There can be no doubt that I am an utter fan of YouTube and its personalities. Also, there can be no doubt that YouTube had a 2016 full of problems. YouTube, through YouTube Rewind, will tell you how this has been a great, wonderful, super-fantastic year and have some YouTube celebrities run around and do goofy things. YouTube’s trials and tribulations seemed to have been glossed over. Instead of whitewashing the past year, I wanted to take a look at some of the real stories of the past year….many that don’t put YouTube in such a wonderful light.
Content ID has had its share of hate this past year, all deserved. Content ID is a pretty broken system, and the extent of its brokenness was really emphasized this year in particular. The amount of cases that sprouted up involving someone original content being appropriated by some weird third-world company who runs it through Content ID and claims it as their own is staggering. Now, it wasn’t only weird companies, this tactic was accomplished by individuals as well. For example, recently, a film critic did a breakdown of a Star Wars movie, put it into Content ID and then started claiming videos with Star Wars in it saying he was the owner of the copyright to the film. WTF??
YouTube tried to combat this with their November 1st implementation of the “escrow” solution as I call it. Previously, when a third party claimed a video via Content ID, the third party was able monetize the claimed video and earn money on it during the dispute process. Now, the money that would have previously been given directly to the third party is held in escrow until the dispute process has concluded. Is this a step forward? Yes. Is this a solution? No, emphatically no. The money earned during the dispute process wasn’t really the problem to begin with. Consider what YouTube did to be the equivalent of putting a Band-Aid on a laceration that requires 100 stitches. Sure, it stops a little bleeding, but not all of it and certainly not for good. The kicker about the new “escrow” system is that most of the time creators who have their videos claimed via Content ID DO NOT end up winning the dispute process in the end. I don’t know the exact metric for wins/losses, but from my experience it’s not good. The problem is that the dispute review process is ambiguous and likely not thorough enough. Although Content ID is a bit of a mess, there is so much room for improvement and it will continue to be a valuable asset to copyright holders. YouTube just has to get it right, whether it’s improving the algorithm or hiring qualified copyright attorneys to review the disputes…or both, they should just do both.
So Many False DMCA Takedown Notices…and Lawsuits
Content ID’s older and uglier cousin, the DMCA takedown notice, was in rare form this year as well. The way DMCA takedown notices work is that the claimant will send a notice to YouTube indicating that somebody is infringing on their copyrighted work, YouTube, in order to stay within the safe harbor provision, must remove the content. The person who had their video claimed can counterclaim the notice and YouTube must re-upload the video “not lets than 10 nor more than 14, business days following receipt of the counter notice, unless its designated agent first receives notice from the person who submitted the notification under subsection (c)(1)(C) that such person has filed an action seeking a court order to restrain the subscriber from engaging in infringing activity relating to the material on the service provider’s system or network.”
This is all well and good, but the fact of the matter is that many of the people submitting the takedown notices bypass the language that YouTube (and the law) provides indicating that they are submitting the notice “in good faith” and are not misrepresenting themselves. People are submitting takedowns for all sorts of evil purposes like to stop criticism of someone else’s work, to keep down a competitor and, well, because they got butt-hurt when they were criticized.
This year, the fight back against this awful process began. We saw such channels as The Bible Reloaded file lawsuits when their content was taken down and for 2017 I see a lot more of these lawsuits coming. (I might have some inside info there.)
Kids are Gambling on CS:GO Cause YouTubers Told Them To
The story of the summer was CS:GO gambling and the people behind it. You all know the situation here: YouTubers own a CS:GO gambling site, they get on their IMMENSELY popular YouTube channels and spew nonsense about how they “found this cool site,” and never disclose that they are owners of the site. These are clear FTC violations and you can read about those rules here.
This is a situation that, although is in a bit of a lull in terms of publicity, should crop back up very soon. YouTube does not want people using their site to violate any FTC or Lanham Act regulations, that’s a really bad look for them. Internet gambling itself is in a state of flux, legal in some states and not legal in others, and some just don’t even acknowledge its existence. Some lawsuits have begun over this situation and I see more lawsuits and possible criminal action in the future.
The “Sub-Loss Glitch”…or Not?
