That’s because rightsholder groups would insist that anything they claimed as their copyrights would need to be censored immediately,
not after some human had had a chance to review it (even giving it a
once-over might delay a blockade of a pre-release leak, to say nothing
of the many days it might take a skilled legal practicioner or archivist
to assess whether it would be appropriate to censor a piece of media).
This is an invitation to sloppy and malicious overreporting of
copyrighted works, resulting in massive, illegitimate censorship. For
example, newscasters routinely upload their entire evening broadcast to
Youtube’s Content ID filter, meaning that any public domain footage or
third-party materials (including clips from Youtube videos) are marked
as their copyrights – that’s how NASA came to be blocked from uploading its own Mars lander footage.
But it gets worse: the laws and threats that prompt tech companies to
institute copyright filters are aimed at preventing infringement at any
cost. That means that even if you have a repeat offender who routinely
claims copyright to things they don’t own, you can’t stop taking
requests from them, because if they ever do have a valid claim, they can sue you for ignoring it.
The world is full of sloppy, brutal copyright bounty hunters that use a
variety of tactics to remove their clients’ materials, and whose lax
standards mean that they often use those tactics to remove materials
that their clients have falsely claimed to own. Think of how the Social
Element Agency claimed that a tweet complaining about their sloppy copyright takedowns was a copyright infringement, and got Twitter to censor it.
The Social Element Agency firehoses copyright claims all over the
internet, and some of them are valid. If, after receiving hundreds or
thousands (or millions) of bogus claims from the Social Element Agency,
Twitter was to block them from submitting any more claims, then the new
EU Copyright Directive would make Twitter liable for any material that
infringed the Agency’s clients’ rights. That means that there is no
cost to being a bad actor, to committing rampant copyfraud. Bounty
hunters and rightsholders can be as reckless as they like in claiming
copyrights and they’ll still be able to load their works into the
copyright filters, no matter how much copyfraud they’ve committed in the
past. And since vetting your clients’ claims costs money, it will
always be cheaper to be reckless than to be careful, and the companies
that spend the least on checking their copyright claims before submitting them will earn the most money, and grow the fastest.
This dynamic plays out all the time, including this week, when the
text-hosting platform Scribd started to mass-delete copies of the
Mueller Report that its users had uploaded. The Mueller Report, being a
work produced by the US government, is in the public domain, which means
that anyone can publish it. There are several publishers making copies for sale already.
One or more of these publishers uploaded their copy of the Report to
Scribd’s copyright filter, a fully automated system that does not
include human review. We don’t know why the publisher uploaded something
they didn’t have the rights to. Maybe they were being malicious and
wanted to drive sales of their report; or maybe they just automatically
upload everything they publish to every copyright filter they
can find, and don’t bother to pay anyone to make sure they’re not
claiming copyright over something they don’t own.
Whatever the reason, this immediately triggered mass takedowns of dozens
of users’ copies of the report. Once Scribd received users complaints
and was embarrassed by public disapprobation, it unblocked the text, and
that’s fine – until the next time it happens.
Scribd is a relatively small platform. What happens when a broadcaster
claims copyright over a key Trump gaffe on the eve of an election, and
it doesn’t get unblocked until the election is over? What happens when a
stock art company’s claims take down a photo of police brutality at a
public demonstration because a bus-ad in the background uses one of its
photos? What happens when your kid’s first steps can’t be shared with
your family back home because they happened in a room with a cartoon
playing on the TV?
YouTube’s copyright strikes have become a tool for extortion
Shoshana Wodinsky/The Verge:
An anonymous blackmailer has caught at least two
YouTube creators in a scheme involving cash ransoms and esoteric
copyright laws.
Last week, both creators shared stories of how their
channels were being threatened with a third copyright strike — and the
possible termination of their channels — from an anonymous extortionist.
The scammer offered to reverse the strikes in return for payment to a
bitcoin wallet (which, as of this writing, remains empty) or to an adjoining Paypal account (that has since been deleted).
“Once we receive our payment, we will cancel both strikes on your channel,” the blackmailer wrote
in a Telegram message to one creator — ObbyRaidz — who runs a small
channel dedicated to Minecraft walkthroughs. “You are free to charge
back if we don’t, but we assure you we will.”
