YouTube’s latest scandal involves pedophiles.
YouTube’s roots are in piracy, but over time its size has led it to face challenges with brand safety, algorithm trends, and much more. We sometimes conflate the causes of a given problem, but as I continued to dive in to how some rights holders abuse ContentID and unlawfully claim billions, and thought of possible solutions, I realized that there’s a simple solution that would solve many of YouTube’s challenges.
The solution would be to introduce two tiers of accounts: one “user” level which would be open to all, and one “professional” which would require certain things. While on the surface this sounds heretical, this would, in fact, be a continuation of YouTube’s evolution.
In 2012 YouTube dropped ‘Broadcast Yourself,’ signalling a more professional future, but it doesn’t seem to have the confidence to admit that Wall Street Journal‘s YouTube channel shouldn’t be in the same bucket as little Joey’s channel who uploaded his first video.
That year it also evolved its copyright policies to reflect the DMCA where a claimant couldn’t simply verbally disagree to keep a video down, they had to prove a court filing signaling it was going to pursue the matter through the courts. It’s also changed on monetization – Google Preferred is yet another example where it treats the upper 1% of channels differently than the rest. So if YT separated channel classes, then it would not need these massive ill-fated “one size fits all” solutions that are woefully inept for the platform’s current reality.
What I am proposing isn’t very controversial or complex, but the devil’s in the details. It also solves other problems.
In the same way that I pay for the privilege (not right or obligation) to have TSA pre-check, and Google itself has the Google Preferred segmented advertising pool, it’s time for YouTube to separate classes of channels for those who use the platform in a Professional manner, versus those who get on it as Users.
“User” level accounts remain open to all individuals and organizations, but eventually channels can enrol in a “Pro” level account. Requirements and guidelines include:
1. Separate Entry Level Accounts From Professional Accounts
To manage the sheer volume of accounts, YouTube can separate certain number of channels by (any/all) subscribers, views, watch time, etc.
The key is that revenue monetization would go into effect at the Pro level; and not the entry level user accounts where volume is too low, early on, to generate meaningful revenue anyway. However, since YouTube is a for-profit endeavor, AdSense is the blood that fuels Alphabet Inc.’s development, and on YouTube, the algorithm ultimately becomes the arteries through which Youtube flows money. By mixing up “popularity” with “monetization,” YouTube is doomed to find itself in one scandal or another. What drives “bad actors” who peddle in hate speech, pedophilia and harmful content? The messaging or the money?
2. Indemnification is First Step
Currently both User and Pro accounts indemnify YouTube for any damages in YouTube’s standard contract. Notwithstanding that such contracts of adhesion have little/no leeway for negotiation, the agreement also does give channels an apparent right to upload and monetize their videos. Such agreements require uploaders to have “required” licenses, meaning that if something is exempt from Copyright via Fair Use, YouTube does not object.
3. Errors & Omissions Insurance
To address possible abuse, YouTube should require Pro channels to obtain and demonstrate proof of Errors and Omissions insurance, which serves many purposes:
a) In their E&O declarations such channels should disclose to their insurance providers that they carry Fair Use copyright risk. We have done this for over a decade when our new partnership with MySpace required it (at that moment I wondered why YouTube didn’t require it).
b) By requiring E&O, YouTube isn’t merely indemnified, it’s protected in the event a channel does get sued for copyright infringement.
c) Such insurances are renewed each year: our insurance company checks our channel and content and gives us a pass, sensing that our videos are prima facie fair use. If they came on the channel and saw hard core infringement (full works) then naturally they’d ask a few questions before renewing the coverage, exposing themselves.
Let’s face it, 99% of channels that cause YouTube problems would never receive Errors and Omissions insurance, and would thus not fall in the monetizable lane. If they do not monetize, they likely won’t be as promoted by the algorithm.
4. Why An Eye For An Eye Won’t Work
Many channels that are abused by rights holders’ claims ask why rights holders don’t have 3-strikes-you’re-out rule. I understand why claimants would argue they can’t have a 3-strikes cap due to the massive size of the platform; but there needs to be some pushback, as there’s zero restraint. It’s become an orgy of copyright encroachment. By having User and Pro accounts, YouTube can better manage abusive rights holders: if a claimant claims a full upload, or an individual’s upload, the impact on the channel is minimal; but by treating an individual’s channel the same way it treats a business channel, it harms the business. That YouTube’s “no carry” licensing agreements just treat partners large and small indiscriminately seem idealistic but come across naive, with a lack of consideration of partners. If a claimant issues a certain number of claims against Pro channels, there ought to be a penalty of sorts, because at that point: that is why we have courts, to address and further define the law. YouTube’s legacy is complex, but it’s on the path to be an incredibly negative one if it stays the course; just as Facebook’s legacy will be less about connecting communities and more about its use in elections.
5. Fees, Bond System and Creation of a New Organization for Copyright & Fair Use (OCFU):
5.1. A peer-reviewed, open source Wiki-powered forum to review instances of alleged copyright infringement
If claimants had to pay YouTube for anything pertaining to CID, that would create conflicts of interest and agency issues. Similarly, while I am open to paying YouTube for such a Pro account, the way we pay for a Nexus card, I understand many will not want to. I do not view these as barriers to entry for startups, but practical considerations. That said, if YouTube collected fees which went to a new Organization for Copyright & Fair Use (OCFU) whose time has come, it would be better received.
