from the tools-of-abuse dept
We’ve talked far too many times about how the DMCA takedown processes across internet industries as they stand are wide, wide open for abuse. From churches wielding copyright to attempt to silence critics engaging in protected speech, to lawyers using copyright to try to silence critics engaging in protected speech, to freaking political candidates abusing YouTube’s DMCA notice process to silence critics engaging in protected speech… well, you get the idea. The point is that we’ve known for a long, long time that the current method by which the country and companies currently enforce copyright law tilts so heavily towards the accuser that it’s an obvious avenue for misuse.
And this is an issue created by bad actors big and small. Hell, apparently you cannot even criticique a sophomoric prank joke troop on YouTube without being targeted using copyright law.
Last week, Tripping, a smallish YouTube creator with about 88,000 subscribers, faced an uphill battle to keep one of his videos up. It was pretty standard as far as social commentary videos go on YouTube: an 11-minute presentation about “The Rise and Fall of NELK,” a prank channel that has nearly 7 million subscribers.
But since Tripping posted it in May, it’s been flagged for “copyright” infringement several times. Last week, it was successfully taken down by YouTube before being reinstated over the weekend, when 21-year-old Quentin, who owns the account, disputed it. But Quentin is now concerned that his video criticizing the pranksters was successfully censored by the Nelk Boys themselves through a loophole he says YouTube isn’t vetting carefully enough.
That appears to be precisely what happened. The back and forth over this 11 minute video is fairly amazing. The whole video called out the Nelk Boys for doing a bunch of dumb stuff, most specifically with regards to ignoring COVID and encouraging others to do the same. Other behavior was questioned as well. A week after posting it, Quentin’s video got flagged for a copyright claim and was blocked. He fought that claim and the video was put back online. Then, months later, Quentin was assessed his first copyright strike by YouTube, meaning his account was now in jeapordy of being shut down if future strikes occurred.
And the email from YouTube listed Kyle Forgeard of the Nelk Boys as the copyright owner issuing the claim resulting in the copyright strike.
“They’re using copyright … and YouTube’s system as a way to avoid the criticism; it’s a very common thing on YouTube,” he said. “There’s no way for YouTube to determine what’s this or that. If Nelk [claims copyright], they’re going to have to accept it out of respect for Nelk and YouTube not getting sued. But with fair use and for commentary, you’re allowed to use clips in that manner.”
When I reached out, a spokesperson at YouTube said users can file a dispute if they think their account was flagged erroneously, and, in this case, it was. I then asked them how YouTube is going to improve this system — especially when algorithmic moderation has become a widespread issue time and time again — but I did not hear back.
And that’s why nothing ever changes. The onus for getting protected speech back online, in the vaunted opinion of YouTube, falls squarely on the victim of the censorship-by-copyright tactic. Any time you try to kickstart a conversation about how to improve this system to make it balanced instead of tilted towards the claimaint, you get crickets. And the end result is the YouTube creator community being completely rudderless as to what exactly they’re supposed to do.
Quentin said he feels somewhat powerless when something like this comes up: “[Nelk] are so much larger than me. They have millions of subscribers and fans, and I only have a minimal fraction of what they have. All I’m betting on is YouTube is finally reviewing it and coming to terms with what’s right.”
He added, “I wouldn’t be surprised if they still want that video down.”
He just hopes YouTube “implement[s] a system that prevents larger channels from filing claims like this and have it go directly through because copyright is a serious thing.”
As is fraud and censorship, I might add. But for far too long YouTube has been reluctant to do anything about that side of this equation, preferring instead to molify the copyright industries and leave some segment of its user base hung out to dry.