TL:DR version: We need to track and expose rightsholders who ignore fair use and hold them accountable. If you have been abused by a rightsholder, let me know. We will gather our forces and strike back against those who need to be reined in. Individually, the liability these rightsholders are exposed to is immaterial, but strength lies in numbers: the aggregate damages they are exposed to would give them pause from their aggressive abuse of Content ID.
There’s a spectre haunting the media landscape. Not a day goes by where media organizations aren’t under attack either financially, legally, or by governments worldwide. To prevent today’s nascent media organizations from falling prey to the forces that explain today’s landscape, it’s paramount to understand the importance of having strong, independent media organizations who have the unbridled ability to report, review and comment on the people and things that are in the news and public eye.
For the past twelve years, WatchMojo has done something remarkable: we have built a business based on the doctrine of fair use. Early on the vision was to inform and entertain with a video on every topic, and over time it’s evolved to create a video on every topic of interest to our community of Mojoholics: history, music, movies, geography, gaming — you name it, we likely have a video on it. That means relying on third-party material and fair use. Throughout however, we have not only avoided any lawsuits but also managed to develop great relationships with rightsholders while retaining editorial independence to curate, rank and comment on people and topics fans are passionate about.
It’s a testament to the art of diplomacy and the science of legalese. It hasn’t always been easy, though. Our videos aren’t only watched by millions online as entertainment, they’re used by educators and students to complement K12 curriculum and by translators in ESL programs.
Purpose of Copyright & Fair Use
The purpose of copyright is to promote the arts and sciences; and fair use exceptions provided in the Copyright Act do serve to further promote the arts and sciences. Indeed, news, parody, commentary and review further the popularity and appeal of the underlying copyrighted works. In turn, an entire layer of additional editorial has flourished on top of existing works, with each new work becoming its own copyrightable material.
The past fifty years have seen revolutionary changes with the advent of the personal computer, the Internet, the World Wide Web and of course, mobile devices. The genie is out of the bag, and it’s hard to turn back time. Recognizing that innovation would disrupt traditional means, the Digital Millennium Copyright Act was born; and with it came the four safe harbors that allow platforms to host billions of content pieces, with safeguards to protect them under certain conditions. Preceding these four safe harbors were the four tests of fair use, which have more or less existed for decades, if not centuries and millennia. In fact, some of the most venerable publications were rooted in fair use: Time magazine started off a weekly digest summarizing the New York Times.
Sometimes technology allows things the law does not necessarily permit, Napster being an example. Sometimes, it’s more ambiguous. Back in 2005, YouTube burst onto the scene and took off. YouTube benefited from the DMCA and saw its fortunes soar, culminating with Google’s $1.65 billion acquisition in October 2006.
NBCUniversal frowned when the site’s popularity was enhanced by viral hits like SNL’s “Lazy Sunday,” Viacom took it one step further and sued Google for a cool billion dollars. That lawsuit went nowhere. Today, Viacom realizes it may have been better served embracing, instead of fighting, YouTube.
YouTube Strives for Neutrality, and Does a Fairly Good Job of It
However, the YouTube of that era is a very different beast than today’s YouTube. YouTube pays out massive amounts of money to rightsholders. Its Content ID tool is a revolutionary system that tracks and claims media at scale by analysing, matching, managing and monetizing it. It’s not perfect, and yes, I’ve been a vocal critic of it, both privately and publicly, but the reality is, given YouTube’s scale and the complex dynamics between rightsholders on one side and creators on the other, Content ID is part of the solution, and not the problem.
The problem is its abuse, and those who abuse it, be they rightsholders or intermediaries. And it needs to stop.
YouTube is caught between a rock and a hard place, delicately trying to balance the two perspectives and rights, while remaining neutral. While I personally think that as business policy, YouTube is tilted slightly more in favor of rightsholders, to be fair, YouTube has remained neutral, and has done a more-than-admirable job weaving that balance.