“We’ll give you a very short amount of time to make your decision,” they added.
Copyright strikes serve an important purpose for YouTube,
preventing protected material — from pop songs to movie clips — from
being used without authorization. YouTubers served with one or two
strikes automatically have the offending videos deleted, and can also
have certain channel features, like the ability to monetize, restricted
in the long term. Getting those privileges back can take months of work, especially for smaller channels that are often overlooked in favor of their larger or more popular counterparts.
Three copyright strikes in a three-month period can take a video down for good. In a short clip
posted to his channel on January 29th, ObbyRaidz described it as
“basically extortion.” “If I don’t pay this dude,” he said, “he’s going
to strike a third one of my videos down.”
This isn’t the first time that Youtube’s less-than-perfect copyright system has stabbed creators in the back. The platform’s hands-off approach to moderation has allowed copyright trolls to thrive for years
— not only to extort money, but to doxx, slander, or troll. They can
also be used to suppress negative news; some companies have served comedians with copyright strikes in an attempt to stifle any videos mocking their brand.
Troublemakers have also used YouTube’s copyright system to phish or doxx smaller channels. In order to submit a counterclaim, YouTube’s policies
dictate that a creator must provide their personal information to the
channel filing the claim, which can open the door to real-life
harassment.
This isn’t the first time we’ve seen extortionists take
advantage of the platform. Similar cases of smaller channels being
conned out of cash through the platform’s strike system have cropped up more than a few times on the site’s help forums. When official channels stall, those forums are often the only recourse victims have.
In his video, ObbyRaidz mentions that his attempts to
contact YouTube personnel have all come up short, and any attempts at
repealing the strikes were denied.
Those who are able to appeal the strikes don’t have it
much easier. The process, when successful, can take at least a month —
and during that time, “you can’t upload at all,” according to Pierce
Riola, a voice actor whose YouTube channel been hit by similar extortion
scams in the past.
Some creators — including Pierce — have reported that YouTube’s algorithm can “punish”
channels that take breaks from uploading for an extended period of
time, relegating them to the back of the feed where their content is
less likely to surface. A smaller channel that’s stuck battling
malicious copyright claims instead of uploading, he added, could suffer
almost as much damage as if the channel was deleted outright.
Whatever strikes the extortionist brought on have now
been reversed, according to a series of tweets aimed at ObbyRaidz and
another creator, KenzoOG. “Both strikes are resolved and the videos
reinstated,” YouTube said, in a thread on ObbyRaidz’s twitter account. Reached by The Verge, the company confirmed that the strikes had been resolved.
Asked for comment on their policies surrounding this kind
of copyright abuse, a YouTube spokesperson pointed to a prior
statement. “Upon review, these takedown notices were abusive,” it reads.
“We have zero tolerance for the submission of fraudulent legal
requests, so we also terminated the channels that submitted these.”
Still, the incident raises real concerns about YouTube’s
ability to respond to copyright blackmail attempts. ObbyRaidz was unable
to flag YouTube’s attention until thousands of retweets and hundreds of Reddit comments
brought attention to the incident. Even channels with more than a
million subscribers have only been able to get the platform’s attention in response to a viral tweet.
The biggest problem is the structure of YouTube’s
copyright system, which places most of its scrutiny on the accused
rather than the accuser. As one Reddit user pointed out,
this extortionist was able to carry on an extortion scheme from a
recently created YouTube channel with no videos, made from a throwaway
email address, easy to create and easy to identify as suspicious.
The platform works under the good-faith assumption that only users with pilfered content would bother making these claims. The instruction page
for users looking to file claims even warns them not to misuse the
process. “But that’s not the world we live in in 2019,” says Annemarie
Bridy, a Stanford University law professor specializing in copyright.
“It’s a statute from a more innocent, optimistic era in the history of
the Internet.”
As Bridy put it, the problem is incentives: YouTube has a
lot more to lose from angry copyright-holders than angry users. Movie
reviewers on the platform who have found their channels bombarded with copyright strikes from
Universal Pictures, for example, after including clips or stills from a
particular Universal film in their reviews. Even after claiming that
these clips were protected as fair use, some found that YouTube
ultimately sided with the company rather than the creators.
