#WTFU, A.K.A. The Fair Use Dilemma

In February 2016, Youtube content creator Nostalgia Critic released a new video, titled “Where’s The Fair Use?,” in which he explained his recent troubles with the automated copyright system employed by Youtube, and how potentially destructive it can be to anyone who bases their livelihood on content shared via Google’s platform. The video soon gained traction on social media, quickly becoming the most popular publication on his (at the time already very much relevant) channel with over 1.5 million views. It also resulted in multiple follow-up videos by other influential Youtube personalities echoing his statements, as well as #WTFU campaign conducted primarily by their audience. Thus, for the next few days, the issue of Youtube’s copyright policy became the next big topic in Internet-related discourse.

The Youtube copyright policy is a largely automated system, which in theory is designed to help the rightful owners of a copyrighted material claim their content from channels which use it without permission, thus breaking the law. The owners can, then, either upload a sample of their property for the system to detect and disable its illegal copies automatically, or claim ownership manually and either have the illegal video taken down, or keep it as it is, but have all the monetization redirected to the copyright owner.

(Image source: https://www.eff.org/issues/intellectual-property/guide-to-youtube-removals)

While the system sounds good on paper, its one major flaw is the human factor: it gives by design all the power to the copyright holders, either actual or alleged ones, trusting that they would use it appropriately and responsibly. This, however, is realistically not the case, as channels that produce videos that include any kind of audiovisual material – be it videos, music, or gameplay footage – receive takedown notifications from trigger-happy companies on a daily basis. The ease of issuing copyright strikes, coupled with Youtube’s “guilty until proven innocent” approach to content creators, lead to a very unstable environment for the latter – 3 takedown requests, legitimate or not, may result in permanent closure of an entire channel. It is, then, the creators’ burden to prove their innocence at every single occasion, while the ones requesting a takedown are not really held to any responsibility.

The key term to understanding the situation is the American doctrine of fair use, which, because Google is based in the US, applies to all Youtube content creators regardless of their nationality. In essence, the law permits a limited use of otherwise copyrighted material for “transformative” purposes such as commentary, criticism, parody, and education – thus effectively serving as the foundation for almost every single “informative” channel that builds their original work on top of recycled content produced by someone else. The copyright holders, however, seem to have very little regard for the law, abusing the system to earn a quick buck or, more maliciously,  silence negative criticism of their products – very clearly falling under the fair use law. And while more known channels are capable of fighting such claims and bringing the videos back, for smaller ones they might mean the end of their Youtube career.

Nostalgia Critic’s problems described in the influential video have provoked the subsequent debate and activism two months ago, but the phenomenon itself is by no means recent. The most publicized case of this nature dates all the way back to October 2013 and the dispute between gaming pundit Totalbiscuit and an indie developer who used the same means to censor the criticism of their subpar work. The video describing the situation is once again the most popular piece of content on the respective channel, currently sitting at little under 5 million views. It points to the exact same issues that Nostalgia Critic et al. describe almost 3 years later, suggesting that not much, if anything, has changed during the time.

On the other side of today’s spectrum is a curious, fairly recent phenomenon of “reaction” personalities, a kind of meta-Youtubers. They tend to build their unexplainably popular acts around the idea of playing videos from other channels, often in their entirety, and filming themselves “react” in real time to said works – sometimes with as little as just facial expressions.

As playing the original video on the “reacter’s” channel effectively denies any revenue from the original creator, and the act of reacting is arguably hardly “transformatory” to the work itself, a strong argument could be made that these are the type of videos that would not not fall under the fair use doctrine. Thus, these channels should probably not be allowed to take advantage of other people’s work. Despite several prominent personalities’ attempts at raising awareness of the problem, however, successful copyright strikes against these channels are virtually unheard of. The cynical (and not necessarily untrue) explanation is that due to the fact that the abused side in this case are not big companies, but usually one-man creators. Hence, Youtube management has very little incentive to fight for their rights, as the massive popularity of reaction videos brings the service too much ad revenue to pass on.

The current situation is perhaps best summed up by paraphrasing Drew Carey’s famous one-liner from Whose Line Is It Anyway?: The rules are made up, and the law doesn’t matter. Whichever way the misuse of copyright goes, however, it always seems to hurt the most the passion projects of small channels that helped build the community from the ground up when the platform first emerged. This is, then, not simply a sad state of affairs in and of itself, but also as relevant of a topic to the concept of digital culture as it can possibly get.

