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Lawwly Law Review
When Technology Outpaces Law: Evaluating the Rapid Evolution of Media
Monday, May 11, 2020
Never before in the history of the United States have we experienced such a rapid expansion of new technologies. We summarize the history and overview of the Digital Millennium Copyright Act and provide a case study as well as recommendations for reform to catch up the law to technology.
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When Technology Outpaces Law: an evaluation of the rapid evolution of media and a recommendation for reform
Introduction............................................................................................... 1
I. Infringement and the DCMA............................................................. 4
II. DMCA and the Safe Harbor.............................................................. 9
III. DMCA and its Shortcomings.......................................................... 10
IV. YouTube: How It Works and Its Rise to Prominence................ 14
V. DMCA and YouTube........................................................................... 20
VI. Addressing DMCA and YouTube ................................................ 26
Conclusion............................................................................................... 30
Bibliography............................................................................................. 31
Introduction
Never before in the history of the United States have we experienced such a rapid expansion of new technologies. As a result of this, the media industry has grown into a massive $717 billion industry.[1]In less than two decades, cable television broadcasters evolved into streaming media providers, radio is now largely broadcasted on the internet, and video games have branched off into their own $26 billion industry. It’s crazy to imagine that with enough time and little bit of luck, anyone could gain internet stardom paralleling that of famous celebrities from simply playing video games and recording their reactions online on platforms such as Twitch and YouTube.[2] To adapt to this new environment, the United States Copyright Office, in an attempt to modernize our copyright systems, established the Copyright Modernization Office to provide guidance and recommend reforms for copyright law.[3]Since its inception, the Copyright Office has processed a staggering 38,313,297 copyright claims to works of authorship.[4]As new technological advances bring about nearly infinite ways in which individuals may fix one’s expression in a tangible medium, there is growing support for a formal re-codification of the Copyright Act. Surprisingly, the Copyright Act hasn’t been formally re-codified since 1976.[5]Recent judicial opinions and Congressional acts have mitigated this shortcoming to an extent, by adapting existing principles and policies of copyright to new trends and forms of media, largely on a per diem basis. However, frustration from delays in bureaucratic red-tape has led to several private companies directly involved in these new forms of media to take on this challenge on their own, and this isn’t necessarily a bad thing.[6]YouTube, for example, has grown into the world’s largest online video platform since its inception in 2005, and has more daily users than most nations’ populations.[7] The Copyright Office currently holds public hearings for rulemaking guidance in Los Angeles and Washington, DC, and a unique if not superior source of insight can be found in studying YouTube’s attempts to navigate the body of copyright law and its subsequent related legislation.[8]For example, studying empirical data that tracks YouTube’s unique dispute resolution process, which supplements YouTube’s DMCA-compliant takedown procedures, can provide the Office with valuable insight and guidance for future revisions of the DMCA.
This article proceeds as follows. Part I begins with a brief summary of the history leading up to the enactment of the DMCA. Enacted in response to changes brought about by the digital age, the DMCA provides a safe harbor for infringement liability for intermediary internet service providers, like YouTube. Part II provides a brief overview of the legal structure of the DMCA’s safe harbor provisions and evaluates the requirements that internet service providers must meet in order to avail themselves to safe harbor protection from copyright infringement liability. Part III begins by addressing various criticisms of the DMCA, which go as far back as the DMCA’s implementation in 1998. It also evaluates the current state of gathering valuable empirical data on the DMCA’s impact. Part IV provides a brief description of YouTube, how it works, and briefly traces the history of the platform’s history. Part V begins by summarizing YouTube’s historical involvement with the U.S. judicial system, and also evaluates relevant caselaw pertaining to ISP liability. This section also provides a detailed description of YouTube’s dual automated enforcement mechanisms that it currently employs in order to comply with the DMCA. Part VI summarizes recent scholarly suggestions for reforms of the DMCA, as well as recent trends in the administration and enforcement of the DMCA. This section ends with the author’s own recommendations for evaluating future reforms that pertain to the DMCA, urging legislators and judges to focus their inquiry on the broad policy goals of the Copyright Act as well as the policy goals for copyright set forth under the U.S. Constitution, ending with recommends based on research into YouTube’s triumphs and tribulations with regard to copyright law.
I. Infringement and the DMCA
The drafters of the United States Constitution included copyright protections for the purpose of “promot[ing] the useful arts and sciences.”[9]The traditional notion of copyright policy in the United States was to grant authors of creative works, for limited times, a monopoly on such works in order to incentivize them to create such works, with the ultimate beneficiary being the general public when such terms expired.[10]Throughout U.S. history, advancements in technology have prompted two formal revisions of the Copyright Act.[11]New technologies have also prompted significant rulings by the courts which reconsider traditional notions of copyright and resolve issues of law in new and novel ways.[12]
The United States Supreme Court in Sony Corporation of America v. Universal City Studios, Inc. held that time-shifting, through the use of recording cable television broadcasts using VCRs, a new technology at the time, constituted fair use.[13]Despite knowledge of widespread infringing uses of the VCR, Sony was held not liable for their customers’ infringing actions on the basis that the VCR device was capable of a “substantial non-infringing” use.[14]
As a result of Sony, certain companies formed peer-to-peer file sharing services allowing users to share digital files with one another. This had a great potential for abuse, since users could easily copy, duplicate and distribute infringing content.[15]The emergence of these peer-to-peer file sharing services eventually reached the attention of the U.S. Appellate Circuit Court systems in another case, A&M Records, Inc. v. Napster, Inc., where the United States Court of Appeals for the Ninth Circuit held Napster liable for contributory and vicarious copyright infringement on the basis of having a centralized server, among other things.[16]Subsequently, the United States Supreme Court addressed a similar issue in MGM Studios, Inc. v. Grokster, Ltd., holding peer-to-peer file sharing companies liable for inducing copyright infringement for acts taken in the course of marketing their file sharing software.[17]
Judicially-made doctrines were also developed, thus expanding the realm of liability to third parties.
The Federal Circuit, in Religious Technology Center v. Netcom, famously established the standards for third party liability, specifically contributory infringement and vicarious liability.[18]An intermediary would face liability for contributory infringement where it had knowledge of the infringing activity and induces, causes or materially contributes to the infringing conduct of another.[19]Vicarious liability would be found where the intermediary has the right and ability to control the infringer’s acts and receives a direct financial benefit from the infringement.[20]When considering the effects of these rulings, one would find that they have the effect of causing all internet service providers, including YouTube, to be held liable for all infringing conduct by their users.[21]It would be really difficult to imagine that YouTube could exist today without specific Congressional legislation providing a safe harbor against such liability.[22]
The shift towards these safe harbors began in 1996, where Congress legislated on the issue of objectionable content. Under the §230 of the Communications Decency Act, intermediaries that were merely acting as conduits were afforded a general immunity from defamatory claims based on their users’ content so long as the intermediary did not have direct involvement in generating the content.[23]This was a huge step forward for immunizing intermediaries, and the continued popularity and success of the internet today can be widely attributed to such acts. While the act involved the topic of third party liability, it did so only within the context of objectionable content, primarily in situations involving defamation.[24]
In 1998, Congress introduced the Digital Millennium Copyright Act.[25]Again, policymakers feared that making internet service providers liable for content posted by its users would cripple the developing online industry and the interests of its users.[26]To shield online businesses against such a threat, Congress adopted a safe-harbor framework, exempting sites hosting digital content from legal liability for content posted by users.[27]
This line of legal development illustrates a cyclical back-and-forth between the introduction of new technologies and the development of new laws. Once a ruling was handed down or an act was enacted, technological minds would find creative ways to comply with such standards. The new technologies would then be cutback by subsequent rulings and new laws. With the advent of artificial intelligence, machine learning, neural networks, blockchain, and big data aggregation, this all-too-familiar cycle has once again returned to the forefront of copyright.[28]
II. THE DMCA and Safe Harbor
The DMCA limits service providers' liability for all monetary harm stemming from transmitting, caching, storing, or linking to infringing material.[29]The safe harbor for storage of infringing material under §512(c) shields platforms like YouTube from liability stemming from infringing material uploaded by their users.[30]To qualify for this protection, platforms like YouTube are required to meet several general and specific conditions.[31]
First, they must comply with two general requirements: the removal of repeat infringers and the non-interference with standard technical measures copyright holders deploy to their content.[32]Second, they may not receive any direct financial benefit from the infringing activity.[33]Third, intermediaries like YouTube must not have actual or constructive knowledge that the infringing content is on their system, but for practical purposes, they weren’t required to actively and scrupulously monitor such conduct.[34]Lastly, upon receiving notice from a right holder, platforms are required to act expeditiously to remove or disable access to the claimed infringing material, a procedure commonly known as "notice-and-takedown.”[35]
Seemingly, this framework appears flexible enough so that one could rely on the availability of the safe harbors for any and all future forms of media. Unsurprisingly, however, new technology has and always will continue to bring forth new surprises and challenges.[36]These new technologies call for a re-evaluation of the DMCA’s policies and forces us to ask whether these new technologies can be reconciled with existing policies, or if new policies are needed.[37]
III. DMCA and its Shortcomings
Since its introduction in 1998, the DMCA faced various criticisms stemming from its potential for serious chilling effects and burden people’s autonomy, freedom of expression and privacy, its fundamental incompatibility with current forms of technology, and its lack of safeguards against abusers.
