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  • I'm not saying that's how it should be.

  • I'm saying that's how it is.

  • So. How do we fix it?

  • What's up, world? It's your boy Tom

  • Oh, come on!

  • This video is sponsored by CuriosityStream,

  • and by this: my new Nebula streaming series

  • that you can watch for free when you join.

  • More on that later.

  • Sellout!

  • What's up world? It's your boy, TomReacts.

  • Let's see what this prat has to say.

  • A few disclaimers before we start:

  • While this video has been proofed and fact-checked by a team of legal experts,

  • I am not a lawyer, and this is not a substitute for legal advice.

  • Yeah, I can tell that, mate.

  • I'm also talking a lot about YouTube and Google, companies that I benefit from enormously.

  • Google even sponsored an entire series on this channel last year.

  • Shill!

  • I'm friends with a few YouTube employees.

  • 'Course you are.

  • So, while all the words here are my own, YouTube don't even know I'm making this,

  • you should know that if you're one of the outliers

  • who's been screwed over by YouTube's copyright system

  • Yeah, you will probably have a different view of parts of this.

  • Although I hope you'll still agree with my conclusion.

  • With all that said, enjoy the show.

  • Get on with it!

  • Not you.

  • I realise saying "YouTube's Copyright System Isn't Broken"

  • is a controversial claim to make,

  • when every week there seems to be a new headline

  • about how a YouTube creator is being screwed over

  • by false copyright claims, or mistaken identity, or deliberate copyright abuse.

  • I'm not saying that the system is perfect.

  • It's far from perfect, and I'll talk about that too.

  • But I don't think it's fundamentally broken.

  • In May 2019, a YouTube Minecraft player called Oli

  • had hundreds of his videos claimed by music label Warner Chappell

  • using YouTube's Content ID system.

  • His post about it made a lot of people righteously angry.

  • He'd got permission to use a track from an independent composer as his intro music,

  • and now a big corporation was claiming every video and taking all his revenue!

  • Popular websites went so far as to claim that Oli was the victim of outright theft,

  • since 25% of his revenues were directed to Warner Chappell.

  • But the follow-up wasn't seen by nearly as many people:

  • those claims were entirely legitimate.

  • Yes, Oli got permission to use that music from its composer,

  • but that composer had sampled another piece of music

  • that was owned by Warner Chappell, without a license.

  • So the permission that Oli got was entirely useless.

  • Warner Chappell was right, and Oli was wrong.

  • So, here's how that should have worked

  • in the world that current copyright law was designed for:

  • First, everyone involved would have been part of a large company with a legal team.

  • Lawyers from the music label would have contacted the lawyers for the video company,

  • and they would have said, "What's going on? You didn't license that."

  • And the video company lawyers would have gone:

  • Oh, I'm sorry. I had no idea.

  • We bought that license in good faith from a third party.

  • We should both talk to them.

  • At which point the third company's lawyers would get a very worrying phone call.

  • [screams]

  • And all the mess would almost certainly have been settled out of court.

  • Maybe by backroom dealings,

  • maybe by teams of lawyers sending formal letters to each other.

  • That was the world that copyright law was designed for.

  • Because individuals couldn't make things

  • that were viewed by millions without corporate support,

  • you needed a publisher, or a broadcaster, or a huge production company,

  • andthose companies had lawyers.

  • The world has moved on, and copyright law hasn't.

  • And the result is that, when something like this happens

  • in the world of relatively-tiny, independent online creators,

  • we have to work around what the law is meant to do.

  • [Canon in D by Pachelbel]

  • Music has two main copyrights.

  • First, there's the copyright on the composition itself:

  • all the parts of a work that can be written down,

  • so, lyrics and notes.

  • And then, second, there's a copyright on each individual recorded performance.

  • So I can sit here, and I can play Pachelbel's Canon in D

  • without having to pay any licensing fees,

  • because Pachelbel died in 1706 and his work is now in the public domain,

  • in the pool of works where the copyright has expired.

  • His music is now free for anyone to use without payment and without credit.

  • Which is brilliant!

  • But if I'm not playing it,

  • I'm actually using a modern recording of it

  • [music continues]

  • then it doesn't matter that the composition is in the public domain:

  • [music stops]

  • someone has added their own hard work playing it,

  • along with the work of a production team making it sound good,

  • and that recording is under a separate copyright

  • that needs licensing to use in a video like this.

  • Songwriter after songwriter after songwriter has used Pachelbel's Canon in D

  • to the extent that it's now a cliché,

  • and no-one's had to pay Pachelbel or his family a penny in centuries,

  • but that doesn't mean any of the modern songs based on it are in the public domain.

  • There is new work there.

  • And I can't use those modern songs in this video to demonstrate that,

  • unless I'm actually criticising them.

  • On that point

  • ♫♫

  • Maroon 5's Memories is an infuriating composition

  • that uses the start of the melody of Canon in D but never resolves it,

  • which means it has the same stuck-in-your-head effect

  • as the jingle from Alfred Bester's The Demolished Man,

  • and I hate it.

  • ♫♫

  • Coolio's C U When U Get There was a lukewarm lead single

  • from a third album that obviously did far better with a naive world audience

  • than it ever did with its actual target market.

