Terry Cavanagh is the designer of VVVVVV. He published a gameplay video of VVVVVV on his YouTube channel, and it was flagged with a copyright claim. Magnus Pålsson is the composer of VVVVVV’s music. He also started getting copyright notices about his own music on YouTube.

This is the height of absurdity, and underlines the crossroads YouTube faces when it comes to finding the line on a website built on monetizing user generated content and protecting copyright holders. Right now, it’s very clear which side YouTube is favoring.

The basic question facing YouTube right now is fair use. Fair use is what allows an individual or group to use copyrighted material in their own work. According to the US Copyright Office, that includes “criticism, comment, news reporting, teaching, scholarship, and research.” With games, we’re often talking about people playing games, recording themselves playing them, and putting those videos up on YouTube. Sometimes with commentary, sometimes without. But at its very base level, it’s the recording of playing a game.

On YouTube, these creators are on the defensive.

YouTube faces a dilemma. When Viacom sued YouTube back in 2007 for more than a billion dollars, it prompted the company to start down a road it has continued on ever since. Copyright holders hold immense power on YouTube, and YouTube bends to their will. If a copyright holder makes a claim, that claim is assumed true until it’s proven otherwise by the YouTube user. If a user is unable to prove it has a valid use of copyright, they earn a strike. Three strikes? Your account is gone. That means starting a new channel over from scratch.

Content ID, the system that’s caused recent headaches, is a system created by YouTube in which YouTube videos are matched against files submitted by copyright holders. If a match is found, the policy of the copyright holder is applied. There are three options: monetize (the holder can turn on ads), block (video may no longer be viewable or audio may be muted), and track (nothing changes, but stats are monitored).

The most recent changes to Content ID differentiate between “managed” and “affiliate” channels on YouTube. Managed channels have a deal with YouTube. Machinima is a good example. Most of Machinima is not impacted by these changes, and does not have to worry about Content ID. An affiliate channel is Ryan “Northernlion” Letourneau, who is now responding to individual copyright requests depriving him of revenue.

When a video is being disputed over copyright, it is no longer able to be monetized by the video creator. Every day counts. Why do you think game publications try to hit embargo times for game reviews? You're trying to capitalize on mass interest. It's traffic, and traffic is money. Missing even a day or two can be catastrophic.

Content ID’s an extension of this power for copyright holders, but it’s come with unintended consequences. One includes Let’s Play and other videos being flagged because those games, uh, have music. Soundtrack distribution and artist representation is often handled by companies other than the game publisher.

A closer look at the VVVVVV situation will illuminate what I mean by this.

Pålsson posts on Twitter about how he’s getting copyright noticed about his own material. How?

TuneCore is a service that helps artists sell their music on a variety of online shops, including iTunes, Amazon, Spotify, and most recently, YouTube. According to TuneCore’s website, TuneCore partners with INDMUSIC, an independent music network on YouTube.

“You're owed money every time people use your music in their YouTube videos,” reads TuneCore’s website. “We'll help you collect the most money from YouTube when you use TuneCore for publishing and distribution.”

In this deal, artists keep 90% of royalties from their compositions, 80% of royalties from music used in other people’s YouTube videos, and 100% of royalties from the artist's own YouTube channel.

That leads us to this response from TuneCore on Twitter.

In this humorous exchange, TuneCore is informing Pålsson that TuneCore is actually providing a service for him. TuneCore is serving these copyright notices to folks using his music, which also includes videos of VVVVVV that feature his music. It’s easy to see how this begins to spiral in a million different directions.

Unfortunately for TuneCore, Pålsson doesn’t see this as a service.

And this is where TuneCore becomes very, very confused.

TuneCore can’t imagine a world where Pålsson would want others to use his music freely, including making money off it, without his explicit permission every single time someone makes this decision. Yet for many, this is part of what makes YouTube powerful, a platform for people to share, create, and mix and match content. For America’s archaic copyright system, one that favors copyright holders, it leads to competing interests.

“I want to say that TuneCore isn't a villain,” said Pålsson during an email exchange last night. “I've used them for a long time and their service has been pretty dang good thus far. This problem is systematic and symptomatic of outdated copyright and licensing laws that have not adapted to today's interconnected internet lifestyle that you and I have grown accustomed to.”