“It’s the little folks who get lost in the shuffle,” says
Bridy. “That’s a shame, because it’s actually the accumulated little
folks who make YouTube worthwhile.”
A decade ago, when there were still people laughably insisting that the
internet was the worst thing that ever happened to musicians, I kept
pointing out examples of artists who were creatively embracing the
internet to great success – connecting with fans, building new business
models, and succeeding. And every time I did that, people would
complain that this example was an “exception” or an “anomaly.” And, they
had a habit of qualifying any success story – even if the
qualifications were contradictory. For example, if I highlighted an
independent artist’s success, people would say “well, that’s just a
small independent artist, they have nothing to lose, no big rock star
could ever succeed that way.” And then, when I’d highlight a big rock
star having success embracing the internet, I’d be told “well, it’s easy
for him, he already had a huge following.” It got so silly that back in
2008 one of our commenters coined “Masnick’s Law” to describe this phenomenon:
Masnick’s Law states that in any conversation about musicians doing
something different to achieve fame and/or fortune someone will
inevitably attempt to make the argument that “it only worked for them
because they are big/small and it will never work for someone who is the
opposite,” no matter how much evidence to the contrary might be readily
available.
Over the past few years, I thought this kind of “exception” thinking had
mostly died out, but it showed up again recently. We posted famed
science fiction author Ken MacLeod’s excellent opinion piece
arguing that, even though he’s a big supporter of copyright and against
anyone pirating his books, he’s absolutely against the EU’s plans for
Article 11 and Article 13 in the EU Copyright Directive. The key line:
“Far greater than my interest in copyright is my interest in a free and
open internet – or, failing that, in keeping the internet as free and
open as it is now.”
Straw-man argument, since he has a big publisher to both pay him and
defend his property rights. He’s not an indie who markets his own work
on the internet and has to fight mass piracy on his own. He doesn’t need
copyright protection when he has distribution sending his fans to pay
for his work (while the same fans might pirate the indies).
He is the one who wants big publishers to continue to dominate and
profit, while the indies want direct access to the public and the
elimination of the middleman that is this man’s meal ticket.
Of course, that’s nonsense. That comment is based on the idea that you
need to “fight” mass piracy, rather than looking for ways to build a
successful business model that involves connecting with your true fans.
And, of course, the impact on independent artists will be even more
serious than those signed to big publishers/labels/studios/etc. Indeed,
Ken’s own Twitter feed pointed me to an independent musician in the UK,
Stephen Blythe, who has written about why Article 13 will make life worse for him
as an independent musician. After detailing his situation as a
musician, he explains that if you want to get your music out there, so
that you can build a fanbase, you need to get your music onto the “most
popular music” sites. And to do that you have to use a special third party:
If an independent artist wants to get their music out there into the
world, to the most popular music sharing sites, they need to use some
kind of recognised distributor – as direct submissions are either
impossible, or extremely restricted. A pile of these have sprung up,
including Amuse, RouteNote, DistroKid, etc. Some charge a subscription
fee per year, some take a cut of any revenue generated, and some of them
don’t even have a website – operating just from an app. The concept is
simple: You send your music to them, and they distribute it digitally to
the various partners. One of these partners is YouTube.
But it turns out that those services, as part of their “value add” will “enforce copyright” for you:
What isn’t made clear by these distribution networks is that by
submitting your music to YouTube, you essentially give the distributor a
licence to enforce your copyright on the platform using the ContentID
system. This automatically detects any music uploaded along with a
YouTube video (including short clips), and flags it up as unauthorised.
To many this might sound great. Stop people stealing your stuff!
The problem of course is that there is very often no way to denote
authorised uses or channels with these common distribution services.
He then details two separate scenarios of artists being harmed by this
kind of “enforcement” including one that happened directly to himself:
An artist (A) is asked by a fellow musician (B) if they would be
interested in a collaboration. The process is simple: B will supply A
with some vocal samples that A can then chop up and use however they
wish. A gladly accepts, and comes up with a whole electronic composition
that brings the vocals to life. B loves the track, and asks if they can
use it on their upcoming DIY release. A agrees. B’s friend runs a small
label who agrees to put out the album, and they use a distribution
service which sends the album to all the major partners automatically –
including YouTube’s ContentID system. A few years later, A is producing
short video blogs and decides to use one of their old tracks as
background music. It gets flagged up as a copyright violation
automatically, which A disputes – but the appeal is rejected by the
distributor, who has no knowledge of how the track came about in the
first place.