  • There's a reason it went platinum in New Zealand.

  • ♫♫

  • And The Farm's All Together Now is

  • actually a pretty good song

  • despite the incongruity between its subject matter and its style,

  • but it's been completely destroyed

  • by repetitive and unnecessary cover versions and football chants.

  • Criticism and review! There we go.

  • That is the sort of thing that's considered "fair use" under US law,

  • and "fair dealing" under the much more strict UK law,

  • but I had to censor the album art of those songs,

  • because I wasn't criticising and reviewing the art,

  • and the art is covered under separate copyright.

  • In 2009, Andy Baio, then one of the directors of Kickstarter,

  • released an 8-bit chiptune version of the best-selling jazz album of all time,

  • Miles Davis' Kind of Blue.

  • He got a license from the music publisher. He called it Kind of Bloop.

  • It was all above board.

  • But he settled out of court for more than $30,000 with Jay Maisel,

  • the photographer who took the iconic photograph on the original album cover.

  • Kind of Bloop's album art was a pixelated version of that album cover.

  • Baio thought it was fair use.

  • Maisel said it wasn't, and Maisel had lawyers.

  • To quote Baio:

  • "The fact that I settled is not an admission of guilt.

  • "This was the least expensive option available."

  • Because copyright lawyers and copyright lawsuits are very, very expensive.

  • Expensive enough that that isn't the album cover!

  • That is a stock photo that looks kind-of like the album cover,

  • because I am taking no risks.

  • I don't know if that pixel art was fair use.

  • If someone took your greatest work, ran it through a pixelation filter, and then sold it,

  • I don't think it's entirely unreasonable to think you've been ripped off.

  • The line of 'fair use' is very fuzzy,

  • and both sides can have very strong and conflicting arguments.

  • That's the job of the courts to solve.

  • If both sides can afford it.

  • And there wasn't even a music video involved there!

  • That is a whole separate problem.

  • There is something called a 'compulsory license'

  • for selling and performing just music,

  • but if you want to publish a video to go with someone else's song,

  • even if it's just a video of you performing it on a ukelele in your bedroom,

  • that requires a separate synchronisation license,

  • and the copyright holder has an absolute right to say no to that.

  • YouTube has always had a lot of people uploading cover songs,

  • singing and performing the music that they love,

  • and hoping they'll get noticed.

  • By talent scouts, not by lawyers.

  • A lot of modern pop singers got their start on YouTube,

  • but the legal baseline for doing that outside the YouTube bubble,

  • if you just filmed yourself and put it up somewhere else online

  • Well, the baseline is that you'd have to pay for an expensive license,

  • or you get sued, and you lose.

  • Or more likely, you get a cease-and-desist letter,

  • you pay a bit of money to make the lawyers go away,

  • and you drop out of the music industry, disillusioned.

  • And you can't get away with it by changing the lyrics.

  • A parody is probably not "fair use" unless you're directly criticising the original,

  • and even then, it's questionable.

  • 'Weird' Al Yankovic, the most popular parody artist in history,

  • licenses the songs that he parodies.

  • There are lots of lengthy law journal articles asking whether he needs to,

  • butit's better safe than sorry,

  • and yeah, I wouldn't fancy his chances if it actually went to court.

  • The worst-case scenario of doing an unlicensed song parody on YouTube

  • is that you get sued, and you lose.

  • Because under current copyright law, you are in the wrong.

  • I'm not saying that's how it should be.

  • I'm saying that's how it is.

  • And most people won't have the money to even start to defend a case like that.

  • Now, YouTube has a workaround for this, Content ID, I'll get to that later.

  • And if you're not actually using the original piece,

  • if you're justreminding the viewer of it,

  • just getting close enough in your parody,

  • then you're probably in the clear.

  • YouTube creators who change just the lyrics of songs to do parodies

  • often say, "Oh, but it's transformative! It's fair use, it's for criticism!

  • "They can't claim copyright over it! They're making a false

  • [hits piano]

  • They're making a false claim!" And

  • Look, if you're taking a Katy Perry song and changing the words

  • to be about something other than criticising Katy Perry or the song itself,

  • it's likely not fair use.

  • The same way that big movie companies can't take small songwriters' work,

  • change the lyrics, and put the result in movies without paying and say,

  • "Oh, but's transformative, it's fair use. Look, we changed the lyrics."

  • And it may seem unfair that the law holds kids on YouTube messing around

  • to more or less the same legal standard as Hollywood studios.

  • In public opinion, there's definitely a big difference there:

  • People smile at small creators taking content from big companies well outside fair use,

  • but never the other way around.

  • And that's the reason that some small-time reaction YouTuber

  • Hey! Hey!

  • can take a five-second clip from a movie and use it for a cheap punchline,

  • even if it's not criticism and review

  • but I'm damn sure if a movie studio took a clip of a reaction channel's video

  • and used it in a film without permission,

  • there would be lawyers lining up to take the case.

  • Yeah, you're right. This is my content, I own it!

  • You hear that, Disney? Right.

  • Remember, tomorrow I'm reacting to the new Star Wars trailer.

  • Maybe there should be different treatment there.

  • But in current copyright law, there isn't.