Pålsson has since talked to TuneCore on the phone to express his problems. He was unaware TuneCore and INDMUSIC had rolled out an automatic identifier (this is the Content ID system) on his behalf, a notice representing Pålsson without Pålsson knowing it was happening. He had assumed this was an error, something he needed to be asked to opt in to, but that’s not the case, as it was part a publishing deal he already signed, albeit prior to TuneCore/INDMUSIC rolling into YouTube.

INDMUSIC CEO and co-founder Brandon Martinez pointed to a communication issue.

“With YouTube's new claims system, tons of channels that weren't previously subject to Content ID claims are now being hit with claims, both valid and invalid,” said Martinez. “INDMUSIC also recently partnered with TuneCore to manage their artists' rights on YouTube. Many of these artists are video game composers who have previously licensed or sold their music without communicating this to their Publisher, TuneCore. When TuneCore's content was uploaded to YouTube, no one was aware that so many channels would be affected because none of this information had been communicated.”

The solutions presented to Pålsson each have a number of drawbacks that don't sit well with him. He can create a whitelist for his content, a set of YouTube users who are allowed to monetize his compositions.

“This alternative will be quite troublesome for the guys doing letsplay videos and reviews etc,” he said. “It would also punish the developer who might not get their game reviewed because of the hassle involved with getting on whitelists.”

The next option is to opt out of the publishing part of his publishing agreement, but since there is no way to easily opt out of just YouTube, that means losing additional revenue streams.

“The publishing part is tied to more services such as Spotify and iTunes under the TuneCore umbrella,” he said. “The money lost there will end up in the hands of those distributors instead. Granted, the artist still retains most of it, but it's a significant deal to lose out a chunk of money on each sale on a bunch of distribution places when there's already middle-men around.”

Pålsson continually pointed out that he believes the problem isn’t necessarily with TuneCore, but given the current framework, it’s unclear how to develop a system that benefits everyone.

“I don't know exactly how it would work technically without generating tons of administrative work” he said. “All I know is that I would like the lets-players, reviewers and game devs use as much music they need to do their work without having a lot of red tape to go through, as it's in the musicians' best interest as well.”

What’s happening on YouTube is important because this content is valuable. YouTube users aren’t just “personalities” to be swept under the rug. Many of them are doing work as legitimate as what myself and my other "traditional" press colleagues do every day. It’s just easier to regulate what’s happening on YouTube because it’s not considered press, and there are tools to manipulate what’s happening. That's not right.

"This problem is systematic and symptomatic of outdated copyright and licensing laws that have not adapted to today's interconnected internet lifestyle that you and I have grown accustomed to."

But right now, INDMUSIC doesn’t have a problem with the way it’s currently being handled.

“Videos should be disputed so content can be allowed to properly monetize,” said Martinez. “Creators should provide as much information about why they are disputing the claim as possible. The current problem is more around a massive massive batch of files being subject to ContentID all at once. It sucks that it is hurting the gaming community so heavily at the moment, but it was a messy situation that needed to be resolved. For every legitimate video this is hurting, there are three or more videos using rights without permission and profiting from such uses.”

And as it stands, YouTube isn't changing any of its policies. A letter sent out to YouTube channel holders, obtained by Kotaku, said as much.

"Whether gaming, music or comedy is your passion, know that we love what you do," said the company. "We've worked hard to design Content ID and other tools to give everyone--from individual creators to media companies--the opportunity to make great videos and earn money. As YouTube grows, we want to make sure we're providing the right product features to ensure that everyone continues to thrive."

More clashes are inevitable, but now, nobody seems happy, not even the copyright holders this is supposed to "help."

This whole thing is crazy.

But at it’s very base level, it’s the recording of playing a game.

One of these "its" (or "it's") doesn't belong.

Ouroboros!

Thanks!

The one eyed snake of youtube eh

What a mess.

Youtube has set in motion the process of it's own demise, tis' only a matter of time.

Are these the end times?

This whole thing has been a complete and utter mess. We need some new legislation or SOMETHING to protect fair use on the internet. Very sad to see so many people with innocent intentions being hit with these content ID notices.

@zabant: lol.

This. So much of this.

Wow. That's. In all my years, I don't think I've ever seen a more broken system implemented by any business before.

This is insane.

