By Krisha Mae Cabrera
YouTube creators Ethan and Hila Klein, together known as “h3h3,” have over 6.2 million subscribers on their main channel “h3h3Productions,” 2.1 million subscribers on their secondary “Ethan and Hila” channel, and an additional 1.8 million subscribers for their podcast channel.[1] The creators attribute their rise to fame to their parodies, skits, and commentary videos. H3h3 is one among the increasing number of creators that are able not just to earn money from YouTube, but to make a career out of it. This phenomenon has presented a new world of legal issues for the platform, the most contentious of which pertains to copyright and fair use.
In 2016, h3h3 was sued for a commentary video in which they criticized creator Matthew Hosseinzadeh for his “cringe-worthy” video[2]. H3h3 won the lawsuit because there was “no doubt” in the way their video abided by the factors of fair use.[3] The lawsuit culminated in an examination of how YouTube handles the doctrine of fair use, and YouTubers considered this case a landmark victory symbolizing Youtube creators’ fight for free expression, satire, and critique. Presently, however, two years after the lawsuit concluded, the h3h3 victory seems almost lost or forgotten amidst an increasingly tumultuous landscape for fair use on YouTube. Creators all over the platform decry a consistent pattern of receiving allegedly arbitrary penalties on their channels, penalties they argue seem to neglect the notion of fair use.[4] These penalties include demonetization, bars from content production, and at times even legal action. In a controversy that pits YouTubers against YouTube, the copyright debate uncovers a system creators claim is vulnerable to abuse and inconsistent with fair use protection.
The Copyright Strike and Claim Systems
A main concern with YouTube’s current system for dealing with matters of copyright protection and fair use is that its process for claiming copyright infringement and penalization seems to put the advantage on claimants and enables them to easily file false claims. YouTuber Danny Gonzales, whose channel has over 2.2 million subscribers has had his share of claims from companies and creators whose videos he had criticized. After a film company filed a claim against a video Gonzalez uploaded, Gonzalez details that he had to decide between disputing the claim or pursuing legal options.[5] He summarizes the dispute process and highlights exactly what makes it so frustrating for so many YouTubers:
“YouTube just sends the dispute to the person who claimed it in the first place— meaning the movie studio— and [YouTube’s] like ‘Hey! Is this right?’ and the movie studio’s probably like ‘Yeah. And also can I put a copyright strike on this person’s channel? And if they get three of those their channel gets deleted?’ And YouTube’s like ‘Sure! That makes sense.’”[6]
Though humorous, Gonzalez’s summary is not too far from the process YouTube itself enumerates. YouTube’s set of penalties for users that may be infringing on copyrighted material revolves around copyright claims and copyright strikes. The copyright claim system is in place so that “companies that own music, movies, TV shows, video games, or other copyright-protected material” can claim videos that use their material without permission. Claimants can choose “to block material from YouTube” or allow the video to remain live and monetized, albeit they will receive the revenue instead of the video’s uploader.[7] The copyright strike mechanism allows copyright holders to file “strikes” against channels that use their content without permission.[8] While this system seems well-intentioned as a logical means of protecting copyright, it fails to consider the undue consequences it has on creators whose videos may be well within fair use but face false claims.
Creators who earn money from YouTube do so through the ad revenue they generate, a process known as monetization. Receiving a copyright strike may result in demonetization. Three strikes results in full termination not just of a channel but also of the account.[9] As Danny Gonzalez expressed, disputing a copyright strike is difficult because YouTube gives 3 options: (1) wait for it to expire after 90 days; (2) contact the person striking to ask for a retraction; or (3) submit a counter notification, which requires submitting personal information that will be forwarded to the claimant and opens the gates for the claimant to “use this information to file a lawsuit against [the uploader] in order to keep the content from being restored to YouTube.”[10] The copyright strike system presents a frustrating set of problems for creators who note its vulnerability to abuse that ranges from mere trolling to doxxing and even extortion.[11]
Later in the aforementioned Danny Gonzalez video, he talks about one instance in which a company whose video he had criticized filed a copyright claim on his critique video. Gonzalez recalls, “Somehow I got the video back up by just tweeting that I was reviewing my legal options. And they immediately accepted my dispute… [and] dropped the copyright claim.” Gonzalez says that, incredulously, he tweeted the same sort of “legal options” rhetoric once more for the recent movie studio claimant and that doing so worked again to restore his video. He ponders, perhaps semi-facetiously, “I don’t know why reviewing my legal options is the scariest s**t to companies that falsely claim my videos.”[12]
Legal Options: “The Scariest S**t”
The h3h3 case may show exactly why legal recourse would frighten false claimants. The court in the h3h3 case provides the initial details of the copyright claim that echoes similar claims against Gonzalez’s video and across YouTube. Namely, Hosseinzadeh filed the claim to YouTube “regarding the Klein video; YouTube took down the Klein video the same day.” h3h3 disputed the claim “on the basis [their] video was… fair use” and three days later Hosseinzadeh filed the action.[13]
The action in question resulted in a costly and heated lawsuit with both prominent and smaller YouTubers alike supporting h3h3 vocally and financially by contributing to their legal fees.[14] The saga was one that opened a large conversation on the platform regarding fair use and free expression. A conversation that now may be all the more dire to reopen.