  • If you take a photograph off a stock image site, or from some photographer's Flickr account,

  • and you just copy it into your blog post or your company website,

  • you might well get an email from a service called Pixsy.

  • They use automatic systems to scan the web,

  • detect people who've used photographs without permission,

  • and then they send legal letters threatening court action and demanding payment.

  • And legally, they are in the right.

  • They're using strong-arm tactics and they're in it for the money

  • and in some cases, they are threatening someone

  • who has absolutely no idea about copyright,

  • and genuinely thinks that stuff on the web is free to take.

  • There are lots of threads online with people going,

  • "Agh, what's— what's happening? I didn't know, how do I make this go away?"

  • To which the answer is: pay up.

  • Photography is an art, and an expensive one,

  • and yeah, until we live in magical post-scarcity Star Trek space communism,

  • you shouldn't just be able to rip off a photographer's copyrighted work and use it.

  • Except, that's what the Internet does. A lot.

  • Heck, I used to do it.

  • It's gone from the Internet now, for obvious reasons,

  • but when I was younger, I unashamedly took images

  • and other stuff from the web and repurposed it,

  • because I knew hardly anyone would see it, even fewer people would care,

  • and the worst case scenario was that I'd get a cease-and-desist letter.

  • and if that happened, I might be able to cry 'censorship'

  • and get some publicity out of it.

  • I've grown up since then,

  • but there are a whole new wave of kids who have that same philosophy.

  • "No copyright infringement intended", they'll say.

  • "I own nothing, all rights to the copyright owners",

  • or "this is transformative under fair use",

  • as if just claiming that is some magic incantation that will ward off lawyers,

  • like waving a cross at vampires.

  • [with accent] I want to sue you now!

  • No copyright infringement intended! No copyright infringement intended!

  • [hisses]

  • András Arató, from Hungary, posed for some stock photography a few years ago.

  • He doesn't have rights over his face or image in any of these photos,

  • he signed those away as part of the photography contract.

  • And while there is a discussion to be had about personality rights

  • and the ethics of taking some random person's face and using it without context,

  • that's not relevant here. What is relevant is the copyright on that photo.

  • If you're criticising or commenting on the photo itself,

  • if you're judging the composition, the camerawork, or

  • yes, the incredibly awkward expression

  • that meant he gained the nickname "Hide the Pain Harold"

  • and became one of the most-recognised figures in the nerdy underbelly of the Internet,

  • then yes, that may well be acceptable.

  • But if you're just using those pictures as a stock image

  • to make a point about anything else,

  • then you'd better have a license or you're exposing yourself to a lot of legal liability.

  • When big publications talk about the "distracted boyfriend" picture, they license it.

  • There is no exception, under law, for: "I just put it in my video as a quick joke!"

  • I licensed all those photos from a company called Shutterstock,

  • here's the license agreement.

  • Actually, I got a bundle deal of image credits from them because it was cheaper,

  • and I had some of those credits left over,

  • so please now enjoy a few inexplicable stock photos

  • that I also now have the legal right to use.

  • Anyway, the photographer who took that original "distracted boyfriend" picture

  • was asked how he felt about his work being used everywhere without permission.

  • And he said: "They're just a group of people doing it in good faith.

  • "We are not going to take any action, except for the extreme cases

  • in which this good faith doesn't exist."

  • That is an act of generosity on his part.

  • He would be entirely within his rights to hire a service like Pixsy,

  • let them play the bad guys, and rake in a lot of money,

  • and if you think that's wrong, then talk to a professional photographer.

  • Ask them how they earn their living, and how much their equipment costs,

  • and how they'd feel about it.

  • Now as I record this, Pixsy doesn't appear to have automated systems

  • hunting through YouTube videos to find unlicensed images and send out legal threats,

  • butthey could. Pretty easily.

  • Maybe those claims could be defended in court with enough money,

  • but in the current system, most people would be forced to fold,

  • and pay a license fee, and give up.

  • And viral-video licensing companies like Jukin Media

  • do already search through YouTube for unlicensed use of the video clips they own,

  • and while as a company they are vilified by the creator community,

  • they've, umthey've got a point.

  • Creators have the right to determine how their work is being used,

  • and taking someone else's copyrighted photos or videos,

  • and using them commercially, without permission, without criticism,

  • is not fair use under the law.

  • Even if loads of other people have already used them.

  • Even if you add some words on top of them. Even if you mash them up with three other things.

  • Are you 100% sure that you are transforming or criticising the original,

  • not just using it?

  • And are you 100% sure that a court would agree with you?

  • And just to repeat: I'm not saying this is how it should be.

  • I'm saying: this is how it is.

  • But that's pictures and videos. What about bits of pop culture?

  • At the end of 2019, Giphy, a GIF-aggregation site, briefly removed

  • Actually, hold on. People will complain.

  • I'm pronouncing it /ɡɪf/ because Giphy, the site I'm talking about, pronounces it /ɡɪf/.

  • And besides, the real problem is that they're not actually GIFs,

  • they're short video files in other formats.

  • GIF is a really specific descriptor for a data format.

  • Short looping videos are not GIFs, but apparently now they are!

  • It's like how "emoji" now refers to any small image.