Yes, critics have a legitimate gripe that YouTube has inadvertently given rightsholders the ability to abuse and weaponize YouTube’s Content ID, rendering the rightsholder lawyer, judge and jury; when in fact, the law requires the rightsholder to first demonstrate copyright infringement, then seek damages. The way YouTube functions, it’s admittedly “guilt before innocence,” but, as it’s YouTube’s platform, they can choose how to tip the scales.
So while I realize that YouTube is in a delicate situation between rightsholders and creators like WatchMojo, their business decisions do not necessarily reflect the steps required by law, which dishonest or enterprising claimants are circumventing. WatchMojo is the house that YouTube built, and since I made a decision to create our editorial around fair use, then I accept that navigating Content ID is part of that equation.
What I no longer accept is letting abusers go unchecked.
The fact remains, frivolous takedowns are nothing short of copyright encroachment at best, and censorship at worst, giving organizations the ability to stifle the media’s ability to produce commentary, criticism and reviews.
Just a few examples, if I may?
Don’t show up to gun fights with spoons
Last year an intermediary named Orfium asserted that because it owned the rights to the song used in the Avengers movie trailer, they could claim 100% of revenues we derived in our Top 3 Things You Missed in the Avengers Trailercommentary and review video. It was hogwash, but they kept at it until we prevailed. I know for a fact that they sit on many claims that are not valid from a legal perspective, but the channels they’re claiming against fear receiving a copyright strike, benefitting Orfium unlawfully.
When FIFA takes down our 10 FIFA Corruption Scandal FactsNews video, they’re effectively moving beyond any pretense of copyright infringement and using Content ID as a de factocensorship tool. Naturally we held our ground and they moved on. But the notion that an organization can silence us has “chilling effects.”
When Discovery acted like fair use didn’t exist, I asked the person I was dealing with if I should email Chairman and CEO David Zaslav and ask him if he agreed, since he’d just invested in GroupNine whose NowThis property was highly reliant on fair use. Magically, they changed their tune.
When an intermediary representing rightsholders would ignore our assertion that the underlying rightsholder had accepted our position and continued to claim our videos aggressively, I sent them screen grabs of employee reviews that suggested management encouraged false claims, a major no-no within the confines of the DMCA process. They largely ceased bothering us.
Indeed, sometimes you need to show an edge, just a bit of crazy. But this isn’t a laughing matter.
Last month, Universal Music Group’s Republic Records unit sent us not one but four emails to promote Drake’s new album Scorpion. We’ve been around for a decade, we’re known for top 10 lists. I have over ten thousands emails from Universal over the years, including one notable one: an apology over aggressive claiming and a recognition that we’re allowed to do what we do. We proceeded to publish Top 10 Songs From Drake’s Scorpion, and weeks later, Reservoir Media (who claims to own publishing rights to at least one of the songs) assumed the role of judge and jury and decreed unilaterally that they could claim 100% of the revenue and/or block us from monetizing our commentary review video generated from our commentary video. Now never mind that in a legal sense, Universal Music “induced” us to create a video that Reservoir now wants to control (I’d call that copyright entrapment), the issue is why does the claimant get to assume we’re guilty unilaterally, hijacking our revenue, and having us go to them, hat in hand, asking them to release the claim. Fair use is a defense one may argue, but we’re presumed guilty out of the gate. Reservoir’s founder Golnar Khosrowshahi and I come from the same country of origin. My takeaway from Iran’s recent history is not to let anyone or anything impede on your most basic freedoms. Once you do, it’s a slippery slope. Hearing Ms. Khosrowshahi’s rhetoric, it sounds wonderful to wrap yourself up in defending the rights of musical artists, but when you ignore the law, abuse technology and try to intimidate and encroach on media organizations’ rights to comment and review on the arts, you’re no different than the Mullahs in my humble opinion. I’d love to be a fly on the wall at the Khosrowshahi family, where her cousin Dara heads up Uber now. I sure do wonder if Golnar is as empathetic to the rights of cab drivers worldwide as she is to those of the artists she claims to defend, but who by and large support the spread of their music in commentary and review works such as ours. But, I digress.