Yes, the “sub-loss glitch” that Keemstar has made everyone on YouTube ever so aware of. Is this Google secretly deleting inactive YouTube accounts? Is it a wonky algorithm that targets specific creators only to promote others? Is YouTube really just un-subbing people from certain channels? It seems to be an amalgamation of everything. There does seem to be evidence of Google/YouTube deleting inactive accounts, but that alone wouldn’t cause the outrage that we’ve seen recently. That’s because YouTube has begun promoting certain YouTube channels and videos. Videos that are more heavily marketed by YouTube generally include UBER-active creators and movie trailers. Basically videos that they can milk a bunch of ad revenue from. Also, I will say, that I was indeed un-subbed from a few channels that I know I didn’t un-sub from. Is this an algorithm at work? Nobody knows really and YouTube sure is holding their cards close to their vest. For now, creators need to try to remain calm until we get some sort of an answer from YouTube
Be a Rat with YouTube Heroes
This was the brilliant idea to award brownie points to users who flag other people’s content….oh that isn’t full with issues as we have seen above. Giving people the ability to accrue “points” for flagging inappropriate videos??? Hi, YouTube, this is the internet, are you new here? In my mind this is just a cog in the wheel of YouTube’s quest to make the site as vanilla and safe as possible. I understand the need for the flagging of inappropriate content but just leave it at that. That type of autonomy is what has made the internet what it is today. The second you start encouraging the flagging and censorship of videos by awarding points, all of that autonomy and trust goes right out the window. Whether sentiment here was to encourage more interaction on the YouTube platform, or lighten the load of YouTube employees, what Heroes DID do was create an immense amount of hate and backlash at a time when YouTube really needed the opposite. Call it poor timing or a bad idea…or call it both.
(Demon)itization of Dirty Word Videos
Over the summer we saw a litany of content creators hitting Twitter complaining of demonetization for videos that were “adult” in nature. The cause for all of the mayhem is still a bit unclear. YouTube still claims that no changes were made to their terms of service or policy regarding ad friendly content, only that their notification and appeal process for demonetization had been improved. This left everybody asking questions: Does this mean you haven’t been notifying us when you demonetize our videos? How do you explain the uptick in demonetization of videos? How do you explain the ambiguous language in the ad friendly content policy? The only one of those with an answer is the first and that answer is YES. YouTube had previously been keeping creators in the dark about demonetization, which is a bad thing. So, yes, YouTube started notifying people of the demonetization, but is that the only reason for the uptick in creators experiencing this? Nobody knows really. This raises two major issues: (1) YouTube is using the notification and appeal improvement to mask the fact that they have started to really single out and target content they don’t like, and they are using the ambiguous language of the ad friendly content policy to do this; (2) The demonetization issue was so large an issue when creators were not being notified as to cause this uproar. Both issues are troubling and remain unanswered.
Fine Bros. Try to Trademark “React” and the World Gets Angry
Remember this silliness. The Fine Bros. filed for a trademark to REACT and before the registration was even complete made a video telling the world about it. The reaction was not pretty and angry mad its way to the front page on Reddit. Thankfully the Fine Bros. walked away from this attempt and life went back to normal.
Fair Use Fights
Here we go with “react” again. Reaction videos lead to many big YouTube beefs over improper take downs and even a very big lawsuit on the issue of fair use. It got to the good point where Youtube even started considering fair use instead of just taken down claimed videos…good job. (See, I’m not all about hate this year)
The MCNs with the Shadiest Business Practices Ever
The complaints and nasty letters I have sent out this year are in large part due to MCNs and their business practices. MCNs, Multi-Channel Networks, help to grow the channels they represent and create licensing deals for their content creators. Did you see the term “steal money” anywhere in that description? No? Well that’s what some of these networks do to unsuspecting content creators. Whether its locking creators into 50/50 revenue splits, after promising them 90/10, or locking them into 5 year contracts…or locking them into a contract when they advertise that they don’t use “lock-in contracts.” I’ve seen it all this year pretty much. Some of these MCNs have a very weird vibe to them, their owners and operators are responsive and active on social media, but behind the scenes they don’t contact their creators or mistreat/misrepresent them. It’s truly awful some of the business practices going on in this arena. But, because it’s a fairly new space, it all should work itself out eventually. The predatory MCNs won’t be able to compete once the legitimate ones find ways to incorporate micro-creators at reasonable revenue splits that work for both parties. Until then, watch out. Some MCNs are thirsty for blood and won’t hesitate to bleed you dry then leave you hanging in the wind. It’s a helpless feeling that no content creator should ever feel, and I hope to put an end to that.
So cheers to a great (?) 2016 and let’s hope 2017 is just as fun!
Thanks so much to my YouTube recapper, Martin Passante, for helping me remember what happened this past year…after April everything was a blur. Martin is a 2L at Brooklyn Law School. Martin focuses his studies in intellectual property, entertainment, and copyright law especially in the world of YouTube.