Once upon a time, I decided to create a YouTube channel.
It seemed like a great idea. I could combine my love of multimedia and writing while focusing on one of my favorite topics as subject matter: music.
I decided to put together a channel that would focus on creating video essays which took an entertaining look at popular music history. I certainly wasn’t the first person to do so. I’d been inspired by some great content creators to give it a try myself.
I was optimistic. Until I met YouTube’s impossible copyright system.
The Trouble With YouTube’s Copyright System
For a full week, I devoted myself to making a YouTube video. It was slow going. I had to pick up several new skills along the way. I wrote the script, narrated the voice overs, put together the audiovisual assets, and learned how to edit it all together. It was difficult. By the end of it, I was pretty proud of myself and what I’d accomplished.
My original plan was to make a ten minute video. When it was all said and done, I had nearly twenty minutes. I’d also spent about $150 licensing software and video assets.
I eagerly uploaded it to YouTube. I waited excitedly to send it to my friends. I’d already told some of them it was on its way.
But instead of joyously sending the link out, when my upload completed I was greeted with a bit of bold text that said Blocked Worldwide.
I want to go into all of the details of what it is like to have your video flagged by YouTube’s copyright system, but since there is a lot of drudgery involved, we’ll dig into it below.
The bullet point is this: YouTube’s copyright system leads creators to believe they will be sued for honest work and allows major corporations carte blanche over what content appears on YouTube.
I spent over a month navigating YouTube’s copyright system only to come out completely empty handed. My issue was never properly resolved and is now stuck in limbo with a broken web interface and a YouTube copyright support team which communicates through short sentences of broken English tacked onto their copy-and-pasted form letter.
Knocked Down By Content ID
I was a little bit dismayed by my video being blocked, but I’d also anticipated this. I knew going into it that I was using copyrighted media in my videos. My video was a short documentary on Jimi Hendrix and his musical influences. It included clips of Hendrix and various other artists.
I’m hardly the first person to create such a video. There are several other videos on YouTube which provide video essays on musical artists and incorporate their music and video clips. In fact, there are even a few on Jimi Hendrix that make use of some of the same content I used in my video.
I’d been targeted by an automated system. YouTube’s Content ID picked up on the fact that my video included copyrighted material and automatically blocked it from being displayed. “No problem,” I told myself. “This just needs to be reviewed by a human.”
It seemed fortunate at the time that there was a button I could press to have my video actually looked at by a human – specifically, someone from the company who manages the copyright. I happily hit the “Dispute” button thinking it would all be set right. Not just once, either. My video had a total of 7 Content ID matches that I needed to dispute: five for Jimi Hendrix content, one for Bob Dylan content, and one for Muddy Waters content.
A Few Words On Fair Use
If you’re wondering how I ever thought I could get away with using any copyrighted media in my video, the answer is Fair Use. To quote copyright.gov:
Fair use is a legal doctrine that promotes freedom of expression by permitting the unlicensed use of copyright-protected works in certain circumstances.
The “certain circumstances” which satisfy Fair Use are a matter of debate. The only way to truly settle if a particular use of a work qualifies as Fair Use is by going to court and getting a ruling from a judge.
However, Fair Use is widely recognized as a legitimate means of making use of copyrighted works. Millions of YouTube videos rely on protections granted by Fair Use to create their content.
Looks Pretty Fair To Me
YouTube explicitly acknowledges their support of Fair Use and offers guidelines for creators to follow. In fact, they even claim to provide legal aid for select Fair Use cases in court. I was careful to follow all of these guidelines while making my video. Let’s take a look at just what the guidelines are and how I believe my video satisfied them.
- Purpose and Character of Use: The best case for using copyrighted material, according to the Fair Use guidelines, is one in which the copyrighted work is used “transformatively,” i.e. you’ve incorporated the copyrighted material into a larger original work. My video satisfies this. It is nearly twenty minutes long, includes original video, images, audio, narration, and creates a unique experience that cannot be confused with the original material. Because my YouTube channel is not eligible for monetiziation, the purpose of the video is non-profit education.
- Nature of the Copyrighted Work: The use of music clips in educational music instruction and history videos has a wide precedent across videos on YouTube and other content providers. Because my video only used short segments of songs, it does not act as a substitute or facsimile of the experience of listening to the original copyrighted work. The music is not used as a background element but is rather the focus of the video. All copyrighted material used is accompanied by original educational narration and original video editing.
- Amount of Copyrighted Work Used: Copyrighted material should only comprise a small portion of the video. In my case, the length of the copyrighted material in dispute constituted roughly two and a half minutes of a twenty minute video.
- Effect of Use on Value of Copyrighted Work: My video was educational and encouraged viewers to purchase and listen to the original work. Full credit was provided on-screen during use of copyrighted segments. The video description included complete credits and links to purchase all relevant albums and materials on Amazon.
A Long And Useless Road
My initial Disputes for the Hendrix content were rejected less than 24 hours after filing. I was given a second option to Appeal, which allowed me to provide more information to support my claim. I was happy to do so and sent off my Appeal, hoping once more that there was an actual route to resolving this issue through YouTube’s interface.
Instead, it was a waiting game. According to the terms of the Appeal, the copyright holder had 30 days to respond or the Appeal would default in my favor. After waiting 25 days, I was hopeful that the video had slipped through the cracks and would be approved. Instead, just five days before the deadline, my Appeals were rejected.