While Reservoir is proving egregious in their stance, I would state that based on my recent experience, even though major labels like Warner Music and Universal Music Group have gone on record to support our editorial and agree with our legal position, it’s not surprising to see them being most aggressive in ignoring our rights and abusing the technology. What’s ironic about it is Doug Morris’ legendary “dog kidney” quote which tells you everything you need to know about the labels fate — past, present and future.
Carrots and Sticks
Reality is all sane and non-greedy organizations realize the law is on our side and we’re better off working together. A Japanese media company came around once we respectfully stood our ground and subtly pointing out the hypocrisy of marketing its IP to North American audiences but then ignoring North American copyright laws, which permitted our genre of programming. A few months later, we went from looking at possible litigation to a win-win relationship. That’s common sense, since rights holders would agreethat the best way to grow the value of your IP is to… expose people to it: “One of the easiest ways for new fans to immerse themselves in DC mythology is by introducing them to Batman.”
But within the Google universe, YouTube may feel compelled to tilt the playing field to the constituencies who once held it at ransom and aimed lawsuits at it.
I wish YouTube realized that the 2018 edition of YouTube isn’t the 2006 edition of YouTube and doesn’t owe Big Media anything. One would hope that given YouTube’s huge scale and market share, YouTube’s risk management didn’t come at the expense of creators, but that’s life. Mind you, times are changing, and while “the First Amendment protects us against governmental intrusions; it does not (yet) protect speech on privately owned platforms. Still, the Internet and social media increasingly function as a modern public square.” To be clear, I would not call YouTube a monopoly, but to argue that YouTube as a video platform is anything but a utility with an obligation to the public is by now a foregone conclusion.
However, because YouTube is militantly striving to remain neutral, they would not tell us if these were isolated cases or not. So we have to keep fighting, and we do.
Fair enough, but a quick search on Google and Twitter suggests this wasn’t the first time Orfium or Reservoir ignore Fair Use defense. Instead of adhering to the findings of UMG v Lenz, they allegedly intimated the creators by threatening further action.
So, perhaps it’s time to take matters into our own hands and expose these claimants and see if a pattern of over-aggressive claiming exists. If it does, they should lose this privilege that YouTube has given them and face damages. In Canada for example, we have a Notice-and-Notice system, and not a Notice-and-Takedown system, meaning if their takedown is frivolous, they are on the hook for a creator’s loss of revenue.
Instead of venting to YouTube, we creators need to come together, share information on which rightsholders and intermediaries are guilty of Content ID abuse.
We need to fight back.
Our position is that fair use is an extension of freedom of the press and freedom of expression. We do not distinguish between fair use and our right to comment. We also do not think that fair use should be limited to negative commentary alone. That we produced a piece of commentary that casts underlying work in a positive light is inconsequential.
Media organizations have operated the way that we have in this matter for decades, but what Content ID has done is give powerful technology that allows rightsholders — some, not all — to overstep their rights. In Lenz v. Universal Music Corp, the courts concluded that someone issuing a takedown must take into account the possibility that the new work may be fair. You are simply paying us “lip service” while abusing ContentID. Not only is that court case ignored, most claimants are quick to reiterate their claims and takedowns despite being given ample arguments and examples that the new created work may be fair.
Fair Use Is a Powerful Force, Let’s Not Take It for Granted
Our videos are prima faciereview and commentary. But through ContentID, a claimant can roll the dice and issue claims hoping we get intimidated. Fair use isn’t black or white, but it’s not very complicated either. A common misconception is that commercial use nullifies fair use. That’s simply untrue, as entire businesses operate on news, parody and commentary.
When a news organization relies on fair use, they are allowed to generate revenue and the underlying source does not claim the revenue.
When Saturday Night Live parodies a given rights holders, they are allowed to generate revenue and the underlying source does not claim the revenue.
