Copyright Infringements: Exploring Fair Use Policies on YouTube
Copyright infringement and fair use are critical issues for YouTube creators, especially ones who primarily work with content they do not own. This research investigates how copyright is understood and navigated by YouTube creators from the genre of commentary YouTube. The investigation sought to uncover discourses by creators through a genre-specific, iterative, and inductive content analysis of 18 YouTube videos. We have found that creators mainly address the topics of monetization, appeal of a claim, YouTube absence, and claimed content. We have found these approaches and overall discourse to relate to broader issues of platformization of cultural content, specifically how entanglements of different actors, such as users, platforms, and legislative institutions, produce a system that is difficult to navigate. With our findings, we hope to shed light on a process of cultural production which, while resulting in extremely popular and relevant content, is increasingly complicated and limiting.
YouTube, Platform Governance, Copyright Laws, Fair Use Policies, Content Moderation, Popular Culture
By Marta Ceccarelli, Paola Gardino, Maria Vittoria Ravaioli
As new technologies continue to emerge, governments and authorities must rapidly create, modify, and enforce regulations to ensure conformity and safety for users navigating online platforms (Eggers, Turley & Kishnani 2018). A challenge faced by authorities today is the notion that web spaces inherently transcend regional laws as they cross-national and international borders (Tanneeru 2009), thus making legislation challenging to create and enforce. This study contemplates the implementation of copyright law on the contemporary digital landscape and the introduction of fair use policies as a direct consequence. In its most basic definition, fair use refers to any copying or repurposing of copyrighted material done for a transformative purpose; this includes commenting, criticizing, and parodying any original content (Stim 2019).
The notion of fair use on YouTube has been subject to scrutiny in the past decade as the platform has not provided adequate clarity on how to practice it. The battle over online copyright infringement was expected to be resolved decades ago. The United States Congress recognized the necessity for updating and improving copyright laws in the late 1990s, consequently enacting the Digital Millennium Copyright Act or “DMCA” (Solomon 2016, 237). The DMCA established a carefully calibrated compromise between the rights of copyright owners and those of online companies and content creators, ensuring that both parties were moderated (Seidenberg 2009, 47). Although unassailable at the time that it was instated, the law has not been altered since, while internet platforms such as YouTube have grown exponentially. The DMCA’s failure to modernize to fit the twenty-first-century media landscape bears heavy repercussions for users and creators operating in the new media environment. In the context of the copyright and fair use regulations on YouTube, new legislation is crucially needed to cater to the user and content creators’ needs as the platform continues to evolve. Due to the outdated nature of the DMCA, the legislation fails to enforce clear and precise guidelines, often resulting in users’ malpractice of the law when navigating digital platforms.
Copyright infringement has established itself as one of the most pressing constraints to video production for YouTube creators. The danger of having a video demonetized or permanently removed from the platform due to a copyright strike is high especially for ones who employ external content for their own videos, and “copyright remains at the centre of industry struggles for power and control” (Burgess and Green 2018, 44). YouTube has historically struggled to develop precise and homogeneous automated copyright moderators; therefore, manual fraudulent or weaponized copyright claiming has become an issue for the platform’s content creators (Sands 2018). Excessive copyright striking can cause severe problems for YouTube creators. It can lead to suspension of revenues and, in extreme cases, result in a permanent ban from the platform.
In April 2016, YouTube personality Matt Hoss filed a civil action lawsuit against husband-and-wife team Ethan and Hila Klein, also known as H3H3 (BBC News 2017). H3H3 Production is a commentary YouTube channel, a genre that is based on a critical replication of other individual’s content. Plaintiff Hoss filed the lawsuit under three significant claims: misrepresentation, copyright infringement and defamation. The court concluded that the reaction video H3H3 Productions uploaded on YouTube constituted under fair use, despite it replicating a large portion of Hoss’s copyrighted content (Carrington 2018). Furthermore, Judge Katherine Forrest ruled that “the defendants’ comments regarding the lawsuit are either non-actionable opinions or substantially true as a matter of law”, and for this reason, the plaintiff’s defamation claims failed. Ethan Klein subsequently posted a video celebrating their monumental win, proclaiming that “this is a landmark case, not just for us, but the wording the judge put in is going to strengthen fair use across YouTube”. This lawsuit had profound repercussions on the future of copyright on YouTube as it established a lawful precedent for future legal disputes. Although YouTube copyright laws continue to be ambiguous, this lawsuit has shed light on the situation.
