Tensions Boil Over Youtube's Content ID System and Fair Use

By: Daniel Imbellino
Feb 24, 2016

Content creators on the world's largest video sharing platform Youtube, have had enough with Google! a logo that reads fair use as shown on a wood boardThey're mad as a hell, and they won't back down! A recent video published by Boogie9288 (AKA Steven Williams) outlines the long growing animosity among the platforms vast array of talented content creators, with the video now topping over 350,000 views since just Feb the 18th. The video itself sports the hashtag #WTFU (Where's The Fair Use), with Boogie clearly expressing his disgust for how Google continuously shuts down his favorite channels, all while protecting only a handful of prominent content creators and networks on the platform. Boogie argues that Google has gone too far with its Content ID system, and how fair use is not being acknowledged as it should. So, the question remains, who will win the content ID war that now threatens to take down Google's massive video sharing enterprise?

A current search of "WTFU" returns over 51,000 possible search results! That's a lot of posts from Youtube creators in just a few short weeks. Youtuber's have clearly aligned in solidarity to speak out against Google and it's unfair policies.

For starters, a number of concerns outlined by Youtuber's are not without merit, with many channels citing the growing problem of fake content ID claims, which has already caused numerous channels to be shut down per Google's guidelines. With Youtube, it's 3 strikes and you're out, and unless you're PewDiePie, I don't think there's any real exceptions to be had. Those fake claims are typically intended to steal advertising revenue, and even when they're caught red handed, Google takes no action against these thieves, often allowing them to continue ruining peoples channels.

Our own gaming news brand, Gamers Bay, has had issues in the past with fake copyright claims on our videos, including one for a Capcom video, in which after contacting Capcom directly, they insisted they never flagged the video to begin with, they would take care of it, and they did.

The problem is, under Google's current guidelines, anyone can submit a false copyright claim, and until that false claim is resolved, a strike remains on the creators account, often leaving them suspended for long periods of time, and for no fault of their own. You see, simply submitting a copyright claim on a Youtube video is enough to instantly incur a strike, as Google has decided everyone is guilty until proven innocent.

Those fake copyright claims have caused many to have their accounts shut down entirely, and a single strike is enough for a given channel to lose its monetization as well.

Many of those channels getting hit with strikes just so happen to be gaming related, and this is where things really get tricky. Gaming channels insist they just want to make videos of their favorite games to share with the world, and that making such videos constitutes as free marketing for game publishers. On the other hand, many of the publishers insist Youtubers are violating their intellectual property by making such videos, or in some cases for attempting to monetize on them.

They also argue that their use of such games in videos constitutes as being fair use, and therefore does not infringe on the intellectual property of publishers.

To make things even more sticky, many publishers like Capcom and Ubisoft will allow content creators on platforms like Youtube to create derivative works of their games, but the rules bend wildly across publishers. For instance, Capcom allows creators to make videos of their games, but not to monetize on them, while other publishers like Ubisoft not only allow creators to produce videos, but to monetize on them as well.

The problem that arises here is that, often people will create videos only to realize 6 months or a year from now that their video has been flagged with a copyright claim, they've received a strike, yet after reading the publisher's documentation regarding derivative works, they had no reason to believe they were violating any copyrights in the process.

Despite the cries of angered Youtubers, the fact is copyright holders do have a right to decide who can use their content publically and commercially, that is aside from fair use. However, the real issue that lies at the heart of the problem actually has more to do with Google's own policies. For one, Google is a publicly traded company, they have investors they need to please, and they have a public image they're willing to fight to protect, and in order to protect that image, they must have a method of accountability for their users. Unfortunately, that accountability usually equates to shuttered Youtube accounts, suspensions, and the loss of privileges on the platform.

The real question is, when will Google wake up and realize humans aren't perfect? While I would agree there needs to be accountability somewhere, Google seriously should take a closer look at actual user intent when issuing penalties for copyright claims. While there's plenty of laws regarding the protections of intellectual property, Google is the one who decides it's users fate, not the law.

The Fight For Fair Use:

In the eyes of the law, Fair Use generally permits one to create limited works of copyrighted material for transformative purposes (commentaries, reviews, to stress an argument, etc). Technically speaking, the majority of gaming related videos on Youtube do in fact follow the laws regarding fair use since almost all of those videos only depict part of a game, or in some cases just a few images followed by a commentary.

The problem is, the fight between Fair Use and Copyright Infringement has long seen many battles within the legal system, and while Youtubers insist their work is of Fair Use, rights holders don't always agree, and often lawsuits start swinging as a result. In order to combat the threat of legal costs, Google spares itself by putting the accountability on the creators solely, rather than themselves.

It's stated in Youtube's current guidelines that content creators must attain permission of copyright holders before producing videos at all. This means if you plan to make a video of your latest gaming session in Left4Dead, you would need the publishers consent first before publishing anything.

On the other hand, the law states, Fair Use doesn't require the permission or acknowledgement of copyright holders in order to create derivative works, as long as the copy written content in question is used in a limited fashion, and this is just one area where Youtuber's insist Google has crossed the line.

All being said, while I totally agree there needs to be a system of accountability for those who violate Google's terms of service, as well as the legal rights of copyright holders, they should also acknowledge what the law states regarding Fair Use, and stop punishing people who play by the rules.

Also, while Google holds its content creators accountable for their actions, there appears to be zero accountability in regards to those who continue to blatantly issue fake copyright claims against Youtubers with the intent of stealing revenue by monetizing on others videos. Once a video is flagged, Google then transfers all revenue from that video to the claimant instantly, and even if the claim is later denied, they get to keep the money anyway. Also, channels can only contest 3 strikes at one time. So, if they're served with 5 copyright claims, they're given no way to contest all 5.

it's not just a flawed content ID system that is plaguing the platform today, but rather Google's policies for dealing with copyright claims, including how they decide to punish content producers for strikes against their accounts, which more often than not are made by crooks who just want to steal their hard earned money. Either way, just as Boogie stated himself, "Google, where's the Fair Use", as it's never existed in all his time on the platform.

Here's Boogie's Video on "Where's The Fair Use":

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