As there is much more to the issue than just the fair use dilemma, in the next posts the project will explore more in-depth the puzzling sphere of Youtube’s copyright policies, their basis in US law, where they have historically succeeded and failed, and what their future might bring.

Update: Shortly after the post was published, Youtube announced a much welcome change to how copyright infringment claims will be handled in the future. Instead of transferring all the revenue to the claimant immeidately, it will now keep the video monetized, but without actually paying either side untill the claim is resolved – thus enforcing a layer of protection for channels who might have been hit with an unlawful strike.

The Many Faces of Copyright, Pt. 1: Video Content

The issue of copyright has, to a greater or lesser extent, been a problem of Youtube’s from the very beginning. It seems strange, then, that after over 10 years of functioning, it is still nowhere near a state that would be satisfactory both for the largely amateur content producers and for the biggest players on the market. One of the main reasons for this state of affairs is the fact that while the service deals solely with video content, it still means that it encompasses a large number of different industries and forms of intellectual property, each one with their own approach to protecting it. This, in turn, makes the process of coming up with a coherent, site-wide set of policies extremely difficult.

As Youtube serves primarily as a hub for sharing video content, it makes sense that the movie/TV industry has always been the loudest voice against piracy on the website, as it is simply the most obvious victim of illegal activity. This area is also probably the most straightforward in terms of determining what counts as a copyright violation – the distinction between pirated, unaltered footage and transformative content is in most cases rather obvious.

During its first few years, the website was not of much help in trying to fight illegal copies: major full movies and TV shows were easy to find in their entirety – split in 10 minute-long parts and in questionable quality, but still watchable. Without today’s Content ID matching system, the only real way of finding such pirated copies was manual search, therefore simply naming the pirated content more cryptically was a safe bet at ensuring it would stay up for a long time.

A major change came with the introduction of the automated ID system in the early 2010s, forcing the pirates to be somewhat more creative. As in its early form the algorithm was based primarily on image, a new phenomenon of mirrored (flipped along one of vertical edges) copyrighted content emerged. While to a viewer who has not seen the production before, such videos looked absolutely fine, they completely confused the image matching system, making them almost immune to automated takedowns.

 

In the same vein, videos of brand new releases, recorded by camera in cinemas became another way of tricking the system for two major reasons. Firstly, such releases were likely not yet added to the Youtube database, thus having no original to match the pirated copy to. Secondly, even if they already did, the colors and frame composition recorded by the amateur camera were so off that they were very likely to not be recognized.

Later, however, the automated system largely moved to detecting audio – much less reliant on quality to work properly, assuming no major changes are made. For the most part, this has succeeded in eliminating such problems, solving the piracy problem almost completely – as long as the publishers provide a sample. Apart from some isolated incidents in 2013, major pirated movies on Youtube are currently virtually unheard of. The system, however, is by no means perfect, as the side effects of sometimes being overeager with taking down legitimate content continue to be a massive nuisance to the creators. 

Interestingly, the movie industry seems to have realized the medium’s potential in the last few years, as multiple producers/publishers started running channels dedicated to publishing legally and in good quality their older, no longer profitable productions. While finding a movie more recent than ~1970s on those channels is currently almost impossible, it still seems to be a step in the right direction and a sign that the industry is not completely out of touch with today’s culture of sharing.

The Many Faces of Copyright, Pt.2: Music

The case of movies and TV shows is rather simple because the industry can be treated as one entity – while there are several major studios and publishers, they tend to share very similar approaches and practices. And since almost every single relevant production comes from them, these few companies can reliably serve as representative of their industry. This is not, however, the case in music, where the distinction between mainstream and indie is much more pronounced and relevant.

The former has traditionally been very hostile toward all kinds of online sharing, even before the era of Youtube – with the famous 2000 court case of Metallica vs. Napster being probably the best known example. Such approach largely carried on to Youtube, with major labels aggressively protecting their artists: in the case of a song being published by itself over a static image simply taking the video down, and when it was used as background for original content, by muting the video. A very unified strategy for major mainstream labels emerged with the entrance of VEVO to the service in 2009, moving nearly all popular artists’ videos onto VEVO-branded channels and strictly controlling what part of a given album is available on Youtube, and what needs to be paid for.

