I had originally planned on making this a video post. I thought it might be interesting to discuss how media portrayals of crime have changed, using a video of Rockstar Game’s Grand Theft Auto V to ground my commentary. However, when I uploaded the video to YouTube, it got flagged for copyright infringement by YouTube’s Content ID system. Surprisingly, it was not any claim by Rockstar Games; instead, it was a series of claims by companies representing the Sonny Rollins Quartet, claiming that the video I uploaded contained the group’s song, St. Thomas.

Okay, that didn’t happen to me. But it did happen to YouTube user Taltigot, even though his video didn’t contain the copyrighted song. And it highlights some of the many problems that have recently arisen regarding YouTube’s Content ID system, particularly with videos of video game play (such as Let’s Play videos).

First, as with the phantom St. Thomas video, the Content ID system, which is fully automated, often struggles to identify infringing and non-infringing material. When an uploaded video uses material in the public domain or attempts to make fair use of copyrighted material, the system has even more trouble differentiating what is infringing material and what isn’t. For example, last month a video using the song Silent Night — which was composed in 1818 and is in the public domain — was hit with multiple copyright claims. As a result, the creator of the video has seen advertising revenue from his video tied up thanks to YouTube’s monetization policy, which allows copyright holders to take revenue from videos that use their work.

However, what has really drawn the ire of YouTube users is that videos have been flagged even though the rights holders either A) have given permission for the use of their work or B) the rights holders do not want to enforce their rights against the video. For example, several Let’s Play videos have been flagged for the background music in the games themselves; however, the rights holders for the songs have already consented to their music being used in Let’s Play videos when they licensed the songs to the video game publisher. Other times, over-zealous rights management companies have actually flagged rights holders for infringing on their own rights (and yes, somewhere John Fogerty is shaking his head sadly).

The fascinating part about this entire story is that none of it reflects actual copyright law. Instead, it represents a low-cost attempt by YouTube to protect itself from liability and a change in certain rights management companies’ terms of service (see this article for more on how changes in terms of service have affected copyright enforcement). In effect, a blunt policy by YouTube and troll-like behavior by copyright management companies have led to news articles being taken down and a suppression of creativity. And while it might be easy to dismiss this issue as a niche concern affecting only people who know the Konami Code, Sony and Microsoft built their next generation consoles around letting players uploading videos quickly and easily. Competitive gaming leagues have seen annual revenues of $20 million. And for those who could not care less about video games, Content ID could discourage people from making or uploading the next Harlem Shake.

The question for the law is whether this represents a breakdown in copyright policy and what to do to fix it. Should the law provide more protections to YouTube, thus negating the need for an automated Content ID system? Should rights management companies be prevented from slipping major changes – like adding YouTube monetization policies – in routine terms of service updates? Have we allowed traditional safeguards like fair use to disappear through the use of automated systems? Share your thoughts in the comments.

Jacob Marshall

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