Experienced Points: How YouTube Can Fix Itself

By Shamus
on Mar 14, 2016
Filed under:
Column

My column this week is more cathartic than helpful. It shows a number of ways YouTube could make life better for everyone at no cost to themselves (and in some cases, for a small profit) but they won’t because the human beings at Google are insulted from public interaction by many layers of obfuscation, and company policy changes at a glacial pace.

Also: YouTube rolled out YouTube Gaming this week. As far as I can tell, it’s my usual YouTube feed with non-gaming stuff filtered out, with a black background. I don’t have anything bad to say about it, but I do find myself shifting back to YouTube Prime after just a couple of minutes. It’s not bad, it just doesn’t seem to offer me anything I need. But maybe it’s aimed at the Twitch streams and PewDiePie crowd? I honestly don’t know.

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From the Archives:

  1. Merzendi says:

    Insulted from public interaction, or insulated? :P

  2. Blue_Pie_Ninja says:

    Youtube Gaming really offers nothing new compared to Youtube Prime. Except maybe if you prefer a black background.

  3. silver Harloe says:

    “YouTube makes its money from advertising, and most of their viewership isn’t from movies owned by gigantic media companies, it’s from hundreds of thousands of small-fry content creators with less than 100,000 subscribers.”

    According to my possibly inflated recollection of something I heard from CGPGrey, YouTube is basically a music video delivery service with a tiny crust of ‘other’ comprising everything from PewDiePie on down. I am currently poking through the various back issues of Hello Internet to find what % he quoted exactly, but my vague recollection was “north of 99% music videos” – a current Google search says like 40% music, so my recollection is probably exaggerated.

    My impression was that they wouldn’t care, and would probably not even notice, if everyone you’ve ever heard of on YouTube switched to Patreon. But my impression may be off here – nevertheless, I think they can ignore the current complaints and protest not just out of heartlessness, but also because they are in no danger of losing any real income.

    Remember also: if I claim your video, I can also turn on ads for it, even if you had them turned off.

    • ” if I claim your video, I can also turn on ads for it, even if you had them turned off”
      Not only that, but you’d get the ad revenue, and when the channel owner counter/dispute your claim you get to keep the ad revenue.
      And if the channel owner had ads running previously then you get their ad revenue.
      And it can take a month or so to counter a claim (if the claimant stalls for time by waiting 30 days).

      This stuff has been happening for a while. It’s odd that such Copyright Fraud and “actual” theft of money is allowed to happen while big labels (and their lawyers/automated systems) go after videos babies dancing to Prince heard in the background on a radio or something.

      Why Youtube haven’t taken steps to fix this kind of Copyright Fraud and Revenue Hijacking I have no idea. With serious issues like that I wonder why isn’t there a federal investigation about this? I got no clue about US federal law but I’d assume that Fraud and Interception of actual money are federal crimes? (unlike Copyright Infringement which is under civil law, right?)

      Youtube is as messy as the Steam Store is now.

      • Cordance says:

        What happens if you make a second account and claim copy write on your own work on a new video? Does this stop someone else claiming their own writes on the work? Then at least you keep your revenue stream open by “stealing” your own money yourself.

        • Interesting theory. sadly it won’t work for long as I think it’s 3 claims against a channel and the channel get removed I think?

          • Nidokoenig says:

            Three full claims, but if the claim gets rejected or the time for the claimant to respond runs out, it no longer counts. One of the WTFU things is that larger channels can basically only contest two claims at once, in case the claim gets upgraded to a strike in the claimant’s 30 day response time. Some try to work around this by having multiple channels for different subjects, but how kosher that is hasn’t been tested.

      • Peter H. Coffin says:

        Why haven’t they? Simple enough: it’s law-compliant, absolves YouTube and Google of a lot of potential risk, and costs them essentially nothing because they don’t care who they share ad revenue with so long as it’s not more money. Finally, there’s essentially no place for the product (videos) to market themselves elsewhere that’s anywhere near as good as YouTube, much less better. At least until a producer is willing pay for the hosting, bandwidth, and run their own advertising and legal departments.