When Entertainment Tonight does commentary on new movies and shows clips of a given movie, they are allowed to generate revenue and the underlying source does not claim the revenue.
How does our practice differ from when the New York Times or Entertainment Weeklyruns a review, criticism or commentary of a given book while featuring excerpts, and then runs advertisements around that commentary?
And the courts have concluded as such (Bouchat v. NFL; Suntrust Bank v. Houghton Mifflin Co.; Campbell v. Acuff-Rose Music), finding that, in some instances, commercial use may be fair.
Granted, how you monetize fair use is more critical than simply if there is monetization.
What Is Commercial Use in the Context of Copyright?
In fact, according to Suntrust v. Houghton Mifflin Co., publishing a work for free on the Internet, and making it accessible to readers/viewers to consume at no cost, is not deemed commercial in the context of copyright (assuming it doesn’t affect the resale value or marketability of the underlying work).
In the Drake example, Reservoir admitted that they benefited from our video and wanted it to remain online, but argued they had a right to earn 100% of the views or revenues derived from it or block us from monetizing it. That’s simply false as we created a commentary video with original additional commentary and have the right to monetize the way we did. But, an inexperienced creator may believe their claim to be true. If you are creating a parody, commentary or news piece, you are allowed to monetize it in certain cases, and YouTube’s practice of selling advertisements before some, not all, of your views is certainly kosher. It’s critical to note that the loss of potential revenue is not the same as damages, in the context of fair use and copyright matters. Ultimately, the balance of inconvenience is in favor of the creator and not the rightsholder.
Fair Use Is Freedom of Speech
But it’s really not about the money, but rather, the principle of free speech.
I was speaking to a record label executive who said that rappers like Drake, Kanye and Jay Z don’t like how their music is used online when discussing commentary videos. I laughed, thinking that a musician cannot and should not dictate who can comment and review on their works. That’s the whole point of a free press. If today a musical artist decides who can and who cannot comment (while featuring snippets of their music), tomorrow a politician will seek to prevent the media from commenting and replaying their words, and so forth.
When Fair Use Isn’t Merely a Defence, but a Right
While fair use is a defense against accusations of copyright infringement, in the landmark 2004 Canadian Supreme Court case, CCH Canadian Ltd v Law Society of Upper Canada, the courts noted that fair dealing was to be regarded as an “integral part” of the Copyright Act rather than “simply a defence”. The fair dealing exceptions were characterized as a user right, and must be balanced against the rights of copyright owners. In interpreting “research,” the Court stated that it “must be given a large and liberal interpretation in order to ensure that users’ rights are not unduly constrained.” Consequently, it is not limited to private and non-commercial contexts. In Canada, in fact, only a party with “Interest” (i.e. exclusive license or ownership) can file a copyright infringement lawsuit, which is why I get additionally aggravated when an intermediary encroaches on our rights.
Fight the Power
When, in 2006, I was sued by News Corp. (over a matter unrelated to copyright), I fought back and trounced them. Over the years, that experience taught me that no matter how large the claimant, if you are not doing anything illegal, you can prevail. But litigation is costly. Today we have the willpower, knowledge and resources to fight back; and I realize many creators, large and small, may lack those, so if you have had experiences with overly-aggressive claimants, especially intermediaries, let me know.
We need to track claimants who ignore fair use and hold them accountable. If you have been abused by a rightsholder, tell me, let me know. We will gather our forces and strike back against those who need to be reined in. Individually, the liability these rightsholders are exposed to is immaterial, but strength lies in numbers, and the aggregate damages they are exposed to would give them pause.
Indeed, there have even been at least two instances where a creator fought back: Harvard professor and fair use guru Lawrence Lessig (v. Liberation Music) and Michelle Phan (v. Ultra Records). But those cases escalate to litigation because the community of creators didn’t band together.
It’s time to assert our rights before they’re washed away.
This is just the beginning.