He then explains that in a world where everything involves a massive
ContentID-like filter, you create a terrible situation for independent
musicians, who are at the mercy of much larger companies with no
flexibility:
Independent musicians are at the mercy of a system which locks them
out from negotiating their own contracts without major label backing,
and they therefore have to rely on gatekeepers which provide an
inadequate level of information and control over their own music.
Artists who are starting out lack the information required in order
to make informed decisions about their interaction with such services,
and can inadvertently give away their ability to exploit their creations
commercially due to how the systems are constructed.
The ContentID approach to copyright enforcement gives huge clout to
the first entity to register a piece of work within their system – which
is rarely going to be the artist themselves.
This model has no room for the ad-hoc, informal, and varying ways in
which independent musicians create and share their works online.
Or, in short:
The current ContentID system works on a first-come, first-served basis.
It puts huge power in the hands of intermediary distribution services
which do not provide a service that can ever give artists the amount of
control over their licenses they would require to fully exploit their
creations. The nature of the beast means that informal collaborations
between like-minded folks can unexpectedly tie up their creative
expression years down the road. Article 13 will only expand these
systems, which will inevitably be less sophisticated on other platforms
than ContentID. Independent artists lose the ability to share their work
even further.
I’d argue it goes much further than that. First, the major record labels see everything stated in the paragraph above as a benefit of Article 13.
Giving huge power to the middlemen gatekeepers puts them back in the
position they were in year’s ago, where they get to decide who gets
distribution and who doesn’t. That system created a world in which
musicians had to hand over their copyright and nearly all of the revenue
generated from their works in exchange for a pittance of an advance
(which was really just a loan). So, putting more gatekeeper power back
in their hands is the goal here.
Second, and even more concerning, is that Article 13 is premised on only
the largest platforms being able to comply – meaning that there will
be less competition on the platform side and fewer and fewer places
for independent artists to distribute their work, should they wish to
do so. That gives them fewer options and less ability to build a
fanbase, unless they get plucked out of obscurity by a giant gatekeeper
(again, going back to the way things were a couple decades ago).
Now, I’m sure that someone will pop into the comments and point out that
this example doesn’t count because it’s just a “small, independent
artist,” and that his concerns don’t matter to “real” artists (meaning
major label ones), but, haven’t we played that game long enough?
With the approval in the European Parliament of the
final text of the Copyright Directive, which will be definitely put to
the vote in a very few months’, the European Union has lost a historic
opportunity to produce copyright legislation adapted for the Internet in
the twenty-first century. What the European Parliament will finally
vote on is a technophobic text, tailor-made for the interests of the
copyright monopolies which, moreover, doesn’t guarantee the right of
authors to have a reasonable standard of living as a result of their
work.
If the law is eventually passed, it will be used for
wholesale curtailment of freedoms and more censorship, in keeping with
the bizarre idea that anything that doesn’t produce hard cash for the major players– which doesn’t mean authors! – has to be prohibited and eliminated.
This is a tragedy for workers in the domain of
culture who (with a few, brave, and praiseworthy exceptions) have once
again been frivolously incapable of informing themselves about the real
state of affairs. They have passively swallowed the version fed to them
by their masters and, avidly playing the victim, have become the chief
mouthpiece of freedom-killing propaganda without the slightest
understanding that this is not going to enhance their rights but will do
away with the rights of everyone.
Alarm bells started ringing almost two years ago
when we discovered that, rather than being a proposal for an obsolete
copyright law, the directive is being used as a Trojan horse to
introduce surveillance, automatic data processing, government by opaque
algorithms, and censorship without court orders, etc.
This threat to such basic rights as freedom of
expression and access to culture and information lurks in ruses which
are mainly hidden in two articles of the Directive:
Article 11: no link without a license. Article
11, otherwise known as the “Linktax” article, has created a new
economic “right” for magnates of the written press. This ‘right’,
moreover, implies indefinitely restricting the possibility of citing the
press online.
