After the Lofi Girl takedown, can YouTube protect users from copyright claim abuse?
Katharine Trendacosta of the Electronic Frontier Foundation walks us through the legal and systemic issues that keep abusive copyright claims on YouTube.
Earlier this week, two of YouTube’s most popular and influential radio streams suddenly disappeared. Lofi Girl is the 10 million subscriber-strong YouTube account behind the seminal “lofi beats to study to,” streams which have logged over 668 million views over two years. It’s a massive presence on YouTube by any measurement, yet on Sunday the channel announced that the streams "lofi hip hop radio - beats to relax/study to" and "beats to sleep/chill to" had been deleted by a single false copyright strike, filed from someone purporting to be a Malaysian record label. Within hours, YouTube apologized and pledged to restore the streams, but not before the issue became a flashpoint in one of YouTube’s most persistent issues.
For many YouTube users, abuse of the platform’s copyright enforcement system is a significant frustration. Any user that gets “three strikes” of either copyright claims or community guidelines claims will have their channel terminated, a policy that has seen trolls extort users by falsely asserting copyright on the material used in their videos. Getting any sort of abusive claim resolved through YouTube’s complicated appeal system can lead to a dead end: sometimes, you have to be a massively popular account with a vocal following to get any sort of joy.
This is what Lofi Girl pointed out in a subsequent statement: most creators with the same problem don’t have their reach. “It's 2022, and there are countless smaller creators out there,” the channel wrote, “many of which engaged in this discussion, that continue to be hit daily by these false claims on both videos and livestreams.”
YouTube has begun acknowledging the problem in recent years even if the abuse is still occurring. In its first Copyright Transparency report, YouTube counted over 2.2 million overturned copyright claims filed between January and June of 2021 (729 million claims were filed through Content ID, YouTube automated copyright enforcement used by selected holders).
A platform as big as YouTube – 500 hours of video are uploaded every minute – will inevitably have gaps in its enforcement. But why do cases like the Lofi Girl takedown happen, and what can YouTube do to better protect its users? This week, The FADER spoke with Katharine Trendacosta, Director of Policy and Activism at the Electronic Frontier Foundation, about YouTube’s copyright policies, where they can improve versus where they’re bound by law, and why Content ID could portend a darker future.
The FADER: When this story first emerged, what was your initial reaction?
Katharine Trendacosta: Pretty much anytime something like this happens, my reaction is usually something along the lines of “yeah, that seems about right.” The system is incredibly prone to abuse.
That's what Lofi Girl hinted at in their second statement. What is it specifically about how YouTube is structured that makes it prone to abuse?
So there are two systems in place. From what I can tell, this particular situation was DMCA related, rather than Content ID. Content ID is an entirely voluntary disaster that YouTube has implemented whereas the DMCA is a legal regime that YouTube takes advantage of in the sense that it has legal requirements it has to meet, in order to not be liable. So when they get a takedown, they have to honor it.
The copyright strike system is tied to the DMCA and not the Content ID. However, if you challenge a Content ID match, you can get a DMCA takedown in response, and that can then turn into a copyright strike. So it's all messily intertwined in a way that is very difficult to navigate, which is why it's easy to abuse.
Because this is a DMCA case, and thus connected to existing law, would you say in a specific case that YouTube was erring on the side of caution by taking down the live streams?
Yeah, almost always. The system incentivizes the platforms to err on the side of caution, because it tells them that once they get a takedown, they need to act quickly. And so most take things down under the mistaken belief that the counter notice system will counterbalance that. You notify the content creator that you've taken it down, at which point they are given the opportunity to counter notice and say, “this takedown is wrong... either it's fair use that I have the right to use it, or I made it, and this person does not know what they're talking about, etcetera.”
The problem is that the counter notice system is incredibly intimidating. The average person is just going to take the hit because in order to file a counter notice, you have to turn over your real name, your address, all your contact information and agree to jurisdiction in a US court, so that if the other side decides to file against you, you have agreed to that. And so most people, especially people who just don't want to turn over their identifying information, just will take the takedown and move on. So the counter to the system doesn't truly do what people think it does... that is battle these bad takedowns. [YouTube’s] hands are kind of tied cause the law prescribes that.
So to what extent are YouTube's hands not tied? What can they do to make things better while following existing law?
They can investigate the takedowns they get. A couple of years ago, someone was filing false takedowns and basically holding people hostage saying, “If you don't pay me, I'll file another one. You'll fall afoul of the three strikes rule and you'll lose your account.” In that case, YouTube sued that person themselves, rather than the user doing it, which is a pretty good deterrence.
The other part that I would say that YouTube's hands aren’t tied on, is that three strikes policy. So the DMCA requires that they have some form of a frequent repeat infringer policy: that if someone gets a bunch of takedowns, there is some way that they lose their account. But it leaves it up to the platform to sort of determine what that looks like. And that means that YouTube does have some flexibility.
The three strikes system is the biggest hammer over many people's heads because they've invested a lot into their channels and the loss of their channel and the deletion of all their videos and the loss of their subscribers, is a big deal.
From what I can gather, copyright law seems incredibly outdated and hasn't been caught up for this new age of streaming.
It's less that it is outdated, and more that the traditional big corporations who run... who bases in Hollywood and in Nashville and so on... the labels and the movie studios desperately don't want it to catch up and also work very hard, not only to keep it that way, but to push it back even further. They think that DMCA doesn't do enough. And they would like it to be harsher. There's a bill in the Senate called The Smart Copyright Act, which would require basically any platform to have something like Content ID, only probably worse.
What might that look like?
Anything mandated by law is worse, because they have to do it. And as bad as Content ID is, at least if it messes up badly, at least you can fix it. But if it's mandated by law, they wouldn't be able to.
And then the other part is, quite frankly, that this is what major industries want, but it's an at-fault on the right to free expression and the right to access information. The idea that a 2% reduction in piracy is worth a wholesale reduction of freedom of expression is wrong. That's not what copyright is for. It's actually the opposite.
The idea of copyright is that it incentivizes creativity by giving creators the ability to monetize their creations. It's not a perpetual money generating machine for corporations that allows them to stifle competition in the form of other people making things. That's not supposed to be what it's for or allows them to profit off of other people.