  • I'm still grumpy about all of this. Don't @ me. Anyway.

  • At the end of 2019, Giphy briefly removed its many, many GIFs

  • of The Child from The Mandalorian,

  • a creature designed to be so adorable that I can only assume

  • the design came directly from Disney's merchandising team.

  • Those GIFs were removed because of what Giphy described as

  • "confusion about certain content".

  • I'd guess they got a legal letter from someone at Disney,

  • before Disney realised what a PR disaster it would be

  • to stop the Internet having immediate access to Baby Yoda.

  • But the Guardian article about that brief takedown has a really interesting final line:

  • "Images in GIFs are widely understood to fall under the 'fair use' exception."

  • Notice how that's phrased: "Widely understood."

  • There has never been a court case about this. Are GIFs fair use?

  • I actually think that, if some company got a bee in their bonnet,

  • the same way they did about Napster twenty years ago,

  • and if they insisted on litigating all the way to court,

  • it is entirely possible that a judge would go,

  • "No, GIFs aren't a parody, they're not criticism, they're not transformative, they're not fair use.

  • "Giphy's entire product, the GIF economy, is based on systematic copyright infringement.

  • "Pay the money, shut it down."

  • In practice, of course, it wouldn't get that far.

  • Giphy would accept a cease-and-desist and take down what was complained about.

  • It's just easier, because remember,

  • they're not an individual creator or a small site.

  • Giphy has an enormous office in New York

  • with catered lunches and arcade games for more than 100 employees

  • based on a business model that is arguably copyright infringement.

  • I am amazed that no big media corporations have looked at their money and gone

  • "We can sue them for that!"

  • In the same way, uploading video game footage to YouTube

  • is "widely understood" to be okay, but that's questionable.

  • Maybe if it's something like Minecraft, where there's a lot of original work, it could be.

  • And besides, the license agreement that you accept when playing Minecraft

  • allows streaming and most YouTube videos.

  • But if it's just a video of cutscenes,

  • or following roughly the same sequence of events

  • that every player would follow,

  • it's a bit like putting up a video of you watching a TV show.

  • We've seen companies decide in the past that

  • actually, they don't want videos of their games online.

  • It is very easy to make the argument that online streaming of games affects sales.

  • And the impact on sales is a key component

  • in determining whether something is fair use.

  • Sure, the games get some exposure, but exposure doesn't pay the rent.

  • I didn't buy Untitled Goose Game and experience the beautiful artwork

  • and immaculately-timed comic setpieces myself.

  • I skipped through a couple of videos so I could get the jokes,

  • and then I moved on.

  • I didn't buy Superliminal either.

  • I just watched a video of someone playing it to get how it works,

  • skipped forward to see how it ends, and then I got on with my life.

  • And I'm glad I did, the game mechanics are clever

  • but the ending is unsatisfying.

  • Or maybe I just think that because I watched someone else play it.

  • And that someone else, who provided a substitute for the original product,

  • made money off that, either from advertising or streaming donations.

  • Now, video game streaming might be fair use

  • if you've got someone constantly criticising and reviewing the work as they play it.

  • Not just talking about it, or not just repeating what they're saying in the game,

  • or saying hi to the chat, like actively criticising.

  • Maybe. It would be up to a judge to decide,

  • and no-one wants any case like that to get to court,

  • because somehow we have an entire industry

  • based around something that is very possibly copyright infringement,

  • but which most video game publishers are just going along with.

  • Perhaps because they genuinely think it's a good thing,

  • or perhapsbecause they've seen the backlash that happens

  • when horrible gamer children are suddenly denied something they think is their right.

  • Like our friend in the corner.

  • Hey, this is transformative. This is definitely fair use.

  • Would you do this to a Marvel movie, though?

  • No, mate. They'd sue me for every penny I've got.

  • In the not-too-distant future, next Sunday A.D. ♪

  • In 1988, KTMA-TV in Minneapolis

  • aired the first episode of Mystery Science Theater 3000,

  • which was basically a reaction channel.

  • A host, along with a cast of puppet robots,

  • would watch a full-length movie, usually an old science fiction piece.

  • They'd be in silhouette, as if they were in the row of cinema seats in front of you,

  • constantly cracking jokes about whatever was on screen.

  • It's tightly written, scripted with joke after joke after joke,

  • although the skits that surround the movie

  • are often so laden with in-jokes and character shtick

  • that new viewers who don't know the show and the cast can be completely lost.

  • Like I said: it's basically a reaction channel.

  • Time magazine listed Mystery Science Theater as one of the 100 greatest TV shows of all time.

  • A Kickstarter brought it back in 2016,

  • and then Netflix brought it back for another couple of seasons.

  • Mystery Science Theater was absolutely criticism and review and absolutely transformative.

  • But they still licensed the movies.

  • Anything that wasn't in the public domain, they negotiated and paid for,

  • becauseyeah.

  • Playing out someone else's entire movie, just with wisecracks over it

  • probably not fair use.

  • And even if it was, a studio would've probably sued them at some point anyway,

  • and they'd have had to defend the case and spend the money to defend the case.

  • Now, there have been YouTube commentary channels who have defended lawsuits

  • where fair use and fair dealing seem clear.