Google really needs to understand that there is no such thing as "too big to fail" on the internet. MySpace thought it was "too big to fail" and then became totally irrelevant overnight in favor of Facebook. If they continue to screw content creators, they WILL migrate somewhere else.

Someone sent me a video to watch today from Digg... Digg!

The world's gone crazy

@patrickklepek: "What’s happening on YouTube is important is because this content is valuable."

Something seems off there, is the second "is" needed?

Well if Youtube keeps doing what it's doing, then soon nobody will be able to watch anything other than watching an old lady/young child fall over and then being photobombed by the dog/cat/BradShoemaker.

I'd better register my new domain, dudetube where I'll have a policy of 'fuck it, do what you like.' :)

And as it stands, YouTube isn't changing any of it policies.

"Its policies" and not "it policies."

What’s happening on YouTube is important is because this content is valuable.

There's one too many "is."

Sorry to point these out.

Lol Digg... Wait one sec while I look some stuff up using altavista search engine.

Youtube is a big fucking joke. People need to move to another website or build their own. I say just convince PewDiePie to move somewhere. Or that whole Polaris network. They seem to be pretty damn huge.

Not everyone likes the idea of others making money off of their work and that is their right to oppose that. Don't lose sight of that even in this era.

Sticky situation though....

It's crazy that they're not even admitting any fault with their new system. The sheer plethora of false claims shutting down their legitimate patrons demands an apology from Youtube at the very least. They cannot pretend that it's not happening.

And again we can partially blame Viacom for ruining the internet.

What I don't understand is that Google's content ID page says:

"This means that for any content you claim through Content ID, you must have exclusive rights to all of the underlying material. Accordingly, enabling material for Content ID which contains footage that is not exclusively owned or licensed may result in improper claims being generated."

If Mr. Palsson is licensing out his music on his own (as he clearly did for VVVVVV) and not via TuneCore, then TuneCore should never have submitted it to Content ID in the first place, since they are not the sole source of rights to the music and therefore cannot be sure that it has been used without permission.

Exactly! It's the people who put the videos up (and the people that watch them) are the ones that made Youtube popular to begin with.

I'm thrilled that Patrick clearly explained the situation that so many reactionary folks have misunderstood. YouTube hasn't sent notices to the VVVVVV guys. YouTube isn't taking down content. In these situations, it is other companies who believe they're protecting copyright, filing these greivances on the behalf of others. Frustrating, sure, but clearly not malicious.

But to go from that, to somehow blaming YouTube for "siding" with copyright holders, is blatantly missing his own point.

There are no sides in this situation. This isn't the goliath of Google shitting on creators and buddying up with big business. It's Google providing a free service to everyone, allowing some of them to even make money through it, and trying what they can to keep it as open as possible and still NOT GET SUED.

This is the awkward first step in navigating these legal waters and still trying to help creators, and yeah, it's not flawless. But the undertone of blaming Google and YouTube is at best misinformed and counterproductive.

I think YouTube will continue despite their best efforts to upset everyone that watches and/or creates gaming videos. But I would not be surprised if the gaming community gradually migrates to another service (Twitch? *insert video service here*?) that fills the void created by YouTube's failings. I keep imagining another big company out there taking advantage of this situation by creating a new and competent video service on a par with YouTube specifically for gaming without all the fuck ups that YouTube has created.

What strikes me the most about this mess is YouTube's utter unresponsiveness and inflexibility. As one of the companies that did more than most to restructure digital culture, it comes across as backwards and old-fashioned like the broadcast media it once sought to challenge.

Bleh...

"Mess" is right. That's about all I can think about all this. It's indeed a mess.

YouTube in seemingly transforming into the monster it so gracefully avoided (in the most part) for many years.

Youtube becomes more and more archaic by the day.

@neonie:

you either die a hero or you live long enough to see yourself become the villian

@superscott597: I agree, but I don't see any kind of new legislation regarding copyright law happening anytime soon. As it stands now our outdated copyright laws still benefit the big corporations, the ones with lots of money and influential lobbyists.

The onus of proof is on the copyright holders, the current system puts the burden on the content creators to dispute and prove they have permission. A better system would be one where a ContentID system can flag a video to the copyright holder. At this point the owner must review the video to establish if they believe a breach has occurred, and only then should YouTube block a video or remove its revenue. This must also be backed up with an appeal process that is independently run.