This time my video wasn’t just casually blocked. I was given seven days to manually remove it before it would be taken down from YouTube and my account given a Copyright Strike, a penalty with serious impacts on a YouTube creator’s account. If I did not remove the video myself, I would have an option to file a Counter Notification.
I decided to take no action and left the video up. After seven days, I received a Copyright Strike and immediately filed a Counter Notification.
Counter Notification: The Legal Intimidation At The End Of The Road
After my Disputes and Appeals had been rejected, the final recourse YouTube offered was to submit a Counter Notification. On the Counter Notification page, YouTube goes out of their way to let you know that this is SERIOUS BUSINESS.
The Counter Notification isn’t like the Dispute or the Appeal that I went through. Let’s break it down a little bit:
- Dispute: Because my video was flagged by an automated system (Content ID,) I was offered the chance to file a Dispute, effectively a request for a human representative of the copyright holder to review my video to see if they believe it was correctly blocked by Content ID.
- Appeal: After my Dispute was rejected, I was offered the option to Appeal that decision. From my view of the YouTube interface, the only difference was that I was allowed to provide a short explanation with my Appeal. I am not sure if the Appeal was reviewed by the same people who handled the Dispute, or if they passed it to a higher authority within their office.
- Counter Notification: Since my Appeal was rejected, my final option was to file a Counter Notification. To do so, I had to provide my full name, address, and a digital signature, all so that the copyright holder would be able to file a lawsuit against me in federal court should they reject the Counter Notification. According to YouTube, after filing the Counter Notification, the copyright holder would have ten business days to provide YouTube with evidence that they filed against me in court. If they did not provide evidence of filing, my video would be reinstated and my Copyright Strike removed.
Smoke & Mirrors?
All the language about Counter Notifications is dire. They spare no expense detailing how you will be sued in ten days if the copyright holder decides to press their claim.
I mulled it over a bit. I decided to file my Counter Notification. Here’s where things get a little sticky.
As I mentioned previously, my video originally had seven copyright claims. By the time I was filing my Counter Notification, the Bob Dylan claim had been released by the copyright holder from my initial Dispute, and the Muddy Waters’ Dispute was never responded to, defaulting in my favor.
That left the five Hendrix claims. According to the language on YouTube’s website, the Counter Notification that I was filing would be held against all claims on the video from the same copyright holder. This was necessary, as I was only given the option to file a Counter Notification against one claim before being locked out of viewing any details on that video at all.
I waited ten more business days. I was very excited to receive this e-mail:
If you have any sense of foreshadowing, you probably already know what’s next. Sure enough, despite their website clearly stating otherwise, the Counter Notification had only released a single copyright claim from my video. It was still Blocked Worldwide.
But wait, there’s a twist.
The Interface Is Broken!
After my Counter Notification processed, my video was cast off into some kind of copyright purgatory. Now the interface is frozen. Where it used to give me options to file a Counter Notification, there is nothing. It says “Takedown Pending” adjacent to my four remaining copyright claims, but unlike before it doesn’t give me any indication of when it will be taken down.
I don’t think it will.
At this point, I have followed YouTube’s entire process patiently and diligently. I was led to believe that the Counter Notification would be applied to all five of the claims. It was not. Now I have no option for filing additional Counter Notifications against the remaining claims.
E-mail? Does That Work?
Not really. Not at all. YouTube was nice enough to provide me with an address to contact the copyright holder’s dispute division, but only a month into the process after my Appeal had been rejected. I sent them a few e-mails and never heard back.
Next, since the Counter Notification had only applied to one claim, I e-mailed YouTube’s copyright department and got an unhelpful copy-and-paste response which instructed me to complete the process I had already been through:
Since receiving that message, I have repeatedly sent e-mails requesting to file Counter Notification(s) for all the claims remaining on the video.
Those e-mails have gone ignored.
And there it is. The end of the road. I tried to work with their system only to be stonewalled after a month and a half of waiting out the bureaucracy.
The reason this situation exists at all is because YouTube wants to keep their hands clean. To keep themselves free from liability, YouTube cannot and will not intervene in these disputes in any manner.
That is why – by appearances, anyway – the Counter Notification process exists. YouTube is effectively saying “okay, we’ll serve as the middleman to connect these two parties with the legal system.”
I was willing to go to court to argue my Fair Use case. According to YouTube’s own policies, it is now the responsibility of the copyright holder to pursue legal action to keep my video blocked from YouTube.
Instead, my video remains Blocked Worldwide and, apparently, there is next to nothing I can do about it.
That’s The Way She Goes, Boys
Honestly, maybe my video isn’t Fair Use. Maybe I was too over zealous in creating it and used too much copyrighted material. Maybe the copyright holder is totally right in enforcing their claim.
But I want to know.
If it was something that had to be determined in court, I was prepared to go through with the process. I can respect YouTube not wanting to play judge and jury in these matters, however there has to be some mechanism to ensure they are enforcing their own policies.
Go and watch nearly any YouTube video. You will find it interspersed with clips of songs, bits of video, copyrighted images and characters, and so many other examples of “transformative” uses of copyrighted works. Some YouTubers’ rose to prominence “reacting” to copyrighted content they watch nearly in its entirety. Can you tell where the line of Fair Use is drawn?
Neither can I.