  • H3H3, an often-controversial reaction and commentary channel,

  • won a very expensive lawsuit that was brought by someone they criticised.

  • They were very happy about the result,

  • and they shared that with their fans

  • in a way that pretty much sums up why their style

  • isn't for everyone.

  • Good job, Hila. Good job.

  • [choking noises]

  • [screams]

  • The court even noted that their video was transformative

  • because it "responds to and transforms the video from a skit

  • "into fodder for caustic, moment-by-moment commentary and mockery."

  • The judge's decision goes into the balancing factors of fair use in depth,

  • but the most important bit is a little bit further down:

  • "Some reaction videosintersperse short segments of another's work

  • "with criticism and commentary,

  • "while others are more akin to a group viewing session without commentary.

  • "Accordingly, the Court is not ruling here that all 'reaction videos' constitute fair use."

  • It's clear that just playing a video and laughing at it isn't fair use. It's copyright infringement.

  • The border of fair use is somewhere in the grey area

  • between lazy zero-effort reaction streamers and in-depth insightful criticism

  • but it's a fuzzy border, and right now, questions about it

  • can only be settled on a case-by-case basis in an expensive courtroom,

  • because, yeah, there is one thread throughout all these examples:

  • under the current system, it often doesn't matter who's actually in the right.

  • Even if the answer to "Is it fair use?" is clear,

  • it's actually about whether you can afford to defend a case.

  • You could be 100% sure it's fair use

  • but unless you're prepared to spend the time and the money to actually fight that in court,

  • it doesn't matter.

  • Which brings us to how YouTube worked around this.

  • Back in 2006, YouTube made an arrangement with the big music companies,

  • so the big industry players wouldn't sue this new platform out of existence.

  • YouTube developed Content ID, which scans every video uploaded

  • and checks it against an enormous database of copyrighted content.

  • If there's a match, everything works completely outside the usual copyright system.

  • All those worries about synchronisation licenses and publication rights,

  • all that law, is effectively replaced with two contracts:

  • one that's private between YouTube and the big media companies,

  • and one that's in the Terms of Service that you agree to

  • when you upload your bedroom-vlogger video to YouTube.

  • There is a public list of the music tracks that are in Content ID,

  • including the current policies from the music companies.

  • There's no list of the TV shows, or films, or other stuff that's in there.

  • Mostly, the copyright owners just put adverts on the video.

  • Sometimes, they do block it entirely, butthose policies can change at any time,

  • and if you do something they particularly don't like,

  • it doesn't make you immune from lawsuits,

  • or from formal takedown notices under a law called the DMCA.

  • They're called "copyright strikes" by YouTube.

  • Those are still an option for copyright owners.

  • It's just that with very, very few exceptions, they'll take the money from ads instead.

  • Content ID means that video creators,

  • unless they're being so malicious as to attract serious attention,

  • generally don't get sued and don't get DMCA takedowns.

  • They don't have to negotiate a synchronisation license for cover songs.

  • Now, some companiesmusic labels, mostlyare also able to manually put Content ID claims

  • on videos that the automated systems miss.

  • That is an avenue for abuse.

  • And so is the manual appeals process that's meant to kick in

  • if the automated systems have flagged something that really is fair use,

  • like a review, or a brief incidental snippet of a song

  • that was playing somewhere as you walked by.

  • Often, the appeals process does work

  • but give a corporation an inch, and they'll take a mile.

  • Making decisions about fair use and copyright is meant to be handed over

  • to experienced, trained people who can give nuanced judgements

  • but from the stories that have come out over the years,

  • it looks like it's mostly subcontracted out to the lowest bidder,

  • with enormous decision-making power given to people whose job is just to

  • run through the backlog of appeals as quickly as possible and make snap decisions,

  • knowing that very few people will actually be able to do anything about the result.

  • I've been a victim of that in the past:

  • A TV channel from Thailand took one of my videos,

  • played it out without permission in one of their big television shows,

  • and then put that entire television show into Content ID.

  • I got a Content ID hit on my original video from them,

  • and that took a long time to sort out.

  • And I never found out, in the end,

  • whether that channel kept their access to Content ID or not,

  • because, yes, companies that abuse it should have it taken away from them.

  • But, of course, if YouTube does that,

  • then they fall back to the legal default position:

  • DMCA takedowns or lawsuits,

  • either against the creators or against YouTube itself.

  • There are absolutely flaws in Content ID. I am not saying it's perfect.

  • There are hundreds of cases that we could talk about

  • where the system didn't work,

  • and thousands more that never got enough publicity

  • for the world to actually notice them.

  • There are so many edge cases,

  • like the people who got copyright claims on white noise, just on the sound of static,

  • because the system wasn't originally built to deal with white noise.

  • Or the people who do in-depth music theory analysis of songs,

  • very likely fair use, but still getting manual Content ID claims.

  • But I don't think Content ID is broken.

  • It's a reasonable stopgap. It works almost all the time.

  • That video of a couple's first dance at a wedding, uploaded by the father of the bride:

  • No, copyright law doesn't allow him to upload that to YouTube,

  • not unless he's got a synchronisation license.

  • But Content ID just deals with it, and the video stays up.

