Posted By: Emily Weiss
Jim Sterling has a thriving YouTube channel. His videos include reviews of video games, along with longer video essays on the state of the games industry. Unlike a lot of other YouTubers, Jim refuses to monetize his videos, and instead supports himself through his Patreon page. But this doesn’t always prevent his videos from being monetized.
YouTube’s ContentID system, which came into being after a multitude of copyright disputes, was intended to allow copyright holders to “fingerprint” and claim their copyrighted material when it was used in other videos. As a result, some third parties, like Nintendo, could claim their copyrighted content through the ContentID system and monetize the video themselves.
Jim didn’t like this. So he decided to put copyrighted footage in his videos from multiple companies. Lo and behold, they claimed their content through the ContentID system. But since different companies had different ideas about the monetization of the video, the end result was that Jim’s videos ultimately remained without advertisements. Jim called his solution the “Copyright Deadlock.” But was his solution legal?
Copyright and ContentID
YouTube has become a popular destination for content creators. It’s free, easy to use, and creators can even make money off of their videos by allowing other companies to run advertisements on them. Sometimes, this revenue is enough for YouTubers to live on, and a few create content on the website full-time.
But YouTube is also responsible for reproducing a vast amount of copyrighted material, often without authorization. In Viacom v. YouTube, programming juggernaut Viacom sued YouTube for the display of over 79,000 clips that infringed Viacom’s copyrights. Throughout appeals, the court eventually held for YouTube and dismissed the case because YouTube had safe harbor under the DMCA, but before the case could be brought up on appeal again, the parties settled.
In response, YouTube created the ContentID system to allow copyright holders to claim their content on the site when it was used in unauthorized videos. Copyright holders can mute, block, track, or even monetize videos that use their copyrighted content.
Once a copyright holder’s content is flagged by the ContentID system, YouTube puts a hold on the revenue that video might be generating. If the copyright holder wishes to monetize a video that contains their content, they may also do so – running ads on another’s video and taking the revenue for themselves. If a person wants to challenge a ContentID claim, even to argue fair use, they can appeal. Until recently, such appeals would stop all revenue generation on the video, and if the creator of the video lost such an appeal, their channel would receive a copyright strike. If a channel gets three strikes, they’re out – the channel is disabled and all videos are deleted. This creates an incentive for video creators to remain silent, even when their ad revenue is disrupted by ContentID claims.
Unfortunately, since ContentID is an automated system, defenses to the infringement that the copyright holders have to allege – like fair use – aren’t considered. In fact, copyright holders can get a video taken off of YouTube without any legal proceedings. In order to comply with the DMCA, YouTube endeavors to resolve copyright disputes quickly, and in doing so, it heavily favors the copyright holder. Video creators may need to file up to two appeals to get their videos back online after copyright strikes. The balance of power is striking – a small creator, perhaps just a single person, trying to assert fair use on a video claimed by a huge multinational company. The process is arduous, disruptive to revenue, and probably not financially worth it for the creator.
Derivative Works and Fair Use
This raises some interesting questions in the context of copyright in derivative works and fair use. Section 103 of the Copyright Act allows for copyright in derivative works, which means people can have copyrights in content using or based off of other copyrighted content, so long as that basis is legal. Section 107 details fair use: which allows those who are not copyright holders to use and display copyrighted works in specific instances, without infringing the copyright.
Let’s assume for a moment that Jim is a Let’s Player – he plays video games, records his gameplay and commentary, and then posts the video with the commentary on YouTube. The game publisher might own the copyright in the game, but Jim has arguably created a derivative work by adding his own commentary and gameplay choices to the game. Fair use is a more difficult hurdle, but Jim can probably clear it. He is playing the game for entertainment value, and his use might be sufficiently transformative (his choices and added commentary) so that it can be characterized fair use. However, this is far from a clear answer. Let’s Plays are a relatively new form of commercial entertainment, and the video game industry is only recently beginning to take notice.
But Jim isn’t a Let’s Player, he’s a video game journalist. He reviews the games he talks about on his videos, often using the video to explain a point or complaint he has about a particular game. He often uses other pictures, graphs, and even video clips of himself to punctuate his videos. Even if Let’s Plays may not be squarely within fair use, Jim’s video reviews appear to be more completely within its scope. So if Jim’s videos are more clearly fair use, and most definitely a derivative work, does a company have the right to monetize his content if it contains small clips of copyrighted material?
The Copyright Act contains no exclusive right to profit off of copyrighted content. YouTube is the entity that allows this, not copyright law. Fair use is meant to curb this. Copyright holders can’t make fair users take their content down, or force ad revenue from it, because fair use supersedes exclusive rights. This is because copyright is meant to benefit the public. If the public can’t talk about or engage with copyrighted material without infringing copyright, it is detrimental to the public, not beneficial.
Jim was tired of dealing with continuous ContentID claims. Jim wanted his videos to remain ad-free, and copyright holders continued to monetize his videos because they contained short clips of copyrighted material. So he came up with a workaround.
He called it the “Copyright Deadlock.” Jim took notice of which clips got flagged by ContentID, and deliberately put clips he knew would get flagged, which had nothing to do with his reviews, into the video. As a result, multiple different companies would flag the video and block each other from monetizing the content. Jim’s videos would remain ad-free, and the companies would apparently have to fight among themselves to resolve the copyright claims. Jim even created a list of “ContentID exploiters” to help others “deadlock” copyrights.
Jim and others have repeatedly stated that this kind of “deadlock” has amounted to deliberate infringement in order to exercise fair use rights. But was it infringement?
Unless the review discusses or uses the disparate copyrighted elements used in a video (like a random 80’s synth song in a video about Nintendo’s newest release) in a transformative way, this kind of use might be infringement. In fact, Jim is trying to infringe or at least implicate copyrights. Unless the many copyright holders have some sort of claim on the content he uses, the deadlock would not work. Even if his use of the original content he wishes to review or criticize most likely is fair use, the rest of the content might not be.
There is a strong argument to be made for Jim’s fair use, though. The use is clearly transformative – adding background music to a review as the reviewer speaks over it is clearly different than the song by itself. Jim is not using the music for a commercial purpose either: he is a journalist. And though the video might contain the entire song, Jim’s use clearly doesn’t interfere with a market or potential market for the original. Thus, this is probably fair use, and thus not copyright infringement.
YouTube’s ContentID system makes it easy for copyright holders to remove content that contains copyrighted material. As a result, it is unlikely these holders will eventually sue the people who actually put the videos up – it’s far too much hassle. Therefore, it is unlikely a large company would take the time to sue Jim (though some small developers have sued him), who clearly has a strong fair use defense. As a result, it may be that courts never have to address this question squarely.
Jim’s use, even though he calls it infringement, will likely be legal thanks to fair use – and it should have been all along.