  4. Loonyyy says:

    As a few people pointed out over there, the problem is larger than people on the net understand.

    It’s a question of finances and liability.

    If someone makes a claim, then Youtube could accept it or dispute it, a little similar to the user. If Youtube wants to take the ad money and put it aside, it’s going to have to defend the video’s position and contest it. That’s just not going to happen. They have to pay for lawyers, and the ad revenue just isn’t worth it for them. They probably could stash the ad money aside and contest the claim. But they’d have to pay a lawyer, for every claim, and that’s expensive, far more so than the ad revenue, even if they had access to that. So they don’t. Unfortunately, lost ad revenue doesn’t count for more than lawyers fees.

    Similarly, Youtube has to demonstrate that it’s taking down copyrighted content as soon as they’re made aware of it, hence ContentID etc. Barring the obvious scammers, a lot of these are legitimate strikes on content, that may be exempt under fair use, but again, Youtube has liability here. If you want to slap a finder’s fee on it, then you’re going to have to settle for also losing a suit for violating the conditions of “safe harbour” for copyrighted works. Hope the fee is worth it. They have to show that they comply with the notice and takedown procedures in the DMCA-they are the defendant in this case.

    Perhaps they don’t have to be so helpful with Content ID, however, you can see what’s happened to those who haven’t been. They’re again, demonstrating compliance with the DMCA, and demonstrating that they take every effort to remove copyrighted content. Which helps avoid prosecution.

    ContentID is here to stay, probably even in it’s current form.

    The advertising revenue is likely going to continue being transferred.

    If you want to talk how to fix YouTube, it’s probably not going to be a perfect fix. Corporate takedowns are likely to be around, even if fair use should apply. They can, and should, crack down on the dodgy claims, fraudulent claimants, etc. And if your ad revenue is stolen, then you’d have a case for suing them, which we don’t see happening, because to the video makers, the money doesn’t add up. Voiding these accounts (And keeping track of the users involved) is a good start. Potentially making the flagging process more stringent, making violators open to further prosecution, would probably cut down on it. You can make a false flag, steal the revenue, and then just do it again, without filing the claim, which opens you up for a felony perjury charge. That shouldn’t be an option.

    But at the end of the day, this is part of what keeps the lights on at YouTube. As frustrating as it is for those uploading videos, remember, that they’re a business that doesn’t actually make a particularly significant profit for Google. Not to say that you need to go easy on them, but that much of this is the consequence of their business interests, and many of the suggestions ignore exactly how feasible they are cost wise, and at the end of the day, that’s Google’s metric there. It sucks if they lose viewers due to content creators going down, it sucks more if they run at a loss to defend every video that goes up.

    And for the big corporates taking down videos, were they to spend legal effort on those-well, it’s why you don’t expend legal effort-it’s expensive and time consuming. What we can realistically hope for there is high profile cases bringing attention to this and making it embarassing for them.

    • *steps on soapbox*

      You mention the DMCA, but the ironic thing is that there is no actual DMCA claims filed in these cases, just a Youtube defined copyright claim.

      As far as I understand it this happen:
      John Smith get’s a copyright claim on their video (or part of it) by company Big.
      The video gets either taken down or get ads slapped on it or thew ad-revenue is hijacked by company Big.
      John contest this claim (stating either fair use or that they themselves are the copyright holder).
      Company Big waits 30 days before responding (the maximum they can wait I heard) and decides to uphold their claim.
      John can now decide to dispute the claim.
      At this point company Big has to decide to either drop the claim or file a real DMCA claim and take John to court.
      Now usually in these cases the lawyer (Mr. Dick) at the company Big will drop the claim because at this stage they’d obviously know they have no claim and if they file an actual DMCA claim they’d be committing perjury if going to court with it.

      I’ve heard of a bunch of videos being taken down or ad revenue being hijacked, and people contesting the claim and spending months getting a video back up again.
      I’ve never hard of any getting to the stage of a actual DMCA claim or the claimant taking them to court.

      The threat of a DMCA claim is being used but no DMCA claims are actually made (unlike Google Search which gets like millions of takedowns/claims per months).