It requires a lot more effort on the part of the copyright holder, but that's how the law works! These ContentID companies will have to actually earn their money instead of leaving it all to a computer algorithm.

Got my coffee ready. Patrick your writings are always informative and entertaining. ^_^

I really don't understand what you mean by this. There's a great grunment to be made that copyright has been extended far too long to be useful. But it in no way benefits big corporations.

Every copyright law applies the same way to me as an individual dude in his apartment as it does to the entire Viacom catalog. This is in no way a "big businesses are keeping us all down" situation.

Also its is "funny" that the same videos even if hey are cleared are getting claimed again from the same company and the same reason. ItmeJP for example got one video already three times claimed for he same reason and the same company. I mean WTF... This system is a fucking mess...

http://www.youtube.com/watch?v=nCf0fOe-Nj4

I've had problems similar to this where I get media assets for FILM and TV projects and I putem up on YouTube as part of my site and hey they do good traffic, I don't monotize since that seems like a pain in the ass, but once the assets hit about 20k views they get hit with ContentID claims and are muted and thus usesless to me. I email PR departments who express their dismay and than say well we can put you on a whitelist but the claims are coming from a seperte company within our company so its really not that effective.

Fucking internet how do you work?

I'd like to see where the stat that for everyone one video used legitimately three more are doing so illegally. Where did that come from? The University of Pulling it out of our Ass?

This was nice and informative. Thanks Patrick!

Thank the DMCA types and corporations for this. Not youtube who are trying to not get their asses sued to hell.

@joshwent: You need to blame someone. This is a very real lesson that if you're going to build your "business" around a service that you neither own nor control over, things might come crashing down in a single day. You might be the biggest YouTuber in the world, and you might have the complete moral backing of the community behind you, but at the end of the day you're just a user of this service that has complete control over how you air your content through it.

“The history of the twentieth century was dominated by the struggle against totalitarian systems of state power.

The twenty-first will no doubt be marked by a struggle to curtail excessive corporate power.”

It's all a symptom of a much greater problem. YouTube is certainly hurting itself and has to hold some responsibility, but, at the same time this all comes back to copyright laws. And copyright laws aren't going to change any time soon because of other, much bigger, problems related to the government and big corporations and money.

@joshwent: @gnatsol: The problem is that the current Content ID system was created so that companies could register their content so that other companies wouldn't steal it. A company like Blizzard registers their content so some fly by night Asian WoW knockoff doesn't use WoW trailer footage to promote its own game. Content ID has problems when it starts flagging and de-monetizing Hearthstone videos based on the background music when Blizzard has given express, written consent on their website for monetization of videos featuring their content as long as it does not lie behind a paywall.

In addition to that, the Content ID system is technically compliant with the DMCA, but it goes much deeper than the DMCA requires for compliance. In order to be compliant with the DMCA, all Youtube needs to do is have takedown procedures in place so that when a company requests a DMCA takedown and provides proof that their material was used without their consent, it must be taken down without issue. As it currently stands, Content ID is a "guilty until proven innocent" system, which is not required by law. The issue Google is TRYING to cover up for is that a company COULD argue that with the large amount of content uploaded to Youtube a simple DMCA takedown procedure could allow a lot of stuff to fall through the cracks, but nowhere has it been said that the law requires a "guilty until proven innocent" type of system.

Maker, who owns the Polaris network recently bought out Blip.tv, so its possible we would see a migration away from Youtube in favor of Blip for gaming content.

Google used to come up with cool ideas and made some great things but somehow they strayed off their path and make all sorts of weird decisions. The gmail trackback, Youtube comment system and now this.

Letting money into youtube was the worst thing that ever happened to youtube.

Agree. And what pains me is that that lesson is being absolutely avoided in these "discussions". The only lesson that I see in these articles and these comments is that YouTubers are good, big businesses and Google are evil.

I want let's players and YouTube reviewers and game devs and everyone else to flourish. But ignorantly avoiding the fact that most of them are illegally using copyrighted content isn't going to help the "little guy" win.

Robots really shouldn't be pulling down videos sight unseen. Neither should big corporations who apparently don't understand how video game music works.

I have to imagine they'll sort out the video game music stuff in time because no video game composer in their right mind wants to pull videos of the game itself down but what of video games with licensed soundtracks?