “Reducing data charges can be good for users, but it doesn’t justify throttling all video services, especially without explicit user consent,” a YouTube spokesman said.
T-Mobile -- which has never been a fan of the new net neutrality rules, seems to think that because the service is "optional" that makes it okay. But that ignores two key things: (1) the FCC's rules say no throttling and (2) even if it is optional, T-Mobile turned it on for everyone, without telling users, and has not made it at all clear to users what's happening. That is, in every complaint you see online, you'll notice that people have no idea that this service has been turned on.
That makes it hard to square with the idea that this is for the benefit of T-Mobile subscribers. T-Mobile's only statement on this issue so far is also totally disingenuous:
In a statement, the No. 3 U.S. carrier by subscribers said its customers “love having free streaming video that never hits their data bucket” and like “both the quality of their video experience and the complete control they have.”
Again, this is T-Mobile exempting certain services from the data caps it set up itself. If customers love having streaming video that doesn't hit their data caps, then there are all sorts of ways to do that, which don't involve messing up the user experience overall, and without surreptitiously turning this system on in a way that messes up the plans of users.
Over the last few months, we've seen basically all of the major telcos look for ways to test the boundaries of the new net neutrality rules. At some point the FCC is going to have to smack them down or the tests are going to get more anti-consumer and more blatant. And, again, don't be fooled into thinking this is a "pro" consumer move in that it exempts data from the cap. That's like someone tackling you and then demanding to be called a nice guy for giving you a hand to get back up. The data caps are set by T-Mobile itself. The argument pretending that an exemption is somehow consumer friendly should immediately be spun around to point out that the caps themselves are then clearly anti-consumer.
Either way, one hopes that the FCC is actually paying attention, otherwise the telcos are going to keep moving to walk all over the new rules, with plans like this one, figuring out where and how they can throttle or prioritize traffic based on the providers' own needs, rather than based on what the internet allows.
As you may recall, back in 2007, entertainment giant Viacom sued YouTube for $1 billion, arguing that it was nothing more than a piracy site. Of course, Viacom's case faltered, badly, when it was later revealed that over 100 of the videos it listed as infringing had been... uploaded by Viacom employees as part of a marketing strategy. That act alone showed that even Viacom employees recognized the site had "substantial noninfringing uses." After seven years of battling it out in court, the two sides finally settled last year. However, it does seem noteworthy that Paramount Pictures, the major Hollywood movie studio that is owned by Viacom just announced that it had posted over 100 of its own movies for free on YouTube in their entirety.
This is important for a variety of reasons, but most of all it shows that, once again, when legacy entertainment firms learn how to embrace new technologies, rather than sue them, they're better off. Legacy entertainment companies have basically tried to sue or kill every new technological innovation that somehow challenged new business models. They sued over radio, television, VCRs, cable TV, MP3 players, DVRs and internet video. And yet, once they learned how to use each of those, they realized how great these platforms were in helping to distribute, to promote and to monetize their works.
If Viacom had succeeded in its lawsuits and killed off YouTube, would these movies be available for free online today? I think most people would agree the answer is "no way."
This is a big part of the reason why I get concerned about attempts to shut down businesses that some insist are "nothing but piracy sites." The VCR was "nothing but a piracy tool." The MP3 player was "nothing but a piracy tool." Radio was "nothing but a piracy tool." And YouTube was "nothing but a piracy site." And yet... given the chance to grow and to innovate, these services show that they are successful because they're providing a better product. Suing them out of existence takes away opportunities like this, where companies learn that they can benefit from these (often free!) services to better promote, distribute and monetize their own works. It's easy to think that something that is often used for infringing works in the early days is never going to be anything useful or legitimate, but that ignores the history of innovation in this space. Every new innovation originally looked like a piracy tool. Until it no longer did. Perhaps, rather than trying to kill off every new service, Hollywood should take a lesson and realize that maybe it should be figuring out better ways to embrace them early on, rather than many years later.
Digital Music News has an unfortunate story that we've heard too many times before: that of an independent musician successfully building a following... only to do a deal with a major label and see it all come crashing down. What's interesting is that the artist, Terra Naomi, was willing to lay out all of the details. It's worth a read, as it's a story that is pretty common. That is not to say that signing a major label deal is necessarily a bad thing. For some artists it may be the right decision. But the way that major labels work is that you'll only get enough attention for the label to determine if you're "the next big thing" where all its revenue will come from for the next few years... and if things don't seem to be going that way, you'll be pushed aside quickly. The standard stat given is that 90% of major label deals "fail." That does not mean they are not profitable for the label. The way RIAA accounting works, the labels can make out like a bandit on many of those record deals, while the artist gets hung out to dry. That appears to be the case with Naomi as well.
