Keepers of the Copyright

If you’ve had your eyes on the internet over the past few weeks, you’ve probably noticed that not all is well in the kingdom of YouTube. The site has a thriving community of people who post and earn money from video reviews, let’s plays, and other content which combines video game footage with their own personal commentary, but these people are now having their videos hit with copyright claims from companies on a massive scale in what many are seeing as unfair and damaging attacks on content creators. It’s been excellent to see so much awareness being drawn to what I think is an issue that really needs it, but I still believe there’s more room to voice the details and implications of the whole situation, so let’s start from the beginning.

The Networks

One of the most recognisable examples of an MCN.

Caught up in the middle of this chaos are the groups known as MCNs or Multi-Channel Networks. For years YouTube users have been able to partner with YouTube and monetise their videos by attaching Google ads to them, but MCNs offer those looking to monetise their content a little bit more. They essentially sell themselves as managers for YouTubers, promising to help users grow their channels and provide other benefits in exchange for a cut of the user’s ad revenue, and so many of the YouTube channels producing video game content today exist under MCNs. MCNs have, or in some ways had, a secondary job though. When a video uploaded by a user under an MCN violated a copyright, they weren’t directly called up for it by YouTube like other users, instead the MCN was held accountable for that violation, and it was their job to police and handle the users under them breaking copyright. Recently however, something changed. The channels under MCNs were split up into two groups: managed partners and affiliate partners.

Managed partners are treated exactly as channels under MCNs always were, with the networks being responsible for managing their co-operation with copyright law, but the affiliate partners are fair game for YouTube to directly slam copyright claims down on, just like anyone else monetising their videos. Following the split, YouTube’s Content ID system kicked into gear and detecting copyrighted video game footage and sound in thousands of affiliate partners’ videos started handing out copyright claims right, left, and centre. The popular theory is that the split that triggered all this came about because the MCNs weren’t actually doing their job when it came to preventing the channels under them breaching copyright and so this was YouTube’s solution.

Implications

The really scary thing is that while this change has brought a flood of unfair copyright claims along in a short space of time, really all that’s happening here is affiliate partners are having to deal with what everybody monetising their videos independently have been dealing with for much longer. Even more worryingly, all of this is happening in the context of the much larger ongoing battle between smaller content creators, consumers, and distributors on the internet, and many of the larger companies who could potentially restrict their freedoms. What’s happened on YouTube sets a disturbing precedent for the way content creators can be treated online and shows that even somewhere as powerful and previously free from this kind of meddling as YouTube still isn’t safe.

There are some grey areas, but even then it's pretty loose.

To be fair, there can be some grey areas when it comes to video game copyrights. I do think there’s a fair argument to be had over whether copyright claims should be made against videos that only consist of cutscenes without any kind of commentary, or videos that just feature extremely linear, pre-scripted game sections like the quick-time events of Heavy Rain, again, providing there is no commentary. However, before any hard claims can be made against even those kinds of videos, there should need to be a discussion that includes both the big companies and the smaller content creators, and it should have to culminate in a clear explanation of why YouTube are making the decisions they are. In reality, we’ve seen neither of those things happen, and here we’re not just talking about cutscene compilations and the like, we’re talking about videos that are clearly transformative works and are providing commentary and criticism over gameplay, but are being called up based on as little as 5 seconds of footage or sound being taken from a copyrighted source. This is just not okay. I’ve heard plenty of arguments that the Fair Use policies that have traditionally protected this kind of content are murky territory and that Google can legally do what they want with their own privately owned website, and both of those things are true, but even if this is all 100% legal, that doesn’t dispel the criticisms that by YouTube running this way a poor service is being provided and that the nature of game criticism and entertainment on the internet is being damaged.

A Broken System

Computer algorithms aren’t nearly advanced enough to make judgements about whether copyright claims are reasonable or not and are no substitute for real human beings. In the worst cases we’ve seen people being flagged for copyright infringement even when they’ve owned the rights to the flagged material or have had permission to use it, and people who weren’t the rights holders having been able to make false claims on videos. Whenever someone does get called up for violation the system assumes them guilty until proven innocent and in instances where people do have a chance of getting their videos reinstated, they may have to wait lengthy periods of time to be processed, during which they can earn no revenue from their flagged content. Users are also subject to monetisation reviews which run into the same problems, with the slight difference that it’s not just videos they can’t make revenue from while they’re being checked, but their entire channel.

Over on the other side of these scuffles the people and groups making claims of copyrighted content being used in videos can be given 100% of the revenue from them. This means it actually benefits the big companies to have a broken system that disadvantages YouTube’s users and that even when someone goes to the hard work of making a video, for example, forty minutes long, just a few seconds of a cinematic here or a soundtrack there can mean that all their hard work will go to profiting some sort of external entity. But wait, it gets worse. Because it’s affiliate partners and independent users being struck with this stuff instead of managed partners, it means many of the more established and financially secure video game YouTubers out there are fine, while it’s really the little guys who are getting screwed. Keep in mind that YouTube is a source of income for these people and for some YouTubers is part of the way they’re putting food on their tables in the evenings.

Things on YouTube are bad, but I think some people are misplacing the blame.