  • That excited fan video from the kid in the front row at a concert:

  • No, not permitted under copyright law.

  • Content ID deals with it.

  • The teenager making a video compiling all the romantic subtext

  • between their two favourite characters in a show:

  • No, not allowed. It's not criticism or review.

  • But Content ID deals with it, and the video stays up.

  • Without Content ID, those videos would be taken down by DMCA copyright strikes,

  • and if someone protested, the next step is a lawsuit.

  • Maybe for the uploader, but more likely,

  • the same would happen as all those years ago:

  • the big media companies would go to YouTube and say:

  • "You're allowing this to happen. You're making money off this.

  • "We're going to sue you out of existence."

  • Sadly, it's not about what's fair, or what's just.

  • It's about the arrangement that YouTube and the big media companies have come to.

  • It's not ideal, but under copyright law,

  • current copyright law at least, I don't think there's a better option.

  • And I don't want to sound like the grumpy old man

  • complaining about the kids these days,

  • but yes, when I started on YouTube, 2006, there was no monetisation option.

  • Creators could not earn money on-platform at all.

  • And that was fine, because it was a miracle that someone was offering to do

  • the incredibly expensive and difficult job of hosting video for free!

  • One of the reasons there aren't any serious competitors to YouTube

  • is that it is ruinously expensive to run a video hosting site:

  • you either have to be a subscription service or one of the world's largest advertising firms.

  • A lot of folks, particularly younger people,

  • who have only joined YouTube in the last couple of years

  • have a different baseline for this:

  • They think that they have "the right" to upload long compilations of their favourite videos

  • with maybe a few words spoken between each clip,

  • and make loads of money from it,

  • that that is something that they are entitled to do,

  • and that any copyright owners who complain are censoring them and putting in false claims

  • Yeah. Okay, yes. I'm the grumpy old man complaining about the kids.

  • But, under the current copyright system, those kids are legally in the wrong.

  • Maybe not morally. That's a different question.

  • But legally, they are in the wrong.

  • There is an enormous distance

  • between what the law says and what the world's actually doing,

  • and that is where most of this tension comes from.

  • So. How do we fix it?

  • We need three things.

  • We need to update copyright law,

  • we need a good small-claims court for copyright,

  • and we need to shorten how long copyright lasts.

  • So, first: updating the law.

  • This is a big goal, but the entirety of international copyright law

  • needs to be rewritten to reflect what's fair in today's world.

  • Everyone will have a different opinion of what that is.

  • I'm actually fairly conservative on it.

  • I'm not convinced that we should massively widen the definition of fair use,

  • because every bit of freedom you give to individual creators

  • also makes it easier for big companies to rip them off.

  • But I'm not going to say where the line should be drawn.

  • It is a job for consultation and conversation,

  • where everyone is at the table, not just the big publishers.

  • And if completely rewriting international law seems unlikely,

  • then it's still possible to push for changes.

  • In 1990, one article by one judge swayed opinion among the US legal community,

  • and helped change the most important factor of fair use

  • from whether it was commercial to whether it was transformative.

  • It is entirely possible that new publications like that

  • could help improve things.

  • The judge's conclusion in that article also makes an excellent point:

  • there should not be a clear and unambiguous definition of "fair use",

  • what he calls a "bright line standard", unless we have a good standard.

  • And we don't have one.

  • The border of fair use has to be messy because people and creativity are messy.

  • So if fair use is going to be messy, and if it will inevitably lead to conflict,

  • let's make resolving that conflict quick, fair and accessible.

  • This is already starting to happen in the United States, but badly.

  • The UK has one of the world's friendliest copyright regimes for individual creators.

  • We have the Intellectual Property Enterprise Court,

  • which is mainly based here, at the Royal Courts of Justice in London,

  • and it's a specific court to deal with cases

  • about copyrights, and patents, and trademarks.

  • And that court has a small claims track.

  • If you're an individual photographer or video maker,

  • you can do the research, file the right forms, follow the right procedures,

  • and issue a claim as a "litigant in person",

  • which is the fancy British term for "without a lawyer".

  • I've done it, because a major company ripped off one of my videos.

  • This court is designed to be more friendly for individuals:

  • the procedures are more relaxed, it's almost like mediation rather than a court

  • except that, if all negotiations fail,

  • then there is a judge issuing a legal order at the end of it.

  • It is stressful. It is hard work. You need to get all the details right.

  • You should probably get a lawyer if you're gonna do it,

  • but if your job is basically reading hundreds of pages of nerdy detail

  • and summarising it into something the world can understand,

  • then, yeah, it can be done.

  • It is really nerve-wracking.

  • Like, most of the people who walk into the admin building

  • of one of the biggest courts in the country, without a lawyer,

  • to try and file a claim

  • They don't have the best grip on reality, but all of them think they do.

  • And there I was, walking in, no lawyer,

  • thinking I had a case, thinking I had a grip on reality.

  • Statistically, the odds weren't in my favour, but I filed successfully.

  • And the company settled with me, they paid me to drop the claim,

  • because they were in the wrong, and they knew they were in the wrong,

  • and they knew I could actually get it to a judge in exchange for a bit of work

  • and a court fee of just over £100.