      Now Youtube is in full right to police the content on their service, it’s just a shame it’s so abused.
      Small youtubers do not have the money or the legal help needed to take company Big to court, and Mr. Dick knows it.

      Unless the EFF or lawyers doing it Pro-Bono steps in then the only people that could drag company Big to court to face the consequences would be TotalBiscuit, or Jim Sterling etc.
      A lot of the larger youtubers are also insulated from a lot of the claims through the content network they are part of as any claims are sent to them or forwarded to them.

      A company needs to pick a fight with one of the largest youtubers and end up in court to set precedence before his mess gets looked at I suspect.

      Also “Corporate takedowns are likely to be around, even if fair use should apply.” sadly it’s not all fair use, by that I mean some of the content is original content. And I suspect that there will be takedowns against those i the future still.

      And I’m not just talking ContentID miss-identification or similar but intentional takedown of critique and such. A claimant can just “sit on it” for a month or so and then release the claim, their goal achieved; sensorship.

      If Youtube fixes nothing else then it’s at the very least “that” they need to prioritize.

      *steps off soapbox*

      • Supah Ewok says:

        Where the DMCA enters into this isn’t about the claims. It’s about the effort and intent. If Youtube didn’t have a system in place like this, they’re liable under DMCA from anybody willing to take a shot at them. With the system, the companies can only go after the “infringers,” and don’t have a strong case against Youtube for enabling them, cuz Youtube can point at their system in court and say “look, we tried.”

        Now moving within the system, in order for Youtube to dismiss a copyright claim, they’d have to have a lawyer draft an opinion for the judge stating why they think the claim isn’t valid. Which means that the lawyer would have to look at the claim, see whether the video is really infringing, and then draft a document and deal with a judge. Multiply that by hundreds of claims a day, and that’s immensely costly to a website that only breaks even. And it’s not hundreds of claims a day, it’s probably thousands.

        So they enforce all claims, until the video guy contests the claim, THEN they spend resources looking into it.

        In all honesty, the system actually works for weeding out the chaff. Sure, it sucks for the little guys producing what really is original content, but most claims are on things like uploadings of music videos and such, because that’s actually the majority of Youtube. And those claims are almost entirely valid. Taking a more proactive role in the 10% or whatever of content producers would mean having to expend the same resources for the 90% of copyright infringing music uploads. It’s not cost effective. It’s not fair, but it is sensible.

        The system as it is, is probably here to stay. Some improvements could be made, like putting the lost ad money into escrow, but a guy on the Escapist who claims to be in the know states that in order for that to happen, the lawyer still needs to write an opinion on a case by case basis for the judge, so it’s the same problem.

        • ThirteenthLetter says:

          > The system as it is, is probably here to stay.

          Well, so is North Korea.

          Frankly, if YouTube is incapable of functioning without brutalizing its small content creators at the behest of major corporations it should be polite enough to shut down and let someone else take a swing at it. We got by without YouTube in the past, we can get by without YouTube in the future.

          • Supah Ewok says:

            Cutting off the nose to spite the face, eh? You realize that Youtube’s existence and popularity is why those small content creators can do what they do at all, right? Occasional interruptions notwithstanding. And that the next entity to give the job a shot will be bound by the exact same legal situation Youtube faces, right?

            And that’s not touching the moral implications of encouraging suicide for the sake of “politeness”, even if it is a corporation, especially since politeness in this case is “Does a thing I do not like.” By that logic the IRS ought to jump into a funeral pyre…

            • “even if it is a corporation” are you referring to Youtube or the IRS here? (I’ve heard claims that the IRS is actually a corporation rather than a federal branch)

            • ThirteenthLetter says:

              “You realize that Youtube’s existence and popularity is why those small content creators can do what they do at all, right?”

              You mean, give YouTube free content which they monetize?

              It’s the whole advertising model for the Web that’s really at fault. Giant corporations getting creative people to provide content for nothing, wrapping it in megabytes of pop-up ads and malware, and then selling it back and forth to each other, with no legitimate money entering the system at any point. It can’t survive and the longer it staggers on the more damage it’s going to do when it falls over. But it has to fall.

