The Woes of Content Creators on YouTube: The Notice and Takedown System
YouTubers are no stranger to the pitfalls of the current copyright regime. For years, content creators on the platform have been victims of YouTube’s notice and takedown system, which the platform crafted to satisfy the safe harbor requirements under the Digital Millennium Copyright Act (“DMCA”).[1] Before diving into the abuses of the system, we need to quickly explain how it works. There are two types of claims that can be made against creators: the manual claim and the Content ID claim.[2] The manual claim comes directly from copyright owners and the flagged video is instantly removed, at which point YouTube notifies the creator and the creator has the choice to either accept it or appeal it with a counter-notice.[3] The counter-notice must outline the creator’s fair use defense to the takedown notice and then YouTube must reinstate the video within ten to fourteen days.[4] On the other hand, Content ID is a computer algorithm that screens new works before they are published for alleged infringements.[5] However, unlike manual claims, Content ID claims are not accompanied by copyright strikes on the creator’s channel—rather, the strike is against the video and may include restrictions such as any revenue from advertisements being taken by the copyright owner.[6]
Now that the system has been briefly explained, we can jump into some of the abuses of it. Firstly, there are cases of bad faith manual claims where the copyright holder has not reviewed the content and claims it is infringing anyways.[7] One extreme instance involved Matt Binder, who hosts a political podcast on YouTube, and a manual claim against his scheduled livestream where he planned to discuss a recent Democratic primary debate.[8] Since the livestream had not yet occurred, there was no content to claim, so the claim was based on the title of the scheduled livestream alone.[9] Still, this claim was enough to disable livestreaming on his channel for the three months of the copyright strike’s duration.[10] While appealing a bad faith claim may remove the strike, it does not reimburse creators for the lost profits during the appeal and it does not prevent such a claim in the future since a small content creator does not have the resources to take on a big company like Warner Bros. in court.[11]
Secondly, there are countless manual claims that completely ignore the fair use of certain material. For instance, content creator Jimmy Donaldson, known as “MrBeast” on YouTube, lost around five figures on a single video for simply reciting the Bon Jovi lyric “livin’ on a prayer.”[12] Another example is that of music education channels, which include creators teaching people how to play parts of songs or breaking down how a song is constructed.[13] Despite such transformative uses, these videos are regularly victims of manual claims from record labels.[14] One YouTuber even lost all the revenue on a thirty minute video for ten seconds of jokingly humming a song.[15] These manual claims against arguably fair use videos also harm YouTube channels that focus on reviewing content, such as “The Necro Critic” who had his review of Felix the Cat: The Movie removed without the claimant specifying what portion of the video, or what at all, constituted infringement.[16]
Thirdly, there are even cases of bad actors submitting false claims against creators as a form of blackmail, leading completely legal videos to be removed and copyright strikes to be issued for no reason at all.[17]
Unfortunately, until there are consequences for these bad faith, overbroad claims, they will continue to plague content creators. Therefore, there should be a system on YouTube for creators to report these types of copyright abuses. It would also be beneficial if YouTube itself were to take a harsh stance against bad faith claims, such as by pursuing statutory damages under the DMCA against copyright owners that submit them.
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