The DMCA has long been criticized for causing serious chilling effects on the freedom of speech.[38]By automating the process, critics assert that the DMCA fails to provide those affected by takedowns with adequate due process.[39]Further, these critics point to a high potential of violating people’s privacy interests.[40] If perfectly enforced, the DMCA could place a heavy burden on people’s autonomy by, for example, automatically restricting access to copyrighted materials in the classroom.[41]
Further, the DMCA’s attempt at a legal equivalent of automated regulation has been criticized for being an incomplete attempt at addressing new technology within our existing legal frameworks. In automating the “notice-and-takedown” procedure, for example, these critics assert that the DMCA failed to consider the very important doctrine of fair use, and by failing to do so, also removed the necessary burden on intermediaries in considering fair use as well.[42]Further, there are few empirical studies on how the notice and takedown actually works in practice.[43]Additional research into the factors motivating these takedown requests can shed light for policymakers and judges in understanding and perhaps reshaping the DMCA.[44] Relatedly, the DMCA’s safe harbor provisions face criticism for their lack of safeguards against abuse.[45]For example, in the early days since the DMCA was enacted, critics asserted that the DMCA’s automatic removal process allowed many corporations to capitalize on this flaw through their use of “bots” to search for copyright violations, generating millions of takedown requests.[46]
Fundamentally, the DMCA along with the rest of copyright law must continue adapt, otherwise it will be truly outpaced by the rapidly increasing pace of innovation.[47]However, many private actors, such as YouTube, can act as an important source of information as experimental labs for future reform, in a similar sense to Justice Brandeis’s notion of states being the laboratories for democracy.[48]While YouTube is currently the best case study in understanding trends of copyright and media, it can just as easily become obsolete as quickly as the VCR in due time.[49]Thus, the window of opportunity to learn and reform the body of copyright law from YouTube is fleeting. There is so much that scholars, policymakers, and other stakeholders could learn from YouTube, and they should make it a priority to take in as much data and information as possible while it still remains relevant.[50]
IV. YouTube: How It Works and Its Rise to Prominence
It’s hard to surf the web nowadays without running into YouTube’s video platform.[51]YouTube currently sits as the undisputed king of online video by leveraging its unequivocal computing capacity, artificial intelligence, machine learning, big data aggregation and analytics, and loyal user base to control the ad revenue and secure a large portion of the media industry.[52]
The platform’s meteoric growth traces back to 2005, when it was merely a personal video sharing service headquartered above a pizzeria in California. The founders, Jawed Karim, Steve Chen, and Chad Hurley, secured a $11.5 million investment from Sequoia Capital, which acted as the catalyst for YouTube’s growth.[53]Users were initially invited to upload and tag videos, and YouTube was advertised as a mere host. YouTube simply provided a video player, bandwidth, and server space at no charge to the user. Once a video is posted, YouTube generates a shareable URL which can be passed on to other users or used for other purposes on other websites.[54]
YouTube’s evolution from merely a “technology and infrastructure” provider into what some have called a “destination and a brand” jumpstarted the platform’s rapid growth in 2006.[55]It’s ease of use, inviting front page, and interactivity connected its brand to the content of its videos, and as a result, the platform’s brand became connected to its content, and YouTube was able to utilize the benefits of network effects.[56]As more users created more content, more users signed onto the platform, creating a self-perpetuating upward loop.[57]
Less than a year later, Google acquired the company for around $1.65 billion after realizing the platform’s incredible potential for generating advertising revenue.[58]Subsequently, users were given an opportunity to make a living simply by posting videos and generating revenue from ads and support.[59]After the introduction of ads in 2010, the addition of various new features as part of a major overhaul in 2011, and the formation of countless partnerships with various content creators and advertisers since 2012, the platform has secured a near-monopoly position in the online video space and continues to provide a growing number of ways for users to earn revenue on the platform.[60]
Notably, several content creators in recent times have benefited immensely from YouTube’s network effects to achieve global internet stardom.[61]For example, YouTube’s top subscribed-to channel, PewDiePie, boasts over 104 million subscribers and generates an estimated $1 million in ad revenue per month from his “Let’s Play” videos.[62]From his humble beginnings in his one-bedroom flat in Sweden, PewDiePie leveraged his rapid rise to stardom to secure various sponsorships, unimaginable wealth, and the highly-sought title of the most subscribed-to-channel on YouTube.[63]
None of PewDiePie’s success would’ve been possible had it not been for an important licensing agreement wherein YouTube agreed to share its ad revenue for pages hosting Warner Music’s content, after YouTube observed that users on its website were infringing on Warner’s copyright on a massive scale.[64]Unsurprisingly, YouTube has found itself at the center of multiple lawsuits over issues of copyright infringement and the DMCA.[65]
To date, over five billion videos are uploaded onto YouTube each day, including unlicensed, copyrighted material that appears on the website.[66]This would result in an imaginably massive amount of legal liability to YouTube for copyright infringement.[67]However, finding safe haven under § 512(c) of the DMCA would shield YouTube from monetary liability or equitable relief for infringing activities on its website.[68]
First, YouTube has a repeat infringer policy that directly specifies the circumstances under which a user would be terminated.[69]Additionally, there doesn’t appear to be a real industry-standard technical measure for all videos.[70]Second, YouTube clearly is a service provider, since it provides online services and operates its video-hosting services within the definition of §512(k)(1)(B).[71]Third, YouTube has a notice and takedown system directly available on its website, meeting the requirements of §512(c)(1)(C).[72]Fourth, YouTube clearly receives a direct financial benefit that is directly attributable to the videos that it hosts, including any and all infringing ones, since it currently runs ads wholesale on all videos.[73]
Thus, notwithstanding the actual or apparent knowledge standard under §512(c)(1)(A), a provider like YouTube would be shielded from liability.[74]It is undeniable that YouTube has at least general knowledge that some of its user-uploaded videos contain copyrighted materials.[75]On the other hand, mandating YouTube to police such an unbelievable amount of videos would bankrupt the business.[76]Fortunately, the remaining issue on whether YouTube has “actual knowledge or is aware of facts and circumstances of infringing activities” under § 512(c)(1)(A) was directly addressed in 2010 by a Federal District Court in Viacom International Inc. v. YouTube, Inc.[77] The court ruled in favor of YouTube, holding that the streaming platform had no actual knowledge of any specific instance of infringement of Viacom’s works, which also had the effect of precluding a willful blindness claim.[78]Furthermore, the lack of evidence showing that YouTube induced its users to submit infringing videos resulted in a finding that YouTube had no right and ability to control the infringing activity of its users.[79]It is fortunate then, that YouTube was able to avail itself of the safe harbor provisions at that time. In hindsight, this ruling had an immense effect of giving YouTube a once-in-a-lifetime opportunity to capitalize on the exceptional popularity of video web hosting services, and could arguably insulate YouTube from liability stemming from future forms of media as well.[80]
V. DMCA and YouTube
Since Viacom, YouTube continues to operate with over one billion users and billions of videos uploaded onto the platform each day. Under YouTube’s policy, content creators that upload infringing content may be subject to a copyright strike against their YouTube account in the event that they receive a takedown notification pursuant to the DMCA.[81]When a YouTube user receives a copyright strike on their channel, YouTube conducts punitive measures in order to discourage rampant copyright infringement amongst its users.[82]Usually, a user who receives a copyright strike for the first time is given a warning and their video may be de-monetized. In addition, live streams that receive a copyright strike may result in the users’ access to live streaming restricted for 90 days. If a user receives three copyright strikes, the user’s account is subject to termination, their videos may be removed, and they are prevented from making a new channel.[83]This has the effect of basically ending the user’s YouTube career, and could result in the loss of ongoing sponsorships, monetization opportunities, and more.[84]In executing this system, YouTube uses two systems, one of which is an automated monitoring system called “Content ID”, a system which additionally allows copyright owners to manually file a DMCA takedown request.[85]Interestingly, if a video is taken down or monetized by the copyright owner through the automated Content ID system, a copyright strike will not be filed against the content creator’s YouTube account.[86]Further, while copyright strikes expire in ninety days, the expiration is contingent on the user completing YouTube’s internal “Copyright School”.[87]
YouTube’s Content ID is an attempt to efficiently automate the process of filtering infringing content uploaded onto YouTube.[88]Rather than requiring copyright owners to continually file DMCA takedowns for each video, the system, launched in 2007, automatically identifies copyrighted content in uploaded videos through a process known as “digital fingerprinting”.[89]When the system detects infringing content, it automatically takes action pursuant to standards set by the copyright owner.[90]At first glance, the system appears to be a very creative and novel approach of protecting copyright owners’ interests, and this concept could even be something that our legislatures could mimic.[91]Content ID allows copyright owners to track, remove, or monetize any and all infringing content that YouTube users upload.[92]By uploading their copyrighted material to YouTube’s Content ID database for “fingerprinting”, the copyright owner has the ability to automatically detect and block user-uploaded videos that contains any of their copyrighted material.[93]Furthermore, copyright owners are afforded the option to have the videos automatically monetized, with the revenue going to the copyright owner, so the videos do not necessarily need to be taken down.[94]However, the accessibility and eligibility for copyright owners to utilize the benefits this system is determined under YouTube’s sole discretion, so this system is not freely available to all copyright owners.[95]