She points out that she was one of the first artists to build up a large fanbase solely based on her YouTube and MySpace accounts. Here was her most popular song, Say It's Possible:
In the article, she talks about how she was connecting with fans and giving them a reason to buy. She talks about using YouTube to directly communicate with her fans, answering their questions, sending them messages and the like. And then, Universal Music came calling. And she made the very reasonable decision to sign with them, noting that while she had just pressed her own EP and quickly sold 5,000 of them in the first month they were available, she was still in debt, and a $250,000 advance was hard to pass up. It's easy to mock this decision, but you're probably not the one sitting there in debt with $250,000 on the table. That's why it's so tempting and why so many artists jump at the opportunity. It's not a crazy decision to make -- but it may present long term challenges, which is exactly what Naomi discovered.
Despite attracting attention for her success on YouTube, the label basically (1) had no understanding of YouTube and (2) recommended that she stop connecting with her fans. In other words, the exact opposite of what artists need to be doing in this internet connected era:
Contributing further to their feelings of betrayal was the mandate that came from my team at the label. They needed me to be “less accessible” and more untouchable. All these kids on YouTube saw me as an equal, as “one of them” – did I want to be a YouTube star, or did I want to be a rock star? They threw down the gauntlet, and there was no question in my mind. I wanted to be a rock star.
I handed over my mailing list and social media logins to the record label. I trusted this team of professionals to grow it into something much bigger than I could ever hope to create on my own. I backed off, disappeared, focused on writing songs and hanging out with the “right” people rather than connecting with my fans and the community I’d grown to love and depend on, prior to signing my deals. I figured I’d play by their rules for a little while, build my career into something even bigger, and reunite with my community once the label was satisfied with my rock star status.
Not surprisingly, it didn't work out that way. The label also pushed her to make a more commercial album, which she hated:
The producer I worked with told me we only had one shot, and I needed to make the album he wanted to make – with its “radio-ready” production – and once I had a few hits, I could make any album I wanted. So I made the album he wanted to make, and things didn’t happen the way he said they would. Instead of the big commercial radio success that would give me the freedom to seamlessly transition into the music I truly wanted to make, I had a big commercial flop (I think we sold something like 25,000 albums), an album I didn’t like, and I’d wasted what could have been the biggest opportunity of my life. The exposure I built independently on YouTube was more than the record label ever did for me, and I couldn’t believe I’d been so willing to hand it over for a longshot gamble on mainstream stardom.
And, of course, once she finally got out of the major label system, the audience that she had originally connected with, but forsaken, had moved on. As she notes:
My biggest takeaway from this time was a lesson in authenticity. It’s tempting to listen to people who want to change us, even just a little bit, and steer us in a direction that isn’t authentic. It’s easy to doubt ourselves, especially when we’re just starting out. We think people with more experience know better than we do about what’s best for us, and it’s simply not the case. We fall for the hard sell, the glitz and glamour, but for every massive major label success, there are dozens of disappointments and disastrous failures.
This isn't a huge surprise. For well over a decade we've been pointing out stories of successful artists who have built up huge fan bases online -- and the one factor that shows up again and again and again is authenticity. That's a huge part of the whole idea of connecting with fans. Actually being authentic is a great way to connect with like-minded fans, but it has traditionally gone against the cookie-cutter model of the major labels (though, to be fair, some are finally starting to figure this out, if only way too late).
Either way, Naomi's story is a good read, and should be worth thinking about for others who are tempted by the deals presented to them when they're first building a following. Put it in the group with the stories about RIAA accounting that further explain how a big advance may not actually be so big once you understand all the details.
There's an old saying that those that lie down with dogs will get back up with fleas. One modern derivative of that maxim might be: if you bend over backwards for copyright censors you will become censors yourself. No better example of this can be found than YouTube's ContentID system, the automated platform that scours YouTube videos looking for uploads of identical audio or video content and proactively takes them down in favor of the original content owner. That's how it works in theory, that is. In practice, ContentID appears to be most useful in taking down fair use content, trolling legitimate creators, and even silencing political speech, supposedly the most revered thing in this great Republic of ours. It's typical in these cases for the automation to be blamed, but that's a mistake. The real blame lies with Google for implementing such a flawed system, with the entertainment industry and trolls for abusing it, and with all of us for simply accepting it. Everyone, in other words, is to blame.