In terms of the presence of copyrighted material on the service, the case is somewhat peculiar. On the one hand, because content ID matching is much easier and more reliable for audio than is it for video content, publishing the property of major labels without altering the songs in a major way is close to impossible. This, in practice, makes the VEVO-branded channels the only real source of mainstream music on Youtube. On the other hand, though, while it is difficult to pirate songs into the service, it is incredibly easy to do it from it, through various methods of audio ripping. As the practice is very popular, it puts the industry in a paradoxical situation where the hit singles meant to serve as advertisements for the whole album end up stolen, and the whole package largely ignored.

While the mainstream is a very cohesive, controlled environment, the indie scene on Youtube is more of an anarchy. With thousands of different labels and even more self-releasing artists, each one with their own marketing strategy, the scene is almost impossible to consider as a whole. Still, there are some major characteristics shared by a large majority.

For the most part, the indie part of Youtube music community seems to be more aware and appreciative of the discoverability that comes with the platform, realizing that in order to make money, first they need to establish an audience. Hence, those artists, often virtually unknown outside of a very small circle, will either publish all their music themselves, or thank those who did it rather than try to take it down. Such healthy relationship between the artists and the listeners allows for the existence of unmonetized passion project channels that specialize in posting new releases in a given obscure subgenre, including all the relevant links to support the artist – often providing the visibility crucial for a band to make a name for themselves. (Specimen #1, Specimen #2, Specimen #3) The relationship, then, seems to be mutually beneficial – the listeners get their free music, the artists get their exposure. It also appears to be more healthy in purely artistic terms, as the success or failure of a given project is more about the actual quality of their music than is is about millions spent on marketing.

 

The Many Faces of Copyright, Pt.3: Gaming

The case of gaming content on Youtube is an entirely different story, having almost nothing in common with the two previously discussed industries. The main reason for this is the fact that the phenomenon is very recent, having taken off in a major way only a few years ago. Thus, there are no relevant laws nor court precedents to determine what copyright means in this particular case, leaving it subject to interpretation between the developers/publishers, content creators, as well as Youtube, making the copyright issue a very much gray area. Here raise several questions that do not necessarily have a one proper answer thus far.

What elements of a game count as copyrighted material?

Some of them are quite obvious, due to their roots in traditional, non-interactive media: for instance the game’s soundtrack, or the cut-scenes are clearly copyrighted. The problems emerge when it comes to the more interactive elements of the gameplay itself. Taking, for instance, an entire level or a character model from one game and without permission putting it in another is obviously a copyright infringement, but is making a fan video that uses some of them illegal as well? What about pure gameplay footage? Do the producers own the rights to the files, or to the way that they appear on screen, regardless of player input – often crucial to how the game is presented? How does the Fair Use apply to all of this? There seem to be no concrete answers to any of these, leaving the issues mostly open to interpretation – which in the worst case scenario could lead to making the creation of gaming videos virtually impossible.

Can this vary based on differences in genres?

With the recent explosion in popularity of “let’s play” channels which publish commentated playthroughs of games in their entirety, an argument can be made that they can have a very different impact on various types of games.

As more and more attention tends to paid to the narrative aspect of games rather than pure gameplay, many recent productions have become more like interactive movies with only very basic level of player input. One might argue that in case of such productions, watching a let’s play can provide almost exactly the same experience as actually playing the game, thus potentially “stealing” the sales from its publisher: as the viewers are already satisfied with the game after watching it, they see not reason to buy and play it themselves. Such concerns have recently been raised by the developers of a somber indie game (or perhaps more appropriately, “interactive experience”) That Dragon, Cancer, causing a large amount of debate within the gaming community. In this case, stricter copyright policies could probably be beneficial for the publishers – but on the other hand, if a game can be experienced just as well without actually playing it, maybe it should not have been created as this kind of medium in the first place – thus shifting the blame back to the developers.

Competitive multiplayer productions, on the other hand, are likely to benefit from such videos. The way in which they play out is not determined by a carefully crafted narrative, but entirely up to the players’ individual skill and decisions on a match-by-match basis. Thus, every playthrough can be entirely unique, serving more as an encouragement for playing the game, and not a substitute. This point is emphasized by looking beyond one-man “let’s play” channels, and into huge Esports leagues that operate at a loss, serving primarily as an advertisement for the game itself.

Is the content primarily about the game, or the personality? 

This is perhaps the most difficult one, as strong cases for both approaches can be made. Large numbers of viewers who desperately search for footage of a new game the minute it releases are obviously more concerned about the production and not the player. Some “let’s play” channels, however, have a very large, loyal following of viewers who consume everything they produce, regardless of the game being played – treating their videos more like podcasts loosesly based around gaming footage, thus coming back clearly for the personality. This distinction makes the Fair Use question even more complicated. While some channels could probably keep going with just the lazy raw footage (probably best compared to previously discussed “reaction” videos), others are all about the commentary, making a strong case for the transformative nature of their content. 

