Dear YouTube,

Over the last few months, I have become increasingly aware of a fatal flaw in YouTube’s copyright enforcement regime, which frequently leaves non-infringing videos blocked for supposed copyright reasons with literally no recourse for the user and no way to dispute the copyright block.

Contrary to YouTube's stated policy of requiring copyright owners to escalate to a DMCA notice to get a video removed after the user files a Content ID dispute, YouTube is now allowing copyright owners to "confirm" their claim against your video, after which the video is permanently blocked with no recourse to either a Content ID dispute or a DMCA counter notice. Instead, the "view copyright info" page will simply give a message saying, "All content owners have reviewed your video and confirmed their claims to some or all of its content."

Here is how YouTube claims the Content ID dispute process works. According to this post on YouTube's official blog from April, 2010, http://youtube-global.blogspot.com/2010/04/content-id-and-fair-use.html:

When you receive a notice in your account via Content ID, we tell you who claimed the content, and direct you to a form that lets you dispute the claim if you so choose.

If you believe your video is fair use, check the box that reads "This video uses copyrighted material in a manner that does not require approval of the copyright holder." If you're not sure if your video qualifies, you can learn more about fair use here.

Once you've filed your dispute, your video immediately goes back up on YouTube.

From this point, the claimant then makes a decision about whether to file a formal DMCA notification, and remove the content from the site according to the process set forth in the DMCA.

In the vast majority of cases I've seen, however, that is NOT what happens. Rather, once you file a Content ID dispute, the copyright owner  simply "confirms" their claim against your video, it is re-blocked by Content ID (not a DMCA claim), and that's the end of it. There is no further option to file a Content ID dispute, and if you file a DMCA counter-notice on the video it will be rejected because the video is blocked by Content ID, not a DMCA claim. So in the end, the user is left with their video remaining blocked with no recourse.

To be perfectly clear what I am talking about, I created the following flowchart, comparing the way YouTube says the process works with the way it actually works in practice:

Because of this website, I have received numerous messages from people stuck in this situation, and I have experienced it myself on numerous occasions--only once with a video that was blocked in the U.S., but frequently on videos blocked in other countries. You can read the full account of my experience here: http://fairusetube.org/articles/20-falling-through-the-cracks.

Videos blocked in other countries I can live with, since those countries may not have equivalent concepts to the Fair Use Doctrine in the US. But in the US, if somebody legitimately believes their video is protected by fair use, they should have the ability to effectively dispute a copyright block on YouTube, and the copyright owner should at the very least be forced to file a formal DMCA notice to have it removed after the user has disputed the automated Content ID block. Then if the user still disagrees they can file a DMCA counter-notice and have the video restored, at which point the copyright claimant should have to get a court order to permanently enjoin the video. Once again, this is the way YouTube *publicly claims* the system works, but not how it is done in practice.

I have been trying to get YouTube's attention on this for months now with no success. I managed to contact Mike Masnick of the blog TechDirt, who put me in contact with Annie Baxter and Aaron Zamost of YouTube. They said they'd get back to me three weeks ago and I haven't heard from them since. Last week, the blog TorrentFreak ran a story on the flaws in YouTube's Content ID system after I contacted them about this issue, and I was quoted in the article, which you can read here: https://torrentfreak.com/youtubes-content-id-piracy-filter-wreaks-havoc-110908/.

As far as I can tell, this problem has been going on for a long time, and YouTube has done nothing to address it. Frankly I think it is absurd that through the Content ID system, YouTube gives copyright claimants the sole authority to decide whether or not to accept a user's claim that their video is not infringing--essentially making them the judge in their own case (might there be a little conflict of interest there?). I am posting here in hopes that I may finally get someone's attention at YouTube who can rectify this problem. I ask only that you either fix the Content ID dispute process so that it actually does what it claims to do and forces copyright claimants to escalate to a DMCA claim after a Content ID dispute has been filed; or else be honest with users and tell them that there is in fact no effective means to dispute a Content ID block. Just stop being hypocritical and saying the process works one way when it doesn't.

Sincerely,

Patrick McKay
Law Student, Regent University School of Law
Administrator, FairUseTube.org
YouTube User: DarkLordofDebate

Last Updated on Thursday, 19 July 2012 13:57