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.


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