This study investigates the discourse of copyright infringement and fair use policies on YouTube. Through a qualitative content analysis of 18 videos, we explore how YouTube content creators understand copyright enforcement laws on the platform and how they navigate this exceedingly technical operation system. Our study offers valuable insights into how platform moderation systems such as copyright bylaws influence cultural producers such as YouTube content creators.
In recent years, the concept of platformization has been developed to explain how platforms have become central organizers of different spheres of life. Most relevantly, Poell, Nieborg, and van Dijck defined it as “the penetration of the infrastructures, economic processes, and governmental frameworks of platforms in different economic sectors and spheres of life […] the reorganization of cultural practices and imaginations around platforms.” (2019, 5). Rather than being independent entities, platforms construct a sort of ecosystem which, at least in the European/North American context, is currently dominated by the so-called Big Five: Google, Amazon, Facebook, Apple, Microsoft (GAFAM) (van Dijck, Poell, and de Waal 2018, 15). YouTube is a connective platform owned by Alphabet. This umbrella corporation encapsulates all of Google’s products and services, making it part of one of the most influential platform corporations worldwide. Through the frame of platformization, platforms have been identified as complex, multi-sided markets in which the interests of several actors intersect (Poell, Nieborg, and van Dijck 2019). Connective platforms such as YouTube depend on creators to provide products or services, in this case, videos, rendering video producers platform complementors. But they also depend on actors such as advertisers to make monetization possible. YouTube is then a multi-sided platform orchestrating the relationships between different actors, from end users to advertisers. This includes relations to the judiciary system, in particular the one of the United States. While operating on a global scale, YouTube must then respond to the legal limitations set and enforced by the US legal system.
Theories of platformization have also addressed how cultural products are inherently contingent on the fast-changing platform ecosystem (Nieborg and Poell 2018, 4289). Because of their role as platform complementors, digital creators are incentivized to optimize their production in the interests of other actors of the multi-sided market, making platform distribution and monetization significant constraints in content production (ibid., 4287). YouTube creators, often referred to simply as YouTubers, have been defined as social media entrepreneurs who professionalize video production of original content while creating and closely interacting with a community (Kaye and Gray 2021). Professional YouTube creators depend on monetization systems dictated by the platform, making them particularly susceptible to changing governance.
Copyright infringement, then, is a central issue for YouTube creators. According to the platform, when rights holders submit legal and complete takedown requests, the account posting the contested video will receive a ‘strike’. After three strikes, the account may be terminated and content removed from the website (Youtube 2021). While this policy is in place to safeguard content, YouTube’s system of copyright enforcement is “notoriously prone to error” and “largely insensitive to exceptions to copyright such as fair use or fair dealings.”(Kaye and Gray 2021, 2).
The approach by Kay and Gray (2021) was taken as a point of departure for this study, however, an adjustment of methods to the scale and scope of our investigation was in order. Rather than conducting manual sentiment analysis, we opted for an iterative and inductive content analysis of videos. Furthermore, the focus of this investigation was specifically the genre of YouTube creators belonging to the commentary genre.
Genres are challenging to pinpoint and isolate, posing some methodological challenges to the conceptualization and operationalization of commentary YouTube and hence to the creation of a representative corpus. We define commentary YouTube as an umbrella term for various videos in which the creator actively engages with and proposes a critical perspective on content they did not create for the purpose of entertainment. The videos in question must include the creator watching and actively commenting on such external content, which must be shown in the video. We selected this genre as relevant to the copyright question because of its continuous engagement with material to which they have no rights beyond fair use. The inclusion in this category is also contingent on the understanding and self-categorization of creators. For example, film commentary is also a sub-category under this general definition, but creators engaging with this sort of content tend to categorize their videos as a separate genre.