I came to that conclusion recently, when Hugh Hefner used Mario Bros. to show me how silly all of this is. The whole thing started when a Kotaku writer uploaded a video of some Mario Maker levels that play themselves.
Two days ago, I uploaded a video to YouTube. It featured some awesome automatic Mario Maker levels that basically play themselves. Today, I was dinged with a copyright notice for that same video. The claimant was none other than...Playboy? I’m serious. I didn’t get flagged by Nintendo. Rather, I got flagged by Hugh Hefner’s operation.
Playboy, obviously, does not own Mario. It did not create Mario Maker. It did not build the level on display in my video. And yet my video was still flagged. What gives?
What gave was that Playboy had uploaded a video that contained one of the same levels in the other video. Because these levels play by themselves, rather than being played by a human, the videos have the exact same content. So, faster than a Mario Brother running with the 'B' button mashed down, ContentID flagged Kotaku's video as infringing and sent out a notice. Other users likewise had videos of that Mario Maker level flagged in favor of Playboy, which I am very much certain doesn't own any of the IP surrounding Nintendo's center-piece franchise. Most, like the Kotaku writer, submitted disputes which were resolved quickly. Playboy, for its part, has been active in getting all of the claims dismissed...
...which is entirely besides the goddamn point. ContentID was dinging uploaders for copyright violations in an automated fashion, with no checks, on content owned by an unrelated party. That doesn't make any sense. And, in some cases, there can be actual harm done.
When you get flagged, the claimant has a whole 30 days to review your dispute, during which your video typically stays up while also making money for the claimant. Sometimes, the claimant will even be able to block the video from being viewed entirely. Even if the dispute gets dismissed, it might mean waiting days if not an entire month for the motion to actually get through. In the meantime, any YouTuber who supports themselves with ads and just wanted to show off the level to their subscribers, or perhaps added some good commentary to the footage, will lose revenue (as well as gain an unnecessary headache.)
Personally, I'd love to see "An unnecessary headache" as the epitaph on ContentID's gravestone.
YouTube and the music collection society GEMA have been at war for many years. Five years ago, I was at Berlin Music Week and it was one of the major points of discussion. YouTube was blocking all music videos, since GEMA insisted that YouTube should pay rates on par with digital sales (iTunes) rates for each play. Musicians I met with in Germany were furious at GEMA's obsessive control over their own music -- with one musician even showing me how he had an official website that GEMA was aware of, and an "unofficial" website his band showed to fans, which offered up free music (something GEMA refused to allow). The various court rulings in the case have been a mixed bag with some finding YouTube liable for user uploads, and even saying that YouTube needs to put in place a keyword filter.
German Courts also haven't been too happy with YouTube's custom message for (accurately) explaining why so much music is blocked in Germany. While YouTube and GEMA have tried negotiating a deal (as collection societies in basically every other country have done), in Germany it never seems to happen.
The latest ruling, in one of the key court cases is an appeals court ruling that upholds the lower court ruling saying that YouTube is not liable for infringing uploads by users and doesn't have to proactively search for infringing content. This is good. But, the court also appears to suggest that YouTube's ContentID is not enough -- and suggests it supports a sort of "notice and staydown" kind of system:
“However, if a service provider is notified of a clear violation of the law, it must not only remove the content immediately, but also take precautions which ensure that no further infringements will be possible.”
While that may appear reasonable at first glance, in practice it's a mess. The only way to even try to do that is to over-aggressively block any and all uses of that particular work -- which will undoubtedly lead to overblocking. Song playing in the background? Blocked. Parody video? Blocked. Algorithm not sure? Blocked.
A more detailed ruling is expected in a few weeks, but this seems like a mixed bag.
Another day, another big tech company doing things wrong. Matthew Lush is apparently a super popular YouTuber, who has been on the platform since 2005 (yes, a decade ago). His YouTube name was "Lush" which makes sense, given that's his name. But along comes Lush Cosmetics, and YouTube apparently just hands his channel over to the company. That's ridiculous enough, but it gets even more bizarre, when reporters asked Google to explain:
Google said it was "sympathetic" to Mr Lush's situation and that the decision was made by an algorithm.