After exhausting YouTube’s dispute process, content creators and copyright owners have the option to dispute the claim on legal grounds such as fair use.[96]Copyright owners can then (1) release the claim, (2) uphold the claim, or (3) submit a DMCA takedown request manually to have the video removed entirely.[97]If the copyright owner releases the claim, then the monetization goes back to the content creator.[98]If the copyright owner upholds a claim, the content creator may, as previously mentioned, dispute the claim, which results in a “temporary lift” on monetization of a video until the dispute is resolved.[99]Content creators can then appeal the copyright owner’s decision to uphold their claim, and the copyright owner has the option to respond within 30 days.[100]Copyright owners can choose to (1) release the claim in agreeance, (2) submit a copyright takedown request through the DMCA process, or (3) schedule a copyright takedown request, which either provides the content creator an option to cancel their appeal, thus avoiding the resulting copyright strike, or allows the copyright owner to have the video taken down in seven days.[101]
While this is unlikely, content creators can continue the dispute by filing a counter notification.[102]YouTube suggests that the process may only be pursued in instances where the upload was removed or disabled as a result of a mistake or misidentification of the material to be removed or disabled, such as fair use and does not recommend content creators to use this method for other circumstances.[103]Included in the filing of a counter notification is the content creator’s consent to jurisdiction in a federal district court.[104]Content creators must also swear under penalty of perjury that the material was removed as result of mistake or misidentification of the material to be removed or disabled.[105]Once the counter notification is filed, it is sent to YouTube and forwarded to the copyright owner, who is entitled to use any of the information in the counter notification to file a lawsuit against the content creator.[106]
A preliminary analysis of the process seems to be promising and even preferential to the DMCA’s notice-and-takedown regime.[107]Rather than going straight to the DMCA, YouTube content creators and copyright owners are given in essence an alternative dispute resolution process to allow them to work out their dispute.[108]In fact, YouTube advertises that it has over 9,000 partners on Content ID, including major network broadcasters, movie studios, and record labels.[109]To date, there have been over 800 million videos affected by Content ID, and YouTube claims it has paid out over $2 billion to its partners in helping copyright owners control their copyrighted material.[110]
YouTube’s other automation system, called “Restricted Mode”, uses the same digital fingerprinting technology to automatically evaluate computerized attributes of videos, such as the metadata, title, and language used in the video, to detect “inappropriate” content from its search results.[111]The system however, is faulted for de-monetizing a lot of unintended videos.[112]Notably, critics have pointed out that the system filters out non-explicit LGBT+ content, such as discussions about gender, feminism, and sexuality.[113]Most recently, in a well-intentioned effort to combat the dissemination of misinformation pertaining to COVID-19, Restricted Mode has de-monetized and flagged several videos by content creators for even mentioning the phrases “Coronavirus” or “COVID-19”. The system checks if the videos are uploaded by the CDC, trusted media sources, or from other verified government sources, and if it isn’t, automatically de-monetizes or removes the videos.[114]
VI. LEARNING FROM YOUTUBE AND THE DMCA to Update Copyright
Despite various recommendations and guidance for reforming the DMCA and copyright law generally, the only efficient method of mitigating the rapid outpacing of is through thoughtful application of the same technology in our legal system.[115]
Some academia suggest regulatory reforms to proliferate the information of legal knowledge.[116]The rationale is that by spreading information that promotes legal knowledge to the public, specifically with internet laws, more people will be familiar with the law so as to empower them and mitigate the chilling effects on online speech, sharing, and social network engagement.[117]It would also have the effect of empowering participants with greater legal knowledge so that they will be more willing to challenge DMCA takedowns.[118]Ironically, it is copyright law itself that seems to be standing in the way of dissemination of law and information to the masses.[119]While laws could be clearly considered “government works” and should thus would be free from copyright, the United States Supreme Court only recently ruled on this issue with regard to annotated laws created by the states.[120]It should be noted that this issue is nothing new for the Supreme Court, since they quickly shot down Westlaw’s attempt to preserve its commercial monopoly over printed compilations of laws through its copyright protection for page numbers in federal case reporters.[121]
Other articles suggest pushing towards collecting large amounts of empirical data and analyzing the information to gain valuable insight on the effectiveness of the DMCA, with the ultimate goal of using the information to guide reform.[122]Given the large volume of notices, the DMCA might be actually working fine, or perhaps this volume can be attributed to differences between each service providers’ enforcement of the DMCA.[123]Regardless, this recommendation suggests an important first step in a series of steps that should be taken if our copyright laws are to make any real progress on catching up to technology.[124]
A notable alternative is the recent advent of the Copyleft movement as an alternative to legal reform.[125]Originally based on the idea of promoting the free use of software in order to advance the greater good, the Copyleft movement promotes the use of open-source licenses as an alternative to copyright.[126]Critics of this movement argue that Copyleft licenses merely re-label what are in fact plain old copyright licenses, thereby complicating the debate by adding several unnecessary issues.[127]One notable idea proposed by Copyleft academia is to form a large database of limited copyright works free to use and modify, which is a drastic change in philosophy from our traditional notions of copyright.[128]
All of the criticisms address important shortcomings of the DMCA, however they do not need to be considered exclusively, and can be considered in tandem with the original purpose of the DMCA.[129]In fact, YouTube’s unique nature and current dominance is the perfect case study for addressing these concerns.[130]The lack of freely available public information on copyright laws and lack of familiarity by the public, can be directly addressed by disseminating and promoting YouTube “how-to” videos. The Government can incentivize these forms of media direct grants or by monetizing these videos.[131]To process all this information, we can teach artificial intelligence through machine learning to examine and analyze large amounts of data. This requires disseminating knowledge on computer software and coding, something that can also be addressed by “how-to” videos.[132]The detrimental effects on our privacy and autonomy as a result of YouTube’s practice of using its algorithms to predict each users’ preferences in curating an individualized and personalized canvas of media should not be taken lightly, but this technology could also be applied to analyze precedent in court rulings, thus allowing empirically-backed predictions of future rulings on new technologies.[133] Furthermore, YouTube’s Content ID software utilizes a mega-database which is functionally the equivalent of what the Copyleft movement is suggesting. The government could feasibly use a similar concept in allowing Copyright owners to automate enforcement of their copyrights, although modifications to the system to include fair use would be required.[134]All of these potential benefits will require a rapid push towards increasing the general public knowledge on computer coding and laws with the ultimate goal of reforming copyright.[135]Finally, this burden doesn’t need to be borne by the legislature alone, as the judiciary can act to quiet abusive practices or attempts at corrupting the push for this needed reform.[136]
My suggestion isn’t for the legislature to outright copy YouTube’s Content ID software. Rather, the legislature should treat Content ID as an amazing example that can guide the creation of our own system.[137]Never before in history has technology felt as daunting and impactful as it has now, but that shouldn’t drive legislatures away from trying to understand these new forms of technologies.[138]The use of automation and machine learning, fueled by an increase of familiarity in our laws and in computer science, could have an equally if not greater beneficial outcome.[139]Whatever Congress, state legislatures, or our court system want to call it, technology will continue to drive our demand for a reformation of copyright, and a lot can be learned from the mistakes and triumphs of YouTube.
Conclusion
As technology continues to grow at an exponential rate, it is no longer practical to continue to ignore it. Advances in artificial intelligence, machine learning, computing capacity, and big data analytics are on the edge of technology, but soon too will be considered obsolete. In order to ensure the continued relevance of Copyright law, it is time to truly begin embracing the very technologies that are outpacing our traditional notions of law. Fortunately, Copyright law can still continue to be relevant by striking a balance between content creators and copyright owners. Copyright can still continue to promote the progress of science and the useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings, discoveries, let’s plays, how-to’s, and other anything else that could come. By honing in on the need for this balance, and by utilizing the very technologies that have brought about this period of rapid change, there is still hope for an epic comeback for copyright law.[140]
TABLE OF LEGISLATION
17 U.S.C. § 1201 (2006).
17 U.S.C. § 512 (2006).
47 U.S.C. § 230(c)(1).
Digital Millennium Copyright Act (DMCA), 17 U.S.C. §§ 512(a)-(d).
U.S. Const. art. I §8, cl. 8.
TABLE OF CASES
A&M Records v. Napster, Inc., 239 F.3d 1004 (9th Cir. 2001).
Bartholomew v. YouTube, LLC, 2017 LEXIS 7562 (Cal. App. 2017).
Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 577 (1994).
Georgia v. Pub..resource.org, Inc., 2020 U.S. LEXIS 2529 (2020).
Kinney v. YouTube, LLC, 2018 LEXIS 7702 (Cal. App. Nov. 14, 2018).