The Law needs to catch up to Technology. I have studied copyright and fair use for 13 years. There are many court cases and precedents, but, in 2019, the technology has outpaced the precedents, and it’s time for us to create a forum and mechanism to catch up. Filled with both industry representatives (pro rightsholder) and fair use (proponents) this body would not merely further define the law, but it would also help create a marketplace for intellectual property, a better version of CID (conceptually this is akin to how Netscape gave way to Chrome). To be clear, we are not saying CID is a problem, we acknowledge that CID is part of the solution, but it’s been taken to the extreme. We need to push back because someone will eventually make the case that ContentID violates copyright law, that due to it rightsholder abuse channels, and if CID is put down, then it opens a pandora’s box that takes us to the dark ages before CID where rights holders issued takedowns against everything.
5.2. Creation of a Bond system
Given the incredible growth of the platform (2 billion users) YouTube should not cap or charge claimants to issue claims on User accounts, as those tend to not be Fair Use (where someone uploads the whole song for example), but in instances where it is Fair Use, then this is where – unlike YouTube who does not want said responsibility – the OCFU can review and evaluate, giving an opinion on each item that is sent before them. While not binding the way a court ruling would be, it would give some directional guidance to encourage or dissuade a claimant from enforcing strikes, let alone pursuing claims. While costly, it would be funded by the Fees and Bond payments made by Claimants and Pro accounts.
Of the billions of claims rights holders issue, claimants may make the argument that most are against UGC content where the channel has uploaded full works. I do not think it’s reasonable to ask rightsholder to make a bond payment in these instances if YouTube collected the fees (though I am for it if there’s a workaround to that), but while claimants who automatically use CID to claim items:
- are greeted with an appeal by a channel, they would need to make a bond deposit if they choose to reject/ignore the appeal (which they would lose if they don’t pursue the matter all the way to a court trial);
- If they subsequently issue a DMCA takedown, then they’d have to leave a slightly higher deposit (which they’d lose if they fail to subsequently proceed to a trial after receiving the counter-notification). After all, when a published video is taken down for 14 business days, it loses revenue and views and never regains its potential trajectory.
To be clear, YouTube should not pocket any of this money, since they keep in escrow monies that are generated over disputed items; they can keep these Fees and Bond payments in a separate account which is then funnelled to the OCFU.
Craigslist, Google and Facebook are always trying to preserve journalism (I can think of similar mechanism to do that), but if they want to ensure they balance the rights of copyright holders with those of channels who, through commentary, criticism, news, parody, satire and transformative creations further promote the arts and sciences, then this is a possible framework to deliver justice for all.
This Is How Society Works!
I’m not proposing some kind of radical way to split an atom. This is how all of society functions!
I can pay NEXUS (aka TSA pre-check system) for the privilege, at airports and border crossings, to go through quicker lines. I volunteered to have my fingerprints taken, and offered retinal scans. It’s not an obligation, it’s not a right. The organization managing the program can remove my credentials if I misbehave: with NEXUS that means bringing a dozen oranges into the country; with YouTube it would mean uploading a full song that, for example, Universal Music Group’s marketing team sent us to preview, but didn’t allow us to upload fully. No one is asking YouTube to make a call, but if in that system a channel got 5 or 10 complaints, then it makes sense to suffer some form of punishment or have an intermediate body weigh in. More on that below.
Why YouTube doesn’t do this, both is, and isn’t, baffling. By virtue of being a user-generated content (UGC) platform, it benefits from the four safe harbor provisions of the DMCA with regards to copyright, and the Communications Decent Act with regards to hate speech. Those acts were good to players like Yahoo! But it’s been great for Google, YouTube and Facebook. But that’s basically not a valid reason to avoid doing this, as it will solve pretty much 80% of its challenges overnight (including things like monetization, hate speech, conspiracy videos, pedophilia… I could go on).
This Dual Class Account System Solves Other YouTube Problems
I don’t want to simplify matters. And I definitely don’t want to cite insurance alone as the solution to anything! But I am going to go out on a limb and guess that most of the channels that start to become popular for citing conspiracy theories don’t have insurance companies providing them with Errors and Omissions policies. And if they do, they can’t be spewing hate speech. In other words, by having two classes of accounts & requiring those in Professional level to have errors and omissions insurance, then YouTube shifts some of the responsibility to weed out unsavory channels to others. Right now, it’s impossible for YouTube to shoulder all of that by itself.
All of these channels can, and should, remain at the User level; they can surely grow over time (and given YouTube, they will) but they won’t appear overnight to be trending, monetizing, growing and then making everyone else look bad. The issue with YouTube’s one-size-fits-all strategy is that the one size doesn’t fit, isn’t sustainable, and, in the end, will — as with capitalism, the earth etc. — find itself in peril.
6. An Intellectual Property (IP) Marketplace
Once the two-tier user accounts are set up, it creates a more even-playing ground which sets up the stage for the possibility of creating a new IP marketplace. We will cover how that could work in a follow-up post. But as a first step, YouTube needs to continue to evolve and mature, and that means it’s time to distinguish an individual’s account who’s just getting started uploading and experimenting, with established organizations who adhere to higher standards. Facebook and Google ignored the reality that adopting a laissez-faire “we are only a platform” point of view is doomed to fail. Ultimately, there are differences amongst people who upload to your platform, and by ignoring that they are paying for the consequences now. It was idealistic and naive at best, or lazy and reckless at worse; either way, it’s time to evolve, or suffer the full consequences.
Subscribe to Context where we will publish part 3 next week.