Don’t get me wrong, working out who is to blame here isn’t simple. While there are many companies that I’m sure are happy to be able to make claims on thousands of videos and profit from them, there are also content creators who have said they’ve not actively tried to initiate any content claims and don’t want their content claimed, but have found it happening anyway. Copyright law is also written in such a way that if companies don’t make claims on every infringement on their work, it can weaken their position in future copyright disputes, so you end up with copyright claims like these essentially being made in self-defence even if the people they’re claiming against aren’t actually a direct threat. It might seem like the obvious answer to blame YouTube themselves for building a shoddy system, but while I do think they’ve handled this situation poorly, it’s probably impossible for them to moderate all the content on the site by hand, and their actions are likely in part to do with the possibility that they could be sued for hosting copyrighted content again if they’re not vigilant about taking action against anything that has the vague possibility of being used against them in court.

Jumping Ship

It’s easy to think of YouTube as “just one site”, but when they basically hold a monopoly over the video hosting game and 1 in 7 people on the planet visit YouTube every month, that means what happens on that site affects a hell of a lot of content producers and creators, and can set a standard. There’s been a fair bit of chatter about how those who host their content on YouTube can just move to a different service or how someone will come up with a website to rival YouTube, and while those are both valid points, those solutions are fraught with more problems than are being acknowledged. When you have those numbers of people visiting YouTube to begin with and when YouTube is where everyone is watching these personalities, content creators risk splitting their fanbase, dropping considerable numbers of viewers, and limiting their discoverability by jumping to another platform.

There’s also nothing else exactly like YouTube out there at the moment, so when people start hosting their videos elsewhere they lose the features and tools that YouTube provides its content creators and audience. For example, the most commonly recommended site for games-focused YouTubers to move to right now seems to be Twitch, but that doesn’t really make sense as Twitch doesn’t support direct video uploads and most of the people interested purely in streaming games seem to be there already. Even if content producers did manage to get onto a new video hosting site with everything they needed and as many viewers and as much discoverability as they got on YouTube, how is this new site going to properly check all its videos for copyrighted content when YouTube couldn’t? And what’s to stop it having to put its boot down on its users because it’s scared of being sued or shut down like so many other online hosting services?

Changing Things

This continues to be broken.

There’s no quick-fix solution for this problem, but a lot of this comes back to the point that copyright law, especially in the U.S., desperately needs reform. The laws on copyright come from a different time when things like video games and Let’s Plays and digital distribution didn’t exist, and are not equipped to deal with the modern realities of media. They encourage companies to be far too severe in what they make copyright claims against, and the “Fair Use” laws which have been there to guard those who want to create transformative works have always been a nebulous and too often flimsy means of protection for freedom of speech and expression.

Honestly, I’m not holding my breath that things are going to get any better without some serious legal changes, but if they do it’ll happen when people displeased with what’s happening on YouTube start jumping to other sites and when video hosting sites that can genuinely rival YouTube start to spring up. And hey, maybe there’s some chance that if enough of us kick up a fuss about the way that content creators are being treated, some of these companies somewhere along the line will start paying attention. Thanks for reading.

3 Comments
3 Comments
Edited by Sergio

I think you've only outlined what has happened on Youtube. In no way have you demonstrated that copyright law needs to change, specifically when it comes to fair use and gameplay videos on Youtube, since this doesn't enter the realm of discussing the length of copyrights. Just because people can't monetize their Let's Play videos doesn't mean a change is needed.

I'd argue that the inclusion of digital distribution makes enforcing fair use more important now more than ever since it's easier and cheaper to infringe on people's copyrights than before. If you want to infringe on a book's copyright, buying a printer and/or scanner and paper is more work than just uploading a text or pdf file now. You don't need to buy cassettes, CDs, or any other physical media to copy music, movies, or television shows now, you just upload it using whatever encoding scheme you want. I'm not making an argument for the DMCA or DRM, but on fair use and copyright infringement.

Using commentary as a reason for these videos being classified as transformative instead of derivative works doesn't fly in the face of logic. You cannot add your own commentary to a movie, television show, or even sporting event while performing the entire thing for monetary purposes. You cannot include an entire book with your CliffsNotes and sell it, or even sell your own audiobook of you reading the book. Talking over your gaming video doesn't automatically qualify it as transformative as much as some people would like to claim.

Posted by IcyEyes

Doesn't this all really come down to what exactly is "fair use" when it comes to using copyrighted content? For example: Is it fair to let other people make money from your content (without your permission) even if they put a lot of work into it? Is making money from a video of you playing a game the same as you selling pirated copies of that game? It does feel like the laws need some reforming, but it will always be a tricky area and open to legal interpretations.

Edited by bgdiner

As much as I'm inclined to agree that Youtubers should be protected full-stop (not your point exactly, but a position I feel many in the community support), I feel that this would be a biased decision.

Don't get me wrong--I love the content that Let's-Players create, and I can't say that I haven't spent many an hour--hell, even a day--watching their content. That said, I do find it a bit hard to justify paying these personalities for every video they produce. I think the concept of Let's Play is great in theory, but I think once you start introducing money into the equation, something gets lost. Suddenly there's an incentive--and I'm not incriminating anyone here-- to make videos for the sake of money, rather than hobby.

This is in part due to Youtube's ad system, of course. If I understand correctly, if there weren't ads on Youtube, then there wouldn't be this problem. I recognize that this keeps Youtube in business, and able to host the videos that we consume on a daily basis, but it arguably introduces a whole lot of problems. Maybe it's an idealistic vision, but if Youtube was, like it was in the early days, a free and non-monetized system of uploading and viewing videos, then we wouldn't have some of the crap on Youtube, and everyone would create videos for the sake of instruction and entertainment.

But, I'm rambling. Clearly there is a more salient issue to deal with, and Youtubers may have to deal with the cards they've been dealt. Anyhoo, great read.