For our corpus, we selected 18 videos from a range of YouTubers belonging to the commentary genre, mainly focusing on the ones with a more established audience, viewership, and community. We did this to obtain a representative sample of popular commentary creators who confronted themselves with copyright on YouTube for a longer time throughout different iterations of copyright regulations.
There are a few limitations to this methodology. The selection of videos is somewhat affected by a few biases, including possibly personalized YouTube search results based on our previous use of the platform. Furthermore, since tackling a genre that is somewhat challenging to circumscribe, we partially had to rely on our situated knowledge of such a genre to identify creators whose content was to be considered part of commentary YouTube. Nonetheless, this reflexivity and reliance on personal experiences to create the corpus could be regarded as a valid and positive contribution to the method. This is because our subcultural, community-based knowledge could contribute to selecting relevant individuals within the genre.
Findings and Discussion
Two problems immediately arose: at the start of our research, we wanted to see how the conversation had changed before and after the H3 lawsuit. Right away, we noticed that the conversation around copyright infringement and copyright claims mainly started after the h3h3production and Matt Hosseinzadeh lawsuit. This finding made us consider the relevance of the H3 lawsuit, which is, in fact, often used by other YouTubers as an example of how fair use was treated in court. As a matter of fact, the H3 lawsuit is the only example (together with the Ray William Johnson and Jukin Media lawsuit in 2014 and 2015) of how fair use was disputed and fought in court.
The videos where YouTube creators first brought up the issue primarily dated back to 2016, and then resumed in 2018 and 2019. So whereas our initial research wanted to focus on how the conversation about copyright infringement had changed pre and post H3 lawsuit, in the study and analysis of the data, we realized how the conversation was almost wholly absent pre-2016.
Another crucial aspect to indicate is how from 2016 until the beginning of 2018, there were many aspects of confusion among the analyzed creators, questioning YouTube transparency and what fair use truly stands for. Only from the end of 2018 until now creators seem to have a complete understanding of the issue behind fair use. We also noticed how the conversation around YouTube copyright issues revolved around four main themes: monetization, appeal of a claim, YouTube absence, and claimed content.
The main argument of most, if not all creators, was regarding the financial aspect. The idea of creating content for pleasure and passion was often mentioned, but the notion that YouTube is where their primary revenue comes from is persistently reminded to the audience. So that is where the matter truly comes in: the fact that videos are usually claimed in the first three days from the release (which is the time frame in which most of the monetization comes in) and that the revenue from that video will go directly to the complainant constitute a big issue. Furthermore, despite the monetization of the video itself, sometimes the video has to stay up and cannot be removed for contractual reasons. For instance, it is set out in a partnership between a creator and a brand.
The second most debated issue was regarding the appeal of a claim. Most creators explained that once a copyright claim is issued and they, as creators, receive the notice, it is almost impossible, if not ineffectual, to appeal the claim as fair use. Since YouTube decides not to take any part in the issue but instead leaves the resolution of the problem between the creator and the rightsholder. Most of the time, creators described the rights holders as third party companies with little to no understanding of how the platform actually works. So if the creator decides to appeal the claim, the request would directly go to the rights holder, who will still refuse the request in most cases. That would result in the creator receiving a strike on their channel, or if still convinced to be correct, they will have to fight the claim in court. That is a risk nobody is willing to take as YouTube has a 3-strike policy on copyright infringement: the first strike is a warning, the second strike is also a warning. Still, it might also cause demonetization, whereas the third strike will permanently delete the creator’s account and ban him from creating any other account.
YouTube, in this regard, is entirely absent from supporting its creators. The only cases where YouTube actually intervened in any claim complaint were the ones where creators had connections with YouTube headquarters or in situations where there was public outrage, and so YouTube felt pressured to look into the matter, most analyzed YouTubers point out. This brings us to another point: the only backlash of filing a false claim comes through public outcry towards people who abuse the system. Although failing a false copyright claim is illegal, there are no consequences for a potential system abuser.