  • There is a plan to do something like that in the United States.

  • At the time of recording, the Copyright Alternative In Small Claims Enforcement Act,

  • the CASE Act, is passing through government.

  • Unfortunately, it has massive flaws:

  • using the new small-claims track is voluntary for both parties,

  • which means that if you want to sue a big company,

  • that company can just choose to opt-out

  • and require you to take the expensive path.

  • And to quote an explainer:

  • "If the losing party does not comply with the judgment,

  • "the prevailing party can bring an action in federal court to enforce it."

  • So if you actually want the judgment to be effective,

  • you may have to take the expensive path anyway.

  • In short, all the power is still with the people who have money.

  • Oh, and it means that it's now much, much cheaper for big companies

  • to try and enforce unfair claims against large numbers of individuals:

  • it's a so-called 'default judgment mill'.

  • The CASE Act is not a fix.

  • It's a step sort-of in the right direction,

  • but it's not great, and it may well lead to more problems.

  • There's also a wider problem dealing with this across international borders,

  • but that's a separate issue.

  • Having a working small-claims process in the United States

  • would help address the massive imbalance between the rights of individuals

  • and the rights of huge corporations,

  • at least on this platform, on YouTube.

  • And even if that's just in the US: from there, the world will follow.

  • So then finally: we shorten how long copyright lasts.

  • Under current US law, if a modern work has an individual author,

  • then its copyright generally lasts until death plus 70 years.

  • For works by a corporation, it's 95 years from publication.

  • There are a huge number of complicated factors for older works

  • because of the many, many changes to the law over the decades,

  • but that's a decent rule of thumb.

  • Andthat's too long.

  • Singer-songwriter turned politician Sonny Bono,

  • the person who the Copyright Term Extension Act of 1998 was named after:

  • He believed that copyright should be forever.

  • That the great-great-great-great- great-great-great-great-

  • great-great-great-great- great-grandchildren of Shakespeare

  • should still be able to charge licensing fees for adapting Shakespeare's work

  • or more likely, those rights would've been sold to a corporation at some point,

  • and "Shakespeare Intellectual Property Ltd."

  • would now be able to collect license fees into eternity.

  • I think that opinion is so ridiculous as to be indefensible.

  • If copyright lasted forever, if nothing ever entered the public domain,

  • then yeah, someone would still have the final say

  • on how Shakespeare could be adapted or performed.

  • Perhaps you could perform it however you wanted,

  • but only by paying an enormous license fee.

  • Little community theatres like this? Priced out.

  • Or perhaps someone would want to defend the Shakespeare Brand Guidelines,

  • and insist that all adaptations be entirely faithful to the original text.

  • So, no Baz Luhrmann Romeo + Juliet without permission.

  • No 10 Things I Hate About You without permission.

  • The Lion King?

  • Very close to Hamlet, that. You want to avoid that lawsuit.

  • Making a reference to how "all the world's a stage"?

  • Pay up. Needs a license.

  • And if you think that's ridiculous,

  • find any book that quotes one copyrighted song lyric,

  • maybe to introduce a chapter:

  • there will be an acknowledgement somewhere

  • that they've got permission from the copyright holder.

  • The point of copyright is to allow people to profit from their creative work.

  • I am not against copyright. I rely on copyright to earn a living.

  • But the works that fall into the public domain are vital for creativity.

  • And patents only last twenty years!

  • Twenty years before your patent expires,

  • and anyone can take your actual, physical, real-world invention

  • and just churn out cheap copies for everyone.

  • If you invent something that literally changes the world, great!

  • You get twenty years to make all the money you can,

  • and after that, you will be out-competed

  • by other people who can do it better and cheaper.

  • But write a song? You get until you're dead!

  • Plus your descendants get another seventy years.

  • That is ridiculous!

  • And meanwhile, all the "orphaned works",

  • the obscure things where no-one can track down the copyright holder anymore

  • to ask for a license

  • Well, they can't be archived, they can't be copied.

  • They often can't be preserved at all,

  • just because no-one knows who to ask for permission.

  • The longer copyright is, the worse that problem gets.

  • And I know, a twenty-year copyright term that matches patents

  • would never get through modern politics.

  • When you have enormous corporations

  • that earn billions from their copyrighted back catalogue,

  • it is trivial for them to spend a fraction of that

  • on lobbying to make sure copyright doesn't get reduced.

  • I would like it to be twenty years, I would campaign for twenty years,

  • but… I also know that it's not going to happen.

  • And, to be fair, it does feel like

  • the people who made the songs of the '80s and '90s,

  • the songs that are still being listened to in this current nostalgia cycle,

  • they should probably be able to make some money from that.

  • So, I would suggest 50 years.

  • It's an easy number, it allows a couple of nostalgia cycles to happen,

  • and it would mean that right now, the '60s would be public domain,

  • and the '70s would be on their way.

  • The decades that are no longer pop-culture nostalgia, but history.

  • Pachelbel, Chopin, Beethoven: they should already be joined in the public domain

  • by Dylan and Mitchell and Hendrix and Cline.

  • Shakespeare and Shelleyeither Shelley

  • they should be joined by Lee and Heller and Orwell and countless others,

  • including the works that no-one can trace the owner of,

  • because after 50 years, you shouldn't need to trace the owner of a work.