Lewis v. YouTube, LLC, 244 Cal. App. 4th 118, 197 Cal. Rptr. 3d 219 (2015).
Matthew Bender & Co. v. W. Publ'g Co. 158 F.3d 674 (2d Cir. 1998).
MGM Studios Inc. v. Grokster, Ltd., 545 U.S. 913, 125 S. Ct. 2764 (2005).
New State Ice Co. v. Liebmann, 285 U.S. 262, 52 S. Ct. 371 (1932).
Nunez v. Caribbean Int'l. News Corp., 235 F.3d 18, 21 (1st Cir. 2000).
Religious Tech. Ctr. v. Netcom On-Line Commun. Servs., 923 F. Supp. 1231 (N.D. Cal. 1995).
Sony Corp. of Am. v. Universal City Studios, Inc., 464 U.S. 417, 104 S. Ct. 774 (1984).
Tur v. YouTube, Inc., 2007 LEXIS 96517 (C.D. Cal. Oct. 19, 2007).
Viacom Int’l, Inc. v. YouTube Inc., 940 F. Supp. 2d 110 (S.D.N.Y. 2013).
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[1] Media & Entertainment Spotlight | SelectUSA.gov, Selectusa.gov (2020), https://www.selectusa.gov/media-entertainment-industry-united-states (last visited May 10, 2020).
[2] Id.
[3] Annual Report for Fiscal 2018, 1-12 (1 ed. 2020), https://www.copyright.gov/reports/annual/2018/ar2018.pdf (last visited May 10, 2020). Pursuant to the Copyright Act, the Copyright Office provides assistance to Congress, certain Executive branch agencies, and the court system on issues of domestic and international copyright issues. Most notably, this Office has provided extensive advice to Congress in the most recent version of the Copyright Act in 1976 and continues its longstanding role of assisting Congress to this day.
[4] See Id. At 6. The report shows an exponential rate of increase in copyright claims since the inception of the Office up until fiscal year 2018, which can be attributed to the growing variety of copyrightable subject matter that is available for registration with the Office by individuals.
[5] Circular 92 Copyright Law of the United States and Related Laws Contained in Tıtle 17 of the United States Code, preface-xiii (1 ed. 2016), https://www.copyright.gov/title17/title17.pdf (last visited May 10, 2020).
[6] Since 1976, there have been roughly 68 amendments, acts of Congress, and international revisions of the 1976 Act, and it was very cumbersome to sort out the various acts and amendments into a coherent whole, further prompting a need for a formal recodification if there is any chance to truly simplify the body of Copyright law in the United States. See, Id.At vi.
[7] See, Kurt Hunt, Copyright and YouTube: Pirate's Playground or Fair Use Forum?, 197-200 14 Mich. Telecomm. & Tech. L. Rev. 197 (2007), available at: http://repository.law.umich.edu/mttlr/vol14/iss1/6. The 2007 article reports 72 million monthly visitors, which is far eclipsed by today’s figures for YouTube users, which has grown to the billions.
[8] See, Id. At 200. The size of YouTube’s user base and its novel platform business model has fundamentally eroded our traditional notions of the power balance between creators and the public (since any member of the public is now empowered to become creators as well, and their rights would naturally clash against any subsequent content creator that creates content using similar content), thus YouTube now plays a very important role in our society and provides priceless insight into the future of copyright law in the United States. It’s hard to imagine a time in U.S. history where every citizen is empowered to create their own media and have it broadcasted to billions of people. The potential for infringing media is therefore never higher than it has in U.S. history.
[9] See U.S. Const. art. I §8, cl. 8.
[10] See Alfred C. Yen & Joseph P. Liu, Copyright Law, Essential Cases and Materials 1-15 (3 ed. 2016). The casebook authors highlight a policy debate stemming around the original purposes of copyright law by tracing the history back to the earliest cases involving the Statute of Anne, also known as the Copyright Act 1710.
[11] See Brown, Christopher S., Copyleft, the Disguised Copyright: Why Legislative Reform is Superior to Copyleft Licenses, 78 UMKC L. Rev. 749, 752 (2010). Congress amended the Copyright Act in 1909 to protect “all writings”, broadening copyrightable subject matter from merely literary works, and revised the Copyright Act again in 1976 due to technological advancements in radio, television, and sound and motion picture recordings after the turn of the 20th Century. Thus, relatively less dramatic advancements in technology compared to today have prompted revisions of the Copyright Act.
[12] See Sony Corp. of Am. v. Universal City Studios, Inc., 464 U.S. 417, 104 S. Ct. 774 (1984). While the lower courts have been grappling this issue for a long time already, the United States Supreme Court famously rendered a ruling involving the addition of the “substantially non-infringing uses” standard in considering the new technology of the VCR (at the time).
[13] See, Id. “Time-shifting” is defined as the recording of programming to a storage medium to be viewed or listened to after the live broadcasting. In the case of Sony, this involved the recording of public cable television broadcasts using VCRs.
[14] See, Id. “The question is thus whether the Betamax is capable of commercially significant noninfringing uses ... one potential use of the Betamax plainly satisfies this standard, however it is understood: private, noncommercial time-shifting in the home. It does so both (A) because respondents have no right to prevent other copyright holders from authorizing it for their programs, and (B) because the District Court's factual findings reveal that even the unauthorized home time-shifting of respondents' programs is legitimate fair use … If there are millions of owners of VTR's who make copies of televised sports events, religious broadcasts, and educational programs … and if the proprietors of those programs welcome the practice, the business of supplying the equipment that makes such copying feasible should not be stifled simply because the equipment is used by some individuals to make unauthorized reproductions of respondents' works … [W]hen one considers the nature of a televised copyrighted audiovisual work ... and that time-shifting merely enables a viewer to see such a work which he had been invited to witness in its entirety free of charge, the fact ... that the entire work is reproduced ... does not have its ordinary effect of militating against a finding of fair use.”
[15] “Peer-to-peer”, also known as P2P computing, is a structure of computer network in which interconnected nodes, acting as the peers, share resources amongst one another, typically without the use of a centralized administrative system.
[16] See A&M Records v. Napster, Inc., 239 F.3d 1004 (9th Cir. 2001). While the existence of a centralized server was highly relevant in the court’s rendering of its ruling, the court also found that Napster knew its users were distributing copyrighted content without permission on its network and that it could block access to the system, so its failure to do so and remove the infringing content meant that Napster had actual knowledge of specific infringing acts to find Contributory infringement. Further, Napster had the right and ability to supervise its users’ conduct, so its failure to police such conduct coupled with Napster’s direct financial interest in the infringing uses led to the Ninth Circuit’s affirmation of the District Court’s finding of vicarious infringement.
[17] See MGM Studios Inc. v. Grokster, Ltd., 545 U.S. 913, 125 S. Ct. 2764 (2005). Grokster came before the Supreme Court after having already won in two previous courts, but was ultimately held liable due to the Court’s skepticism of Grokster’s blatant advertising of conduct that amounted to infringement of commercially protected interests under copyright by entertainment companies.
[18] See Religious Tech. Ctr. v. Netcom On-Line Commun. Servs., 923 F. Supp. 1231 (N.D. Cal. 1995).
[19] See, Id.The Court held that Netcom could be liable for contributory infringement on the basis that it failed to delete infringing messages posted on a bulletin board, but did not make a decision on the basis that a genuine issue of fact was raised as to whether Netcom knew or should have known that such activities by their users were infringing on the unpublished and published works of L. Ron Hubbard, a late founder of the Church of Scientology.
[20] See, Id.The Court did not find vicarious liability for Netcom due to the absence of evidence suggesting that Netcom received direct financial benefit from the infringing activity. Further, the court found a genuine issue of fact as to the right and ability to control element of vicarious liability, and did not decide on this issue because the evidence did shed light on whether Netcom had the right and ability to exercise control over its bulletin board subscribers.
[21] See Hunt, supra note 7 at 198. Only two years after its release in 2005, academics and media executives estimated that 30-70% of YouTube’s content consisted of unauthorized materials such as sound recordings, TV, and movie clips. This prompted comment by content owners who argued that YouTube was merely a giant clearinghouse for copyright infringement. These allegations prompted hundreds of thousands of demands to remove these videos and numerous lawsuits.
[22] Hunt, supranote 7 at 199. The author does discuss and advocate for fair use to be applicable to YouTube’s actions as well in the absence of the safe harbors provided by the DMCA, but the introduction of the DMCA does not completely remove the fair use analysis from relevance as the fair use analysis becomes important in cases between a copyright holder and subsequent content creators who may use the copyrighted material in a fair manner or create a subsequent work that may be viewed as a derivative work.
[23] See 47 U.S.C. § 230(c)(1). The act provides “No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider". This means that online intermediaries that merely host or republish speech, such as YouTube, are protected against various laws that otherwise may hold them liable for the actions of their users. The act includes both regular internet service providers and a range of ‘interactive’ computer service providers, which could also include YouTube as it allows users to control the flow of videos on the website. While the act does not speak to infringement directly, it’s broad protection on the basis of objectionable content has allowed innovation and free speech online to flourish in the early days of the internet.