This point is especially relevant not only to gaming videos, but to a very large portion of Youtube content in general, be it Minecraft let’s plays, Game of Thrones theories, cooking how-tos, or teenage girls’ vlogs. As such productions are predominantly amateur passion projects, they become centered around the creator’s personality much more than traditional media. This makes the distinction between the producer and the product very blurry, potentially making it problematic from the law’s standpoint, since the question of what is really the central point of given video becomes much less obvious.

How to approach it, then?

Various copyright holders in the gaming industry come up with very different answers to these questions, and consequently with different approaches to their games being played on Youtube. Interestingly, here the major line of difference is not AAA/indie as it was in music, but rather the West/East. Western publishers have for the most part grown to value the free publicity more than potential “lost” sales, either not interfering with the Youtube activity, or actively endorsing it – for instance by explicitly allowing such videos to be created in the EULA. Asian publishers, on the other hand, are still very hostile toward Youtube. They either aggressively take down all fan footage of their productions, or come up with draconian “deals” aimed at fans of their productions, in an attempt to make as much of a quick buck from the trend as they can. Such strategies, however, tend to backfire quite badly, making those publishers less and less relevant on the platform.

Now What?

Even though Youtube’s mechanisms of enforcing the copyright law are obviously far from perfect, the regulation itself seems to still be quite effective and relevant in case of the more traditional industries of music and film. While the digital revolution has brought countless innovations in how such content is created, delivered, and experienced, the premise of what counts as legal and illegal use remains largely unchanged. Therefore apart from the much needed improvements in practical application, not much change seems to be necessary in this area.

This is very much not the case when it comes to gaming content, quickly gaining more and more significance in Youtube environment – with a let’s player already being the most subscribed channel on the entire platform. If the gentlemen’s agreement described above is the only practically viable option of copyright enforcement, it is a clear sign that the US copyright law, after all, in its current state leaves a lot to be desired.

The rapid development of digital reality in the last two decades not only brought new technology to the old types of media, but more importantly spawned entirely new ones: let’s plays, podcasts, livestreams, critique, or reactions being only a few examples. While they differ in almost every possible aspect, the new kinds of mostly amateur-created media share two common, crucial characteristics: they rely heavily on intertextuality and in one or another way recycled media, and are predominantly personality-driven, making the content very difficult to separate from the creator. This means that they very much escape the traditional understanding of copyright, calling for the law to catch up with the times.

It is hardly a surprise, though, considering that the copyright legislation was last rewritten in 1976 – when the concept of household broadband Internet was still somewhat of a pipe dream. The last significant change was introduced in 1998, and judging through the perspective of today’s Youtube dilemma, it only made things worse, as this was the regulation which introduced the easily abused DMCA practice.

The need for change was already acknowledged by the director of US Copyright Office in 2013, who admitted that the DMCA project has largely failed. Her proposed improvements, however, were far from promising: she did not address the new problematic types of media, and instead focused on protecting the interests of conglomerate content creators, parotting the fallacious assumption that piracy directly translates into lost sales. Another somewhat notable proposition emerged in 2015, but once again it did not touch on Youtube’s grey area, and instead focused on monetization of the biggest music streaming services. In the end, though, the intentions did not even matter, as both proposals failed to gain any real traction.

It seems safe to assume that there is little hope for any real solution to the Youtube dilemma in terms of law. Even if the Copyright Office admits there is a problem, its sees the main victim in (presumably intensively lobbying) corporate producers, not the tiny amateur Youtubers – therefore completely missing the point of issues such as #WTFU. This leaves improving the dysfunctional system entirely in the hands of Youtube administration, torn between the interests of community that made the platform successful in the first place, and the advertisers whose money keeps it running. Their temporary solution is not so much changing the rules per se, but rather working toward minimizing the potential abuse by moving away from a fully automated system and introducing a human review board to the takedown process. There seems to be no visible improvements, though, considering that on a channel which was supposed to be one of the main examples of Youtube’s new fair use protection system, absurd situations like this can still happen.

Even though the issue is purposefully elevated to an extreme, is still serves as a very apt description of everything that is currently wrong with the system, proving Nostalgia Critic’s campaign very much justified. But as to who or how exactly should fix it, nobody really knows.