  • You should just be able to use it.

  • Anyone should be able to make a James Bond movie by now.

  • 'Cause they'd probably do a better job.

  • Yes, the people who have already made ludicrous amounts of money

  • would not be able to make as much anymore, sure.

  • But the artists' work, the thing they're supposed to actually care about,

  • could be enjoyed and built on by everyone.

  • And the few artists from back then who are still popular

  • will be absolutely fine,

  • continuing to make money from their world tours, and merchandise,

  • and public appearances, and newer albums.

  • And an entire new generation would get exposed to music and writing and art

  • that might otherwise be forgotten about.

  • A shorter copyright term would badly affect perhaps a few hundred people in the world:

  • the folks who created one hit song, or one incredible book

  • that is still bringing them money decades later,

  • and who are now relying on that money as their only source of income.

  • It's not many people, but yes, the very, very, very few who fit into that category,

  • it'll suck for them.

  • If royalties were their pension scheme — I mean, that's bad financial planning,

  • but if they were thinking that the one song they made in '64

  • will get them through their retirement,

  • yeah, it's gonna be a shock.

  • I do not believe that that's a strong enough argument

  • to justify locking up all that creativity,

  • all that potential for the entire world, for that long.

  • No-one's going to stop creating

  • because they only get 50 years' or 20 years' copyright.

  • Songwriters, and authors, and filmmakers, and choreographers, and YouTube creators:

  • we make things because we can.

  • Because we have ideas and we want to show them to the world.

  • Not because we're thinking that our grandchildren might, one day,

  • have a chance of getting a trickle of money from some future copyright license.

  • So, when I say that YouTube's copyright system isn't broken, I mean it.

  • It's a reasonable patch, a bit of duct tape

  • holding together a system that's somehow still just about working,

  • despite being completely unsuited for the modern world.

  • Yes, occasionally it goes wrong.

  • When that happens, it should be fixed quickly and transparently.

  • But the long-term solution is not to apply another patch,

  • on another patch, on another patch, on another patch.

  • The solution is to fix the system that it's trying to work around.

  • Because that's the problem.

  • YouTube's copyright system isn't broken.

  • The world's is.

  • Alright, that's it. Remember to like, comment

  • oh come on!

  • Over on Nebula, I've got a new series. Here's the trailer.

  • I invited five people to play some games.

  • I trust no one. None of us are trustworthy.

  • in an environment designed to slowly break their team apart.

  • This is real money!

  • But all they knew is they'd be sat around a table

  • trying to win real cash: $10,000.

  • The vibe's changed after that theft.

  • This is a show about trust, about loyalty,

  • and about Money.

  • Tom wants the chaos. (all laugh)

  • Nebula is a home for new, in-depth and experimental content,

  • and collaborations from some education video creators

  • that you may well have heard of.

  • And you can get it for free when you join CuriosityStream,

  • a subscription streaming service with thousands of

  • big-budget, professional documentaries and nonfiction titles.

  • CuriosityStream is $2.99/month or $19.99/year,

  • it includes access to Nebula, including my new series,

  • and you can get a 30-day free trial by going to curiositystream.com/tomscott

  • Is he even allowed to mix advertising and content like that?

  • That is a whole other video.

  • [Caption+ by JS* https://caption.plus]

  • So if fair use is going to be messy,

  • and if some of it will inevitably lead to disputes,

  • let's make that process quick

  • I said dis-PUTES. I didn't say DIS-putes, I said dis-PUTES.

  • I said the verb, not the noun.

  • It's an important distinction. Can we try that again?

  • will inevitably lead to disputes,

  • let's make that process quick, fair, and accessible.

  • I still said, DIS-putes.

  • inevitably lead to disputesinevitably lead to disputes

  • inevitably lead to disputes

  • let's make a— DIS-putes!

  • So if fair use is going to be messy, and if it will inevitably lead to conflict

  • Maroon 5's Memories is an infuriating composition

  • that uses the start of the melody of Canon in D but never resolves it

  • which means it has the same stuck-in-your-head effect as the jiun-gle from

  • [stammers]

  • Nope. Worth a try. Let's go back!

  • [vocal warm-ups]

  • Alright, how're we doing?

  • Yeah, I got that on camera. That's good.

  • Good.

  • Every week, there seems to be in-a-new headline about

  • There seems to be— [stammers]

  • We bought that license in good faith from a…

  • What'd it say? "Oh I'm sorry, we had no idea."

  • Let's try it again, take

  • eight, or is that seven now?

  • [screams]

  • [screams]

  • [low scream]

  • [faint yell]

  • [yelps]

  • [long scream]

  • Ooh, sorry.

  • mainly based here, in the Royal Courts of Justice.

  • No, I saw you walk into that

  • [strained] Yep!

  • [groans] It's fine!

  • All right, that's it, I'm out of battery and out of patience. We are done.

I'm not saying that's how it should be.

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B1 中級

YouTubeの著作権システムは壊れていない。世界はそうだ (YouTube's Copyright System Isn't Broken. The World's Is.)

  • 3 0
    林宜悉 に公開 2021 年 01 月 14 日
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