[24] See Heather Saint, Section 230 of the Communications Decency Act: The True Culprit of Internet Defamation, 36 Loy. L. A. Ent. L. Rev. 39, 45–46 (2015). Saint notes the benefits of granting immunity to website providers that allow users to post comments, but also notes the lack of enforceability in the act by victims of any defamatory remarks that users post on the website due to the anonymous nature of web message boards at the time. Of course, this prompted the proliferation of internet service protocol addresses, or IP addresses, which track the physical address of internet users. The proliferation of routers has complicated and undermined the reliability of these addresses, and the introduction of VPNs in recent times has made IP addresses all but obsolete for identifying users.
[25] See Digital Millennium Copyright Act (DMCA), 17 U.S.C. §§ 512(a)-(d). See also 17 U.S.C. § 1201 (2006). To balance the tradeoffs with providing general immunity to ISPs, the DMCA also provides for anti-circumvention protection to copyright owners in the event that users of ISPs circumvent their technical protections against copying, which proliferated the use of anti-circumvention technology.
[26] See Steve P. Calandrillo and Ewa M. Davison, The Dangers of the Digital Millennium Copyright Act: Much ado About Nothing?, 50 Wm. & Mary L. Rev. 349 (2008), available at: https://scholarship.law.wm.edu/wmlr/vol50/iss2/2 (last visited May 10, 2020). When proposing the DMCA, policymakers feared that over-protection of copyright holders’ interests during the early stages of the global digital age would limit the United States’ ability to adopt the internet at a rapid pace in order to keep up with other countries.
[27] SeeCalandrillo, supra note 27 at 350. See also 17 U.S.C. § 512 (2006).
[28] See, Patricia L. Bellia et al, Cyberlaw: Problems Of Policy And Jurisprudence In The Information Age, 196 (5th Edition, 2018). This book provides an illuminating discussion based on the changing landscape of cyberspace, which has provided an impetus for change in speech regulation, privacy, data security, online activity, and most relatedly intermediary liability. It suggests a cyclical pattern in evolution of law and technology, where new innovations in technology, typically located on the West coast in California, prompted a response to pull back the use of technologies under copyright laws by East coast lawmakers and courts. Bellia calls this the east-west dichotomy.
[29] Id. At § 512(b)(1).
[30] Id. At § 512(c).
[31] Id. At § 512(a-c).
[32] Id. At § 512(b).
[33] Id.
[34] Id.
[35] Id. At § 512(c).
[36] While at first glance, compliance with the DMCA is clearly feasible in cases such as, for example, an infringer who downloads copyrighted music without permission, the example is complicated with jurisdictional issues if you hypothesize infringers who are downloading copyrighted music without permission in another country, since the DMCA only applies to individuals within the jurisdiction of the United States. This is something that the advent of VPN technologies in recent times allows individuals within the United States to use technical means to download copyrighted music without permission from an internet protocol address that is located in another country, thereby making it extremely difficult for someone to truly know whether the source of infringing content is in another country or within the United States, thus complicating the DMCA’s jurisdictional issue even further.
[37] A proper reconsideration of the DMCA would require looking beyond just the DMCA and into the fundamental policies behind the Copyright Act, and posit whether those policies are truly being furthered in the advent of new technologies. Given the immense volume of new technologies that are introduced each day, one should posit the purpose behind the new technologies’ development. Usually a new technology is developed in response to solving a specific problem. By focusing the inquiry on this, the DMCA can address technologies in wholesale based on the purposes that they were created for. For example, the developer platform GitHub allows developers from around the world to collaborate on projects based on a specific purpose, so any problematic new technologies that are difficult to understand or place within the framework of copyright infringement could be resolved by inquiring what problem the new technology was made to solve. This could shift the focus away from an unproductive fixation on the technical aspects of the technology into a broader view, thus allowing policy to be shaped around these broader purposes.
[38] SeeJonathon Penney, Privacy and Legal Automation: The DMCA as a Case Study, 22 Stan. Tech. L. Rev. 412-486 (2019). The existing scholarship argues for a need for more empirical research to understand and explore the impact and effectiveness of legal automation and its implementation, since automated algorithmic enforcement poses serious risks for civil liberties and human rights by allegedly suppressing freedom of expression and speech that may actually not be infringing.
[39] Penney, supranote 38 at 417. Some scholars have warned against completely automated legal governance processes as it could reduce the freedoms and autonomy of individuals, suggesting that such criticisms could be grounded on the basis of the 14th Amendment’s guarantee of due process. The rationale is that completely automatic processes fail to consider various complicated aspects of copyright law, such as fair use, where there is no real standard to be set and courts typically provide rulings on a case-by-case basis. Although fair use is a complicated subject, the author of this article believes that advances in machine learning, especially with the proliferation of open source resources such as Google’s TensorFlow and GitHub, have brought such an idea closer to reality. In fact, machine learning algorithms, combined with neural networks, could feasibly reach a point where they are able to predict fair use cases in the future with better precision than humans are capable of. They could also uncover new patterns of analysis and rules that judges could never have thought of without extensive amounts of precedent. On the other hand, the fact that computer algorithms could drive the future of jurisprudence could also raise the same due process issues.
[40] Penney, supranote 38 at 417. Several scholars who also support machine-enforced law also admit that such a framework raises serious privacy and autonomy issues, as well as constitutional issues. Although the use of automation as a means of enforcing law is not a new phenomenon. For example, the United Kingdom uses an extensive network of CCTV cameras in order to enforce its laws, and in China, the city of Shenzhen has an even more extensive 5G camera network that can automatically detect even the most mundane violations such as jaywalking and automatically identify, notify, and fine the culprit. This raises very important privacy issues such as those contemplated by the earlier mentioned scholars, but the technologies are here to stay, so these issues must be addressed.
[41] See Marjorie Heins & Tricia Beckles, Brennan Ctr. For Just. N.Y.U. Sch. L., Will Fair Use Survive? Free Expression In The Age Of Copyright Control, 24-27, 36 (2005). The authors discuss the DMCA’s chilling effect on classroom experiences, where certain materials that are used for solely educational purposes may be automatically detected as infringing, thus resulting in the suppression of learning opportunities for students despite a clear fair use purpose. See also Nunez v. Caribbean Int'l. News Corp., 235 F.3d 18, 21 (1st Cir. 2000). The United States Court of Appeals for the First Circuit provided a standard for “fair use” secondary works, where a work is protected and considered fair use if it “adds value to the original—if it is used as raw material, transformed in the creation of new information, new aesthetics, new insights and understandings, because such a work contributes to the enrichment of society.”
[42] See Womack Caroline, Revenge of the Retaliatory Takedown: Let's Plays, Fair Use, and an Unstable DMCA, 18 37 Quinnipiac L. Rev. 4 (2019). Womack encourages lawmakers and judges to genuinely consider understanding the technical aspects of new technologies as they are introduced in litigation and submitted for public comment in rulemaking hearings. She calls for a revision of the fair use doctrine in order to comply with the DMCA, or vice versa. See supra note 42 at 24.
[43] Penney, supranote 38 at 416. The existing scholarship argues that there is a need for more empirical research to understand and explore the impact and effectiveness of legal automation and its implementation, since automated algorithmic enforcement poses serious risks for civil liberties and human rights by allegedly suppressing freedom of expression and speech that may actually not be infringing.
[44] Penney, supranote 38 at 443. One survey in the article studies how DMCA notices impact Google Blogger and Twitter users. In examining 500 Google Blogger accounts and 500 Twitter accounts that have received such notices for content posted on their website, as well as the DMCA notices themselves, the study discovered that internet users are less likely to engage in a range of legal online activities or will be more careful and cautious about how they engage in such online activities after receiving a DMCA notice. This suggests that (1) there seems to be a huge lack of empirical data due to the small sample size relative to the actual number of DMCA requests that these websites process on a daily basis, (2) that the result of getting a DMCA violation is necessarily psychological in nature, and (3) that the resulting behavior after receiving a DMCA request seems to lend itself to a duality of both good and bad results. Therefore, there is a very huge demand for larger sample sizes in order to account for statistical bias. This information can be invaluable in determining the efficiency and effect of DMCA takedown requests in the future.
[45] Penney, supranote 38 at 444. In a second study, users were notified that their content was in violation of the DMCA, when in fact their content was not. The result was that many recipients were deterred from pursuing the dispute any further, and would rather just have their video shut down. This has the effect of enabling abuse of the DMCA system, and shows that the fear of criminal or civil penalties, coupled with the awareness of users that their ISPs are monitoring their actions, increases the chances that the DMCA takedown structure could be easily abused by internet trolls or competitors.
[46] Penney, supranote 38 at 418. Noting an exponential increase in the number of DMCA notices sent to online service providers. The article attributed this to the use of “bots” and automated processes, powered by machine learning and algorithms, that constantly scan the internet for infringing content and automatically sends a request for removal.
[47] Brown, supranote 11 at 777. The author notes that uncertainty regarding copyleft licenses will never be resolved by customs or judicial decisions, rather calling upon Congress to legislate on the issue. This constant outpacing of technology in relation to laws will continue until lawmakers can find a better way to understand and/or classify these technologies.