For one thing, the h3h3 case shows the great disparity between YouTube’s arbitration system and the way courts would handle fair use. The court strongly expressed how h3h3’s videos doubtlessly fell within fair use in the dispute against Hosseinzadeh. It further stated that h3h3’s videos were “quintessential criticism and comment”; that “it is clear to the court” that h3h3 did not misrepresent their dispute to the claim; and that the evidence presented was “undisputed.”[15]
For what seemed like such a clear-cut case for a court, YouTube’s system is not one that arbitrates before it penalizes. Canadian Member of Parliament David Graham, in speaking on copyright reform, observed that YouTube functioned under a “guilty until proven innocent” policy.[16] Consequences come to creators who receive claims and strikes regardless of whether such claims are valid. And many times, claims have been abusive and retaliatory especially against critical videos. Hence, creators feel that, if left unreformed, YouTube’s copyright arbitration system may instead be a tool to suppress free expression and critical speech under the guise of protecting copyright.
YouTube, Watch Your YouTubers
Felix Kjellberg, known for his channel “Pewdiepie,” is the most-subscribed to independent creator on the platform with over 95 million subscribers (as of the time this article was written).[17] After a long back and forth as the overall most-subscribed to channel, he is now second only to T-Series, a massive Indian record label and film company.[18] Having had his own struggles with YouTube’s copyright arbitration system, he frequently discusses or satirizes the system and brings into light other YouTubers’ experiences as well. In one video that garnered over 8 million views, he featured and commentated on YouTubers’ experiences with facing retaliatory copyright strikes.[19]
One of the experiences, for example, involved another creator’s critique video being taken down through a claim filed by the user it had been critiquing. The video was eventually restored because “most likely, thanks to a lot of YouTubers raising their voice… and a lot of public outrage on Twitter, the copyright claim got removed.”[20]
It is worth noting that Kjellberg himself does not go unheard. In another video, he expressed a need for YouTube to improve communication with its users, and YouTube’s CEO, Susan Wojcicki, commented on the video, expressing appreciation for his responses and emphasizing YouTube’s work to improve.[21]
Aside from Kjellberg’s coverage of the issue through his massive platform, other rapidly rising YouTubers actively broadcast their frustrations as well. For example, YouTuber Gus Johnson, who is nearing one million subscribers, released a video about music studios copyright claiming his videos. Johnson had uploaded a video in which he talked about an issue relating to the song “Bohemian Rhapsody,” without even playing “a microsecond of the song,” only to wake up to his video being “manually claimed— not even automatic autodetection.” He continues to note the abusive nature of music companies copyright claiming videos and how they affect YouTubers’ earnings and livelihood.[22]
He adds, “I’m just a kid in my room. Half the site is… kids in their room. I don’t know what to do about this legally but I think that it’s incredibly important that we bring this to people’s attention. That we talk about this.”[23]
Moving Forward with a Common Enemy: Article 13
Recently, the European Parliament passed the controversial Article 13, which forces tech companies to police content through copyright filters lest they themselves be found liable. While YouTube already has the copyright claim and strike systems in place, both the platform and its creators fear the ramifications of the measure. YouTube fears the difficulty of arbitrating who owns the rights to a video’s content.[24] YouTubers fear that Article 13 will bring an even more draconian system of policing content or that to protect itself from liability as a company, YouTube will block content even more aggressively.[25]
Before Article 13 passed, a viral petition against it garnered 5 million signatures as netizens dreaded what it could mean for online expression.[26] Among those most vocal against the measure was the YouTube community. In a February 2019 Creator Letter, YouTube thanked the community for bringing awareness regarding Article 13’s consequences.[27] Some creators have also expressed encouragement regarding YouTube’s response.[28]
What results is a copyright battle that, for once, unites YouTube with YouTubers. In light of Article 13 and the ever-changing landscape of the internet’s relationship to copyright issues, perhaps it is time for YouTube to fully realize its role as a platform dependent on— well, YouTubers. In doing so, YouTube must reverse its oft-reviled disconnect from its community in hope for a more symbiotic dynamic that will pay off in the long run for both the platform and its creators.
[1] h3h3Productions, h3h3Productions, YouTube, https://www.youtube.com/user/h3h3Productions/channels (last visited Apr. 1, 2019).