The last theme that YouTube creators significantly talked about was regarding who files the claim and why copyright claims are filed. Rights Holders do not always complain when their content moves from their platform to one of the commentary channels. Every creator that we analyzed noticed that the claimed content were videos where the rights holder was made fun of or criticized. That brought us to the conclusion that rights holders are aware of how commentary channels that re-share and react to their videos bring new subscribers and views to their channels. That is, for example, the case with The Nintendo Creators Program, which shut down in November 2018 when they realized that commentary channels were giving free publicity to their games (Kokatu.com). But, somehow when creators are mocked and made fun of, it is as if the free marketing is not accepted anymore, given that the traffic the rightsholder receives will mainly come from critical viewers.
This research project sought to uncover the discourse surrounding copyright infringement and fair use policies on commentary YouTube. In the iterative and inductive content analysis, 18 videos were analyzed to find four main themes that creators deal with, namely monetization, appeal of a claim, YouTube absence, and claimed content. Our study proposes that the discourse around copyright infringement laws on YouTube has become increasingly more prevailing throughout the last 5 years. Furthermore, it found that amongst the analyzed creators, YouTube’s lack of transparency and involvement in the issue is what concerns them the most.
As cultural content becomes contingent, it is essential to bring a critical perspective towards the objects we can find on platforms, as they are inherently informed by sometimes opaque and restrictive platform policies. To complicate this, such forms of platform governance are deeply entangled with the judiciary system. And even if such institutions remain external to platforms, their position and reach are profoundly influential on the possible field of action for cultural producers, such as in the case of YouTube. Hence, researchers must take critical evaluations and investigations of the pitfalls of copyright law to uncover the constraints to cultural production online. The replication and remix of external content seem to be an integral and endemic aspect of digital culture. Still, as platforms extend their power over more and more parts of the web, such practices become increasingly more challenging to sustain.
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H3H3production, We’re Being Sued, May 25, 2016, https://www.youtube.com/watch?v=fEGVOysbC8w&t=335s
H3H3Production, WE WON THE LAWSUIT!, August, 24 2017, https://www.youtube.com/watch?v=9eN0CIyF2ok&t=179s
CodyKo, bad news :( , December 29, 2018, https://www.youtube.com/watch?v=_x2pHhbZheA&ab_channel=CodyKo
Pewdiepie, About A Copyright Strike, September 14, 2017, https://www.youtube.com/watch?v=ah7LYxysuJ8&ab_channel=PewDiePie
Pewdiepie, STOP DOING THIS! – Copyright Striking Criticism etc, January 11, 2019, https://www.youtube.com/watch?v=yMuEeUyMfUo
Andrei Terbea, The Lamentable Tale of POKIMANE, August 15, 2020, https://www.youtube.com/watch?v=7iRILbewgos&ab_channel=AndreiTerbea
Nick Nimmin, These 4 Things Will Get YOUR YouTube Channel DELETED, May 21, 2021, https://www.youtube.com/watch?v=Qh4-hTA-Xgg&ab_channel=NickNimmin
Mumbo Jumbo, YouTube’s copyright system is broken , May 19, 2019, https://www.youtube.com/watch?v=LZplh8rd-I4&ab_channel=MumboJumbo
Danny Gonzalez, I Have Been Having Some ISSUES, February 23, 2019, https://www.youtube.com/watch?v=Fn8gITxmaSU
Danny Gonzalez, They Took My Video Down So I Fought Back In the Most Petty Way, November 2, 2018, https://www.youtube.com/watch?v=tgl2TtrD6D8
Jarvis Johnson, An Animated Story Channel Is Beefing With Me, July 14, 2020, https://www.youtube.com/watch?v=KnS0Q06E17w
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Smokey Glow, Let’s Talk About Marlena Stell, Makeup Geek and FALSE Copyright Strikes…, January 31, 2020, https://www.youtube.com/watch?v=rDjurev_-HE
D’Angelo Wallace, youtube’s biggest sponsor broke the law – rAiD: sHadOW LegEnDs, March 10, 2020, https://www.youtube.com/watch?v=OZyM9kfOotk