[48] See New State Ice Co. v. Liebmann, 285 U.S. 262, 52 S. Ct. 371 (1932)."[The] state may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country." Since YouTube’s user base is larger than most states, one could argue that platforms such as YouTube have become the new forum for public dissent, and can be a uniquely useful source of learning in implementing real-life equivalents of new provisions and laws pertaining to copyright.
[49] See Sony Corp. of Am. v. Universal City Studios, Inc., 464 U.S. 417, 104 S. Ct. 774 (1984). The case was decided almost 46 years ago under a “substantial non-infringing uses” standard. One would have a lot of trouble finding any sort of technology today as not “fair use” under an analysis that only considers Sony. All if not most new technologies involve some form of substantial non-infringing uses, so this provides further support for a revision.
[50] See Womack, supra note 42 at 1. The author notes a new internet sensation of “Let’s Plays” wherein content creators are able to record themselves playing video games in exchange for generating ad revenue. A complimentary if not replacement platform is Twitch, where a lot of users that have moved from YouTube have gone to Twitch in order to generate more views and directly receive donations for their live streams. These live streams provide a new layer of difficulty in deciding fair use cases, as it is quite difficult and very frequent that a user may have accidentally something copyrightable in their background.
[51] Press - YouTube, Youtube.com (2020), https://www.youtube.com/about/press/ (last visited May 11, 2020).
[52] Developers - YouTube, Youtube.com (2020), https://developers.google.com/youtube/ (last visited May 11, 2020).
[53] The Rise of YouTube, The Artifice, The-artifice.com (2020), https://the-artifice.com/the-rise-of-youtube-2/ (last visited May 10, 2020).
[54] About - YouTube, Youtube.com (2020), https://www.youtube.com/about/ (last visited May 11, 2020).
[55] Hunt, supranote 7 at 199. Hunt describes YouTube’s evolution from merely hosting videos to the introduction of user-friendly features such as its “favorites” feature, which allows users to mark videos to make them easy to find again. This took the YouTube brand from being merely a video hosting service into a recognizable brand that was associated with its content.
[56] See Elkin Koren, et. al., Is It Time to Abolish Safe Harbor? When Rhetoric Clouds Policy Goals, 3-50, Stan. L. & Pol’y Rev. (2019). YouTube’s structure allowed for it to benefit from network effects in two distinct and equally powerful ways. The direct network effects resulting from increased numbers of users on the platform brought about the platform’s popularity, but another cross-side network effect between the advertisers also increased the number of participants that were willing to pay for YouTube to advertise for them. See also Koren, supra note 56 at 43.
[57] See Koren supra note 56 at 43. Furthermore, the power of this feedback loop can go in the other direction. If users were to abandon YouTube in favor of pirated content or subscribe to premium, ad-free services, then the revenues generated from advertisements would decline, resulting in less advertisers wanting to pay YouTube for advertising services, resulting in a drop in users, and so on. Koren posits whether this was a contributing factor that helps explain why YouTube was so lackluster in monitoring and taking down infringing materials.
[58] Press Release, Sec.gov (2020), https://www.sec.gov/Archives/edgar/data/1288776/000119312506206884/dex991.htm (last visited May 11, 2020).
[59] See, e.g., YouTube Partner Program Policies, YouTube Help, https://support.google.com/youtube/answer/1311392?hl=en (last updated Jan. 25, 2019); How to Earn Money on Your Videos, https://support.google.com/youtube/answer/72857?hl=en (last visited May 11, 2020). YouTube’s partnership program launched in 2007, and was offered only to a limited few. This included YouTube’s most popular users, which consisted largely of video game companies, universities, and production houses. In late 2007, it opened up the Partnership Program to everyone, on an application basis, but only approved “users who have built a significant audience on YouTube on the basis of video views, subscribers, comments, etc. By 2010, the Partner Program had reached 15,000 participants. In 2012, YouTube formally expanded the Partner Program worldwide, and allowed almost any creator to qualify for partnership with YouTube. See also The YouTube Team, Being a YouTube Creator Just Got Even More Rewarding, YouTube Creator Blog (2012).
[60] See How to Earn Money on YouTube, YouTube Help, https://support.google.com/youtube/answer/72857?hl=en (last visited May 11, 2020). YouTube users can make money from a variety of methods, such as advertising revenue, channel memberships, merchandise shelves, selling “super chat” subscriptions, and through YouTube Premium revenue. Each feature used to make money has its own set of eligibility requirements in addition to subscriber and view count requirements, and these additional sources of revenue are offered subject to YouTube’s discretion.
[61] See Danny Wadeson, Gamertube: PewDiePie and the YouTube Commentary Revolution, Polygon (2013), http://www.polygon.com/features/2013/9/6/4641320/pewdiepie-youtube-commentary (last visited May 11, 2020). The most prominent YouTube channel, PewDiePie, is run by Felix Kjellberg, who began his career by recording himself playing video games while reacting in outrageously dramatic ways. Additionally, Kjellberg managed to raise significant amounts of money for charity in capitalizing his fame. Kjellberg recently raised $450,529 for Charity: Water to celebrate reaching 10 million subscribers.
[62] See Jessica Vogele, Where’s the Fair Use? The Takedown of Let’s Play and Reaction Videos on YouTube and the Need for DMCA Reform, 33 Touro L. Rev. 589, (2017). A “Let’s Play” typically features a small video in the corner of the screen which shows the player’s reactions and commentary as the game is shown on the larger portion of the video. These videos can also be streamed live, but this is more commonly referred to as a livestream and differs from a typical Let’s Play because it is happening in real-time. From a quantitative standpoint, the Let’s Play videos are, by a majority, made up of the video game content creator’s materials. However, from a qualitative standpoint, Let’s Plays are watched primarily because of the commentator’s own style of play. Arguably, the delivery of the video game content creator’s game is also controlled by the commentator. Most Let’s Plays have evolved into live streaming as well, and this brings about another consideration that the qualitative value of these videos come from the audience’s ability to donate and interact with the commentator in real-time.
[63] SeePewDiePie, YouTube (2013), http://www.youtube.com/user/PewDiePie/videos?sort=p&view=0&flow=grid (last visited May 11, 2020). PewDiePie’s channel has grown to over 104 million subscribers. Only seven years ago, his subscriber count was at 14 million. PewDiePie’s channel currently has over 25 billion total views since he created the channel in 2010. This equates to about $1 million in revenue per month just from YouTube. A look at PewDiePie's most popular videos shows that horror games are his most successful videos. This is, in large part, because he has over-the-top reactions to the horror elements that lead to some comedic moments.
[64] See Mejia, Sebastian, Fair Play: Copyright Issues and Fair Use in YouTube 'Let's Plays' and Videogame Livestreams (2013). Available at SSRN: https://ssrn.com/abstract=2368615. Mejia’s article discusses litigation and past cases involving Warner and other entities besides YouTube. Additionally, Warner Music signed a licensing deal with YouTube to allow its users to use Warner’s copyrighted material, and attributes the unfavorable deal, from Warner’s standpoint, to the safe harbor provisions of the DMCA. For Warner Music, the safe harbor laws provided YouTube with leverage in the deal to pressure Warner into an agreement, since YouTube could still make use of Warner’s music in the absence of a deal, they just wouldn’t be able to monetize it. This highlights an important shift in power between owners of copyrighted musical works and other platforms. For the first time, YouTube was able to leverage its platform power to set the pricing for copyrighted work. This paradigm shift is currently the norm, with iTunes, Spotify and other platforms taking the same position as YouTube did. See also Kafka, Peter Warner Music signed a new deal with YouTube, and promptly complained about YouTube, Vox News (2017), https://www.vox.com/2017/5/5/15564782/warner-music-youtube-deal-google-dmca.
[65] See e.g., Viacom Int’l, Inc. v. YouTube Inc., 940 F. Supp. 2d 110 (S.D.N.Y. 2013), (concerning the DMCA’s §512 safe harbor issue on knowledge); Lewis v. YouTube, LLC, 244 Cal. App. 4th 118, 197 Cal. Rptr. 3d 219 (2015), (concerning the issue of specific performance pertaining to video views and subscriber counts for wrongfully removed videos); Kinney v. YouTube, LLC, 2018 LEXIS 7702 (Cal. App. Nov. 14, 2018), (concerning a claim brought by a YouTube channel owner due to his channel being terminated pursuant to YouTube’s Terms of Service); Tur v. YouTube, Inc., 2007 LEXIS 96517 (C.D. Cal. Oct. 19, 2007), (concerning a copyright owner’s action for copyright infringement and unfair competition against YouTube); Bartholomew v. YouTube, LLC, 2017 LEXIS 7562 (Cal. App. 2017), (a musician claimed libel because YouTube notified her audience and users about the musician’s violation of community guidelines and YouTube’s Terms of Service which was part of YouTube’s takedown procedure).
[66] See Koren, et. al., supranote 56 at 32.
[67] See Koren, et. al., supra note 56 at 32.
[68] See 17 U.S.C. §512(c). As a “service provider”, YouTube may avail itself to §512(c). In 2013, YouTube updated its Content ID system that caused Let’s Play users to be inundated with content ID matches and subsequent copyright strikes. See also Mejia, supra note 64 at 3.
