Disputing YouTube Content ID Takedowns

As part fo the Digital Millenium Copyright Act of 1998, content service providers (such as YouTube) are given safe harbor from prosecution if they take certain steps to prevent copyright infringement. Unfortunately, this has led to a "shoot first and ask questions later" approach on YouTube's part. If you do any sort of video assignments that require students to post to YouTube, you will most likely have to dispute a Content ID automatic takedown. Content ID is YouTube's automated system for flagging copyrighted content. It searches over 20 hours of video footage a minute to look for cpyrighted media "footprints." While it is a marvel of modern technology, the system is imperfect and tends to skew toward the side of major media companies, rather than individual consumers or producers. 

A few caveats:

1. It's important to note that Fair Use is ony an affirmative defense; that is, it can only be invoked if a copyright holder has accused you of copyright infringement. In the context of YouTube's Content ID system, what you're essentially doing is telling a human somewhere that the automated system has made a correct match, but it was ok for you to use the media in the first place. 

2. It's also important to note that this is a legal matter. If you dispute the claim, the copyright holder can sue you. However, the cpyright holder can sue you even without your dispute, as the Content ID system is only a way to identify possible infringers. This threat of litigation is scary, and it is most often what frightens students and instructors away from exercising their free speech rigths. While you should not interpret this lesson plan as legal advice, it's important to teach students the value of flexing their free speech muscles. If you don't practice these rights, they quietly go away. 

3. This step in the process is only to ensure that a human reviews the reasons the video was flagged and taken down. After review by a human, the copyright holder may still issue a DMCA takedown notice, at which point you may dispute even that. This takedown notice counts as a strike against your YouTube account. Three strikes, and YouTube freezes your account and deletes all your videos.

As outlined in the Copyrighjt Act of 1976, Fair Use consists of four factors:

1. The purpose and character of your use. If you have somehow transformed the nature of the original by using it, your use is more likely fair. Commentary, parody, reporting, and education are some uses that tend to fall on the Fair Use side. Most likely, your video has some educational aims, as it was created for a course. 

2. The nature of the copyrighted work. Fair Use protects factual works more than fictional ones. If the original work was a clip from a major romantic comedy, then your use is less likely fair. This doesn't mean that you cannot use clips from fictional works. It only means that this factor may not be in your favor. 

3. The amount used from the copyrighted work. Shorter is better, but this is a qualitative assessment. Use only the portion ofthe work needed to get your point across. Rarely is use of an entire song or video considered Fair Use. 

4. The impact of your video on the market. Does your use of the copyrighted work affect its value? If you are making money off of your creation, your use is less likely Fair Use. In the case of YouTube, an example that isn't Fair Use would be using an entire song to drive traffic to your channel where you have monetized the account (provided advertising). Because your video was created for a class, though, chances are you are not making money off of it. 

For this lesson, you may want students to read about Fair Use from the US Copyright Office or Stanford's summary of Fair Use cases.

When students write papers for an audience of one, the teacher, there isn't much risk in running up against copyright law. However, in an increasingly connected world, student expressions collide with media companies' interests. Discussing Fair Use in the abstract is good, but actual practice of free speech in the "real world" beyond academia can have consequences. If we are going to prepare our students to communicate in the 21st century, we must not only have conversations about these risks and rewards, but we need to practice this communication as well.