[2] See generally Hosseinzadeh v. Klein, 276 F. Supp. 3d 34 (S.D.N.Y. 2017).
[3] Id.
[4] Ernesto, YouTube’s Copyright Protection System is a Total Mess, Can it Be Fixed?, TORRENTFREAK (Dec. 22, 2018), https://torrentfreak.com/youtubes-copyright-protection-system-is-a-total-mess-can-it-be-fixed-181222/.
[5] Danny Gonzalez, I Have Been Having Some ISSUES, YouTube (Feb. 23, 2019), https://www.youtube.com/watch?v=Fn8gITxmaSU.
[6] Id.
[7] What is a Content ID claim? – YouTube Help, GOOGLE, https://support.google.com/youtube/answer/6013276?hl=en&ref_topic=2778545 (last visited Apr. 3, 2019).
[8] Copyright Strike Basics – YouTube Help, GOOGLE, https://support.google.com/youtube/answer/2814000?hl=en&ref_topic=2778545 (last visited Apr. 3, 2019).
[9] Id.
[10] Counter Notification Basics – YouTube Help, GOOGLE, https://support.google.com/youtube/answer/2807684?hl=en&ref_topic=2778545 (last visited Apr. 3, 2019).
[11] Doxxing is the act of revealing personal, private information about an individual. Shoshana Wodinsky, YouTube’s Copyright Strikes Have Become a Tool for Extortion, THE VERGE (Feb. 11, 2019), https://www.theverge.com/2019/2/11/18220032/youtube-copystrike-blackmail-three-strikes-copyright-violation.
[12] Danny Gonzalez, I Have Been Having Some ISSUES, YouTube (Feb. 23, 2019), https://www.youtube.com/watch?v=Fn8gITxmaSU.
[13] See generally Hosseinzadeh, 276 F. Supp. 3d 34.
[14] h3h3Productions, A New Chapter for Fair Use on YouTube, YouTube (May 26, 2016), https://www.youtube.com/watch?v=ix4mTekl3MM&list=PLoXWMOLzG4qogpU_4Yd93AYEgS7xjqmUC&index=3.
[15] See generally Hosseinzadeh, 276 F. Supp. 3d 34.
[16] Ernesto Van Der Sar, YouTube’s Copyright Protection System is a Total Mess, Can it Be Fixed?, TORRENTFREAK (Dec. 22, 2018), https://torrentfreak.com/youtubes-copyright-protection-system-is-a-total-mess-can-it-be-fixed-181222/.
[17] PewDiePie, PewDiePie, YouTube, https://www.youtube.com/channel/UC-lHJZR3Gqxm24_Vd_AJ5Yw (last visited Apr. 3, 2019).
[18] PewDiePie, We lost (not happy), YouTube (Mar. 20, 2019), https://www.youtube.com/watch?v=5BXMDIVioNE.
[19] PewDiePie, STOP DOING THIS! – Copyright Striking Criticism etc., YouTube (Jan. 11, 2019), https://www.youtube.com/watch?v=yMuEeUyMfUo.
[20] Id.
[21] PewDiePie, Demi Lovato DID a WHAT?! – YouTube Admits MASSIVE OPSIE PEW NEWS, YouTube (Feb. 7, 2019), https://www.youtube.com/watch?v=kLM_9gBZIqY.
[22] Gus Johnson, YouTube’s Content Claim System is Out of Control, YouTube (Dec. 17, 2018), https://www.youtube.com/watch?v=Tqj2csl933Q.
[23] Id.
[24] Natasha Bernal, Article 11 and Article 13: What You Need to Know About the New Copyright Directive, THE TELEGRAPH (Apr. 1, 2019), https://www.telegraph.co.uk/technology/0/article-11-article-13-need-know-new-copyright-directive/.
[25] Julia Alexander, YouTube Creators Are Still Trying to Fight Back Against European Copyright Vote, THE VERGE (Mar. 27, 2019), https://www.theverge.com/2019/3/27/18283800/youtube-copyright-directive-article-13-memes-grandayy-philip-defranco-european-union.
[26] Daniel Sanchez, Anti-Article 13 Petition Reaches 5 Million Signatures – and Counting, DIGITAL MUSIC NEWS (Mar. 22, 2019), https://www.digitalmusicnews.com/2019/03/22/anti-article-13-petition-signatures/.
[27] YouTube in 2019: Looking Back and Moving Forward, YouTube CREATOR BLOG (Feb. 5, 2019), https://youtube-creators.googleblog.com/2019/02/youtube-in-2019-looking-back-and-moving.html.
[28] Julia Alexander, YouTube Creators Are Still trying to Fight Back Against European Copyright Vote, THE VERGE (Mar. 27, 2019), https://www.theverge.com/2019/3/27/18283800/youtube-copyright-directive-article-13-memes-grandayy-philip-defranco-european-union.