[69] See About - YouTube, Youtube.com (2020), https://www.youtube.com/about/policies/#community-guidelines (last visited May 11, 2020). YouTube bans content that contains nudity or sexual content, harmful or dangerous content, hateful content, violent or graphic content, harassment and cyberbullying, spam, misleading metadata, and scam content, threats, impersonation, violations of child privacy, and of most importance is copyright. YouTube asks users to “respect copyright. Only upload videos that you made or that you’re authorized to use. This means don’t upload videos you didn’t make, or use content in your videos that someone else owns the copyright to, such as music tracks, … without necessary authorizations.”
[70] See Koren, et. al., supranote 56 at 32. Arguably, given the wide range of video players and the lack of judicial opinions speaking to the technical aspects of the immense variety of these video players, this could result in a finding that there isn’t a real industry-wide standard.
[71] See Koren, et. al., supra note 56 at 3.
[72] See Koren, et. al., supra note 56 at 3. In addition to YouTube’s takedown page, YouTube also runs a Content ID program in order to comply with the DMCA on an automated basis. This system allows YouTube to identify large amounts of copyrighted material and have copyright owners set the parameters for the consequences of finding such infringing material. See Also Copyright Infringement Notification, What is the issue?, Youtube.com (2020), https://www.youtube.com/copyright_complaint_form (last visited May 11, 2020).
[73] See YouTube Ads, Youtube.com (2020), https://www.youtube.com/ads/ (last visited May 11, 2020). In addition to providing ad revenue for advertisers, YouTube has recently unveiled a new ad program for business owners to advertise their small operations. This, along with the various other ad-based features that YouTube currently offers, clearly satisfies the “direct financial benefit” aspect of the DMCA. YouTube’s ads are run on nearly all videos on the mobile platform, whereas YouTube is aware that most users watching videos on the desktop platform run ad-blocking software to skip the advertisements. In essence, YouTube’s growing dominance in the advertising revenue space is growing at an exponential rate, and has even teamed up with parent company Google’s AdSense program, which allows owners of websites and publishers to run advertisements in exchange for a share of ad revenue.
[74] See Viacom Int’l, Inc. v. YouTube Inc., 940 F. Supp. 2d 110 (S.D.N.Y. 2013). The court found that YouTube had no actual knowledge of specific instances of infringement, but this was prior to the introduction of Content ID. One could argue that, given that copyright owners must provide YouTube with a copy of their copyrighted material in order for YouTube to “fingerprint” it, that YouTube’s level of knowledge now rises to that of actual knowledge. See also Koren, et. al., supra note 56 at 33.
[75] See Mejia, supra note 64 at 3. YouTube explicitly created Content ID as a means to automate YouTube’s DMCA compliance given the immense scale of videos being uploaded onto the website each day. Despite this, Content ID has created some controversy in wrongfully identifying some content that was in fact not infringing or relatively permissible either through permission of the copyright holder through external agreements outside of YouTube, or in some cases, the uses were relatively clearly fair use. This highlights an issue with Content ID’s grappling with the issue of fair use.
[76] See Womack, supra note 42 at 1. Facially, the DMCA requires YouTube to comply with all takedown requests in order to satisfy its duty as a service provider, and requires YouTube to ‘respond expeditiously’ in removing such content. Given the large volume of media that gets uploaded onto YouTube each day, it would cripple YouTube’s business model, as well as the interests of all content creators that benefit from ad revenue share, to simply hold YouTube liable for all acts of infringement. This is the theory of market failure, based on the idea that Copyright is meant to provide incentives for content creators to continue making new and creative works. If an injunction was granted, the entire market for ad share revenue would be decimated.
[77] See Viacom Int’l, Inc. v. YouTube Inc., 940 F. Supp. 2d 110 (S.D.N.Y. 2013). Again, the author of this article notes that it is possible that Content ID, as it currently is being used on YouTube, may require a reconsideration of the court’s ruling. See also Mejia, supra note 64 at 3. Mejia’s article discusses the dispute between Nintendo and YouTube content creators, wherein Nintendo’s copyrighted mascot, Mario, was found to match a large volume of “Let’s Play” videos using the Content ID system. This highlights the shortcomings of a purely automated system.
[78] See Viacom Int’l, Inc. v. YouTube Inc., 940 F. Supp. 2d 110 (S.D.N.Y. 2013). In any subsequent litigation, a court should also reconsider the issue of willful blindness during its reconsideration on the issue of actual knowledge. YouTube is fairly secretive about the exact functionality of its Content ID systems, and has updated the systems extensively since 2013.
[79] See Viacom Int’l, Inc. v. YouTube Inc., 940 F. Supp. 2d 110 (S.D.N.Y. 2013). This is yet another issue that could be reconsidered by a court on appeal, or in subsequent litigation involving YouTube’s Content ID system. The case was decided prior to YouTube’s introduction of a “Copyright School” that educates users on the copyright system. This curriculum is mandated by YouTube for content creators that receive Copyright strikes, so this could provide support for holding that YouTube does in fact have the ability to control the actions of their users, especially when read in light of YouTube’s broad discretionary powers of account termination under its Terms of Use.
[80] See Womack, supra note 42 at 1. This relates again to the issue of market failure.
[81] See Using Content ID, YouTube (2020), available at https://support.google.com/youtube/answer/3244015?hl= en (last visited May 11, 2020); See also Content Verification Program, YouTube (2020), available at: https://support.google.com/youtube/answer/6005923?hl=en (last visited May 11 2020).
[82] See Womack, supra note 42 at 10.
[83] See Womack, supra note 42 at 17.
[84] See Womack, supra note 42 at 16.
[85] As described on YouTube’s webpage: “Copyright owners can use a system called Content ID to easily identify and manage their content on YouTube. Videos uploaded to YouTube are scanned against a database of files that have been submitted to us by content owners…Copyright owners can choose different actions to take on material that matches theirs: Block a whole video from being viewed; Monetize the video by running ads against it; in some cases, sharing revenue with the uploader; Track the video’s viewership statistics”. See How Content ID Works, YouTube (2020), available at: https://support.google.com/youtube/answer/2797370?hl=en (last visited on May 11, 2020). See alsoWomack, supra note 42 at 16.
[86] See Womack, supra note 42 at 16.
[87] See Womack, supra note 42 at 16.
[88] See Womack, supra note 42 at 16.
[89] See Womack, supra note 42 at 12.
[90] See, e.g., Using Content ID, YouTube (2020), available at: https://support.google.com/youtube/answer/3244015?hl= en (last visited May 10, 2020); Content Verification Program, YouTube (2020), available at: https://support.google.com/youtube/answer/6005923?hl=en (last visited May 10, 2020); Womack, supra note 42 at 10.
[91] See Luke Karmali, Nintendo Helping to Resolve Some YouTube Issues, IGN (2013) available at: http://www.ign.com/articles/2013/12/13/is-nintendo-claiming-copyright-on-youtube-videos-again (last visited May 10 2020). As mentioned in a previous footnote, YouTube made some changes to its Content ID system that caused Let's Play producers to be inundated with Content ID matches. These changes seem to have merely reflected the settings game publishers had already placed regarding their content; many publishers, Nintendo included, have attempted to work with Let's Play producers to stop these unwanted claims. In addition to having immense bargaining power, YouTube’s automated system could also have the detrimental effect of dismantling efforts between content creators and copyright owners to come to an agreement outside of the YouTube ecosystem.
[92] See Lyor Cohen, Five Observations from My Time at YouTube, YouTube, Official Blog, (2017) no longer available at: https://youtube.googleblog.com/2017/08/five-observations-frommy-time-at.html (last visited May 10, 2020). Content ID helps rights holders find, claim and control their content on YouTube, and it has paid out over $2.5 billion to third parties. Despite this, there is a growing number of dissent among content creators that Content ID provides too much power to copyright holders, especially for the more creative video-style formats that far more increased participation and effort by content creators relative to the copyrighted material.
[93] See Womack, supra note 42 at 10.
[94] See Womack, supra note 42 at 10. Copyright owners can simply opt to have the videos automatically monetize and to allow the video to continue to be on YouTube. Rather than have the video removed completely, the owner gets the ad revenue, and the content creator gets nothing. This has stirred some controversy, especially in the realm of videos that quantitatively use a lot of copyrighted material, but on a qualitative basis, merely uses the copyrighted material as a platform. See also Mejia, supra note 64 at 3.
[95] See Womack, supra note 42 at 12. This can be problematic, especially for those copyright owners that YouTube has an alternative agenda with. For example, this article previously mentions the Warner-YouTube deal, wherein YouTube leveraged its platform position in bargaining a favorable deal for a licensing deal for Warner’s music. Since the availability of Content ID for copyright owners is solely up to YouTube’s discretion, the platform gains arguably unfair power and leverage in choosing which copyright owners can take advantage of Content ID.