Oh, come on. Yes, Google pointing to its algorithm making decisions makes sense when it comes to issues at scale around things like search results. But blaming taking away someone's username on an algorithm just seems ridiculous.
And then there's this:
[Lush Cometics] told the BBC it had not requested the change but would not say if it would give the address back.
Okay. So let's just work through this:
Matthew Lush registers his YouTube name "Lush" in 2005.
He spends years building up a massive following.
A decade later, a cosmetic company that did not ask for it is simply given Matthew Lush's popular YouTube username, based on "an algorithm" deciding this.
And Google insists there's no way to fix this.
Really? Yes, I know some people fear that science-fiction future in which the giant AI in the sky makes algorithmic decisions about what's best for us ("I'm sorry, Dave, I'm afraid I can't do that"), but I hadn't thought we were quite there yet. Because we're not.
It seems likely that what's missing from the BBC story is that there was some sort of naming conflict brought on by the various attemps to shift around YouTube naming conventions, integrate it with Google+ and all of that. In the end, there was probably some sort of conflict with two "Lush" usernames, and Google's "algorithms" gave the account to the cosmetics company instead. At least that's my interpretation of this statement:
Google said its algorithm decided which address Lush Cosmetics was given, based on data from YouTube, Google+, its search engine and other sources.
But if that's the case, at the very last, Google could be a lot clearer and upfront about it. And it seems to be a mess brought on by the company's own decisions about its username conventions. To play it off as just "well, those nutty algorithms again, nothing can be done" seems pretty ridiculous.
As you may have heard, DARPA, the wonderful government agency folks who helped bring us the precursors to the internet and self-driving cars, held a giant robotics competition this weekend, known as the DARPA Robotic Challenge, or DRC. It was full of amazing robots -- though everyone seems focused on the ones that fell over, despite the amazing advancements in robotics that were on display.
One bit of "robotics," whose best work is not on display, is the robotic nature of YouTube's ContentID copyright censorship. If you go to check out the six hour YouTube video of the DRC Finals Workshop on YouTube you'll get to witness everything, but not hear a damn thing. Because, apparently, there was a copyright-covered song playing somewhere in the background, YouTube muted the whole damn thing:
So, yup, rather than learning about the latest advancements from our soon to be robotic overlords, we'll just silence everything so someone's copyright isn't infringed because it was playing quietly in the background at a daylong event.
Well, well. We had just been discussing Konami getting YouTube to take down a video it didn't like, one produced by YouTuber Super Bunnyhop, which discussed a supposed breakup between the gaming giant and famed game-producer Hideo Kojima. The excuse for the takedown was apparently something like half-a-minute's worth of game footage from the Metal Gear Solid franchise, a significant portion of which was simply one game's title screen. YouTube, with its content-makers friendly notice/takedown policy, complied with the takedown. Often times, that would be the end of the story. We'd all cry foul, complain that copyright sucks, and head on to the next story.
This time, however, is different. Super Bunnyhop challenged the takedown with a notice to Google and Google responded by both reinstating the video and warning Konami to stop screwing around. After reinstating the video, here is what YouTube sent to Konami.
It's a standard notice Google sends out when takedowns aren't on the level, but it's still nice to see. Not only does the letter let Konami know YouTube is concerned over the bullshit takedown, but it also helpfully gave the company a quick primer on fair use. There is some polite language requesting additional information should Konami still want to claim the video to be infringement, but any cursory glance ought to be enough to know that the whole thing falls under fair use. YouTube also sent Super Bunnyhop a notice that the video had been reinstated.
"This may be the first time YouTube has quickly stepped in and reviewed a bogus copyright claim for a gaming video,” [Super Bunnyhop] said to me over email. “If that’s the case, then my situation may be breaking new ground, and this could be good news for YouTubers everywhere.”
Yeah, there's actually no real new ground being broken here. YouTube sends these letters out all the time and it reinstates videos like this when the takedown is crap as well. That said, every fair use victory is a step in the right direction and it's worth reminding everyone out there that the takedown doesn't have to be the end of the story for non-infringing videos. Sometimes intellectual property is used for censorship and there is little anyone can do about it. But that's not always the case and it's important to fight it wherever possible.