If this seems absurd, arbitrary and
counterproductive, we invite you to read the proposal itself. This is an
ambiguous text, described by the jurist Andrej Savin as “One of the worst texts I have ever seen in my 23-year-long career as a law scholar.” Given
its muzzy formulation, the safest response for any platform will be not
to link to any media publication without explicit permission.
This perverse measure will be the equivalent, on a
European scale, to the “Google tax”, which is already in force in Spain
and Germany. Even its promoters were soon to regret it, when Google shut
down Google News in Spain after it was approved. The Google tax is
paradoxical and those responsible for initiating it know very well it
won’t work in Europe. For example, Xnet revealed that the big German
publishing company Alex Springer was paying itself – having linked up to
pay itself – in an outlandish pretence that “everything’s fine”.
Where are they trying to go with this? What sense is
there in this move by the press barons to push laws which prevent you
from linking up to their content, disseminating it, and commenting on
them? Is this just a mix of ignorance and greed, or something like
shooting yourself in the foot?
There is certainly something of this involved, but
we believe that this is a mix of ignorance and greed which, in the end,
means cutting off your nose to spite your face (when you’re trying to
damage someone else’s face). With laws like this, the press barons can
engage in legal harassment to the point of closing down social
aggregators and communities like Meneame or Reddit, eliminating any new
competitor, consolidating their monopoly, and thus becoming the lone
voice on the Internet, the only ones who speak. In short, they are
aspiring to become a new kind of television.
Article 13: no uploading content without a license. Platforms
– from medium-sized providers of services storing subject material
through to the giants of the Internet – will be considered responsible
for any copyright infringement committed by their users, and they are
bulldozed into taking preventive measures. In other words, this isn’t a
matter of eliminating content but directly preventing people from
uploading it.
Of course, nobody is forcing them to do anything.
They are simply being made responsible for material uploaded by their
users. It’s like a car salesman being held responsible for crimes
committed by people who buy his cars. This can only end up with
algorithmic upload filters being applied to absolutely everything or, in
other words, prior, automatic, and massive Internet censorship. This
can only end up with algorithmic upload filters being applied to
absolutely everything or, in other words, prior, automatic, and massive
Internet censorship.
Recently, YouTube prevented the pianist James Rhodes
from uploading one of his own videos in which he is playing Bach. This
kind of “error”, which always favours privatisation of the public
domain, is the everyday reality for all authors who use YouTube.
And this isn’t just about the “errors” that lead to
the privatisation of the public domain. It is about the difficulty or
impossibility of uploading on the Internet any kind of derivative work:
parodies, memes, remixes, fandom, satires, and so on or, in other words,
the very essence of culture, political freedom and freedom of
expression.
Repeating the Medieval Experience of the Invention of the Printing Press
This whole setup, which looks like a science-fiction
dystopia, an impossible attempt to lock the doors when the horse has
bolted, or an exaggeratedly grim prophecy being spread by concerned
activists, is already being implemented today on big platforms.
At present, there are two options:
The Spotify model
In this case, the platform would
acquire all national and international licences and then make all
contents available unidirectionally in such a way that users can’t
upload content. Even so, in the case of Spotify, one of the few giants
with the resources to do this today, paying the copyright monopolies has
raised its overheads so much that, despite its commercial success, its
medium-term sustainability isn’t guaranteed. If this is the situation of
Spotify, it’s not difficult to imagine what will happen to medium-sized
Internet companies.
This model has another defect which is obvious to
most artists. The amount of money the real authors receive in the end is
zero or almost zero. The amount of money the real authors receive in
the end is zero or almost zero.
TheFacebook/Google model
These new Internet monopolies refuse to share the
cake with the old copyright monopolies and therefore opt for
large-scale, automatic filtering of all content. They will find it
easier to adapt to Article 13 since now they will only need to apply the
filtering mechanisms before uploading takes place.
This technology, besides being opaque and exclusive,
is very expensive. Since it will be obligatory, it will also mean that
these giants are very unlikely to have competitors that have any chance
of prospering.
Google has spent approximately 100 million dollars
to create the technology that has so far enabled it to respond to
copyright claims coming in from only 1% of its users.
The effect which these arbitrary regulations will
have on free Internet conversation, on diffusion of culture and
information, and access to them will be devastating.