[96] See Womack, supra note 42 at 15, 17. Disputes between content creators and copyright owners may be escalated to federal court by agreeing to federal jurisdiction, as well as certifications under penalty of perjury between both parties. This, in essence, tables the fair use discussion until the dispute is brought to court, something that content creators may not want to do given the costs of litigation. While communications between the parties may be used as evidence in subsequent litigation, there is no guarantee that the content creator will actually pursue the claim in court, given the uncertainty of the fair use standard as well as the low chance of actually receiving a large damages award for the video. Further, a lot of these parties are not familiar with the already uncertain and flexible fair use standard. The case-by-case analysis of each case, compounded against the billions of videos uploaded each day on YouTube, would definitely take up more time than simply consenting to taking down the video and avoid a copyright strike. See also Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 577 (1994), “The task [of fair use analysis] is not to be simplified with bright-line rules, for the statute, like the doctrine it recognizes, calls for case-by-case analysis.” In essence, the fluidity of the fair use standard, which was originally mandated for purposes of furthering the broad policy goals of copyright, has been also used by YouTube to encourage resolution of disputes using their process, even mandating the process before the parties can take the dispute to court. This places more power in the platform, which could be problematic depending on each case and the nature of YouTube’s private interests, to which we cannot ascertain.
[97] See Womack, supra note 42 at 15. See also Using Content ID, YouTube (2020), available at: https://support.google.com/youtube/answer/3244015?hl= (last visited May 10, 2020).
[98] See Womack, supra note 42 at 14. See also Using Content ID, YouTube (2020), available at: https://support.google.com/youtube/answer/3244015?hl= (last visited May 10, 2020).
[99] See Womack, supra note 42 at 16. See also Using Content ID, YouTube (2020), available at: https://support.google.com/youtube/answer/3244015?hl= (last visited May 10, 2020).
[100] See Womack, supra note 42 at 15. See also Using Content ID, YouTube (2020), available at: https://support.google.com/youtube/answer/3244015?hl= (last visited May 10, 2020).
[101] See Womack, supra note 42 at 16. See also Using Content ID, YouTube (2020), available at: https://support.google.com/youtube/answer/3244015?hl= (last visited May 10, 2020).
[102] See Womack, supra note 42 at 15. See also Using Content ID, YouTube (2020), available at: https://support.google.com/youtube/answer/3244015?hl= (last visited May 10, 2020).
[103] See Womack, supra note 42 at 15. See also Using Content ID, YouTube (2020), available at: https://support.google.com/youtube/answer/3244015?hl= (last visited May 10, 2020).
[104] See Womack, supra note 42 at 15. See also Using Content ID, YouTube (2020), available at: https://support.google.com/youtube/answer/3244015?hl= (last visited May 10, 2020).
[105] See Womack, supra note 42 at 15. See also Using Content ID, YouTube (2020), available at: https://support.google.com/youtube/answer/3244015?hl= (last visited May 10, 2020).
[106] See Womack, supra note 42 at 15. See also Using Content ID, YouTube (2020), available at: https://support.google.com/youtube/answer/3244015?hl= (last visited May 10, 2020).
[107] See Womack, supra note 42 at 15. See also Using Content ID, YouTube (2020), available at: https://support.google.com/youtube/answer/3244015?hl= (last visited May 10, 2020).
[108] See Womack, supra note 42 at 17. See also Using Content ID, YouTube (2020), available at: https://support.google.com/youtube/answer/3244015?hl= (last visited May 10, 2020).
[109] See Womack, supra note 42 at 17. See also Using Content ID, YouTube (2020), available at: https://support.google.com/youtube/answer/3244015?hl= (last visited May 10, 2020).
[110] See Womack, supra note 42 at 18. See also Using Content ID, YouTube (2020), available at: https://support.google.com/youtube/answer/3244015?hl= (last visited May 10, 2020).
[111] See Womack, supra note 42 at 18. This optional setting is used by a small group of users who choose to limit their viewing experience. By default, Restricted Mode is turned off for viewers. See also Your Content & Restricted Mode, YouTube help (2020), available at: https://support.google.com/youtube/answer/7354993?hl=en (last visited May 10, 2020).
[112] See Womack, supra note 42 at 18.
[113] See BBC Newsbeat, YouTube Responds to Criticism of LGBTQ Video ‘Blocking’, BBC Newsbeat (Mar. 20, 2017), available at: http://www.bbc.co.uk/newsbeat/article/39324796/youtube-responds-tocriticism-of-lgbtq-video-blocking (last visited May 10, 2020); see also Declan Lawson, An Open Letter To YouTube About Censoring Its Transgender Creators, Huffington Post (Apr. 10, 2017) available at: https://www.huffingtonpost.com/entry/an-open-letter-to-youtube-about-censoring-itstransgender_us_58eba45ce4b0145a227cb6d7 (last visited May 10, 2020); (criticizing YouTube’s restrictions on videos involving transgender issues and urging the site to “fix videos that have been unfairly age restricted”). In addition to the other issues of centralization of power, unfair competition, possible interference with contract, YouTube’s Content ID could also, from a First Amendment standpoint, be viewed as quieting speech, despite YouTube’s position as a private-sector entity. Anti-trust issues, as well as Fourteenth Amendment due process concerns arise as well. Unfortunately, the author can only raise so many different issues in a single article. This is a good place for further research.
[114] See BBC News, YouTube bans 'medically unsubstantiated' content, BBC News (2020), https://www.bbc.com/news/technology-52388586 (last visited May 10, 2020).
[115] See Koren, supra note 56 at 50. Koren urges scholars, activists, and policy makers to learn about new innovations in technology as a way of ensuring that future reforms are able to strike that perfect balance pursuant to the original goals of copyright. The first step is to make empirical data more widely available, but the next step is for these stakeholders to take the initiative to genuinely analyze the information in order to make well-educated reforms on copyright and the DMCA.
[116] See Fitzdam, Private Enforcement of the Digital Millennium Copyright Act: Effective without Government Intervention, 90 Cornell L. Rev. 1085-1105 (2006).
[117] See Koren, supra note 56 at 50.
[118] See Fitzdam, supra note 116 at 1105.
[119] Gary Wolf et al., Who Owns the Law? WIRED (2020), https://www.wired.com/1994/05/the-law/ (last visited May 10, 2020).
[120] See Georgia v. Pub..resource.org, Inc., 2020 U.S. LEXIS 2529 (2020); (holding that legal annotations created by state legislatures are ineligible for copyright and therefore such annotations may be copied and reproduced without constituting copyright infringement).
[121] See Matthew Bender & Co. v. W. Publ'g Co. 158 F.3d 674 (2d Cir. 1998); (holding that West publications may not copyright the page numbers on federal case reports because doing so would give them an effective monopoly over commercial publication of case reports. Substantively, the page numbers did not reflect a sufficient amount of originality nor did it reflect sufficient creativity required for something to be copyrightable subject matter, since there was not many other alternatives available for page numbering).
[122] See Penney, supra note 38 at 481.
[123] See Penney, supra note 38 at 482.
[124] See Penney, supra note 38 at 482.
[125] See Brown, supra note 11 at 781.
[126] See Brown, supra note 11 at 779.
[127] See Brown, supra note 11 at 778.
[128] See Brown, supra note 11 at 779.
[129] See S. Rep. No.105-190, at 1-2 (1998); (“The ‘Digital Millennium Copyright Act of 1998’ is designed to facilitate the robust development and world-wide expansion of electronic commerce, communications, research, development, and education in the digital age.”).
[130] See Penney, supra note 38 at 481.
[131] See Penney, supra note 38 at 481.
[132] See Penney, supra note 38 at 481.
[133] See Penney, supra note 38 at 481.
[134] See Brown, supra note 11 at 777.
[135] See Brown, supra note 11 at 778.
[136] See Penney, supra note 38 at 481.
[137] See Penney, supra note 38 at 481.
[138] See Penney, supra note 38 at 481.
[139] See Penney, supra note 38 at 481.
[140] For my final footnote, I wanted to draw readers’ attention to current developments in this new intersection between law and computer science. For years, Lexis and West have just sat on their huge databases of information, doing nearly nothing genuinely innovative to refine their systems. For years, LSAT and Bar prep companies have monopolized test materials and charge heavily for access to their information. Only recently have there been efforts to push back against this unnecessary monopolization of legal information. Casetext is a notable example of a private corporation utilizing artificial intelligence to automatically apply information contained in .pdf documents to speed up the efficiency of legal research and automate legal drafting. Non-profits such as Justia, Cornell’s Legal Information Institute, and the Free Law Project are really taking on an admirable role in leading the charge to make legal data free for the public. Recently, the LSAC has made all LSAT questions free, and teamed up with Khana Academy to develop a fully free web application for future LSAT test takers. As the effects of COVID-19 forces many of us to go into self-quarantine, a lot of recent law student graduates and law students are left with a lot of time on their hands, so the opportunity to jumpstart a large-scale effort has never been greater. In researching this article, the author learned basic Javascript coding, and developed his first machine learning algorithm for analyzing judicial opinions, all thanks to YouTube’s very helpful how-to videos and Google’s open-source TensorFlow. While this article’s focus is on copyright reform, this technology has the potential to really empower and push our justice systems towards an ideal reality where each citizen is empowered through legal knowledge.
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