              • Nidokoenig says:

                It does make me wonder, are we at the point where people can make WebMs, distribute them through file sharing sites or imageboards, and just direct people to Patreon at the end? Randos can mirror it on YouTube if they care.

                • Supah Ewok says:

                  No, I don’t think so. The point of Youtube is that streaming is a lot more convenient and eats less bandwidth than downloads. Plus, I’ve never heard of getting a virus from a stream.

                  Video creators live and die by word of mouth, and anything that makes it more difficult for that to happen is a death sentence.

            • Kelhim says:

              In this very article there are suggestions on how a more reasonable system could look like and still be profitable and legally sound. It’s understandable why YouTube won’t change their system, but why couldn’t competitors come up with a different one?

              • Supah Ewok says:

                What competitors? The other ones that could have competed a few years ago, like Viddler, drove themselves into the ground.

                People have short memories. Youtube doesn’t have an effective monopoly because it bought out or kicked down all of its competition (well, it wasn’t the only factor at least), it’s because it was the best service available.

                The article itself is operating on the assumption that the majority of Youtube viewership is on small content creators. This is false. The majority of Youtube viewership is of music and music videos. 3/4 points Shamus makes (escrow, finder’s fee, looking for scammers) are invalid because they all require a lawyer, and for reasons I’ve already stated, that works against YouTube’s interest. The only point Shamus makes that Youtube could possibly followthrough on is requiring complaints to have more details on the exact part of the video that is being claimed.

                • Shamus says:

                  I don’t see how holding money in escrow requires a lawyer. You make the case elsewhere that YouTube can give the money to whoever they like, or keep it for themselves. They can simply refuse to pay out while a video is under dispute. This is the central problem: There’s a financial incentive to cheat and no cost or risk to do so.

                  It’s a simple mechanical change. Unless you’re going to hire a lawyer to do the coding, I don’t see where one is needed.

                  • Supah Ewok says:

                    My source is the fellow on the Escapist who claims to be part of the process of handling IP issues. He says, “Putting the money into escrow would only be possible legally if the lawyer writes an opinion on the validity of any claim. The whole point of the current system is that they dont have to pay a lawyer.”

                    I assume he is correct on that count because the current Escapist Editor backs him up on his other points, providing quotes from the relevant laws. Admittedly that doesn’t make him necessarily right on THIS point, but if the guy has the job he claims, which his knowledge seems to support, I’m gonna give him the benefit of the doubt.

                    • Shamus says:

                      His argument makes no sense to me. On what grounds could it possibly be illegal? Which party could sue them, and for what?

                      See, a DMCA takedown notice means the content gets taken down. There’s no allowance for “leave it up, but give the money to someone else”. This is something YouTube invented as an alternative to a real, binding takedown notice. It works however they say it does. A company could refuse it in favor of a takedown: “I don’t want the stupid ad money, just take down the video” but they have no legal right to ad income simply because content ID flagged it.

                    • Supah Ewok says:

                      According to Mr/Ms Albino Boo: “If someones else is paid or due to be paid for the use copyrighted IPs and then the copyright holder makes the claim then the money is legally due to the copyright holder. So Youtube by entering into contract to pay the uploader is legally bound to pay the copyright holder.
                      If Youtube does not pay the claimant without disputing the copyright claim then a standard civil debt recovery case will get a court order to pay the claimant. The only way to stop a judgment in favor of the claimant is present evidence that its fair use or the claimant does not hold the copyright. That takes lawyers and money. In addition by forcing claimants to go to court for each and every claim as a debt recovery means that Youtube is costing copyright holders money to recover payments that are rightfully theirs. This means Youtube could be sued as unresponsive to to copyright claims and/or a criminal investigation.”

                      Furthermore, “The system is designed so at no point does google assume liability for deciding who is the rights holder. When something is uploaded, google automatically assumes that the uploader is the rights holder. When google receives a claim to those rights from a 3rd party it automatically assumes that the claim is true and passes on the details of the claim to the uploader. The uploader has full access to all legal remedies with the claimant. At no point is google the rights holder or makes any investigation to who is the rights holder. No claim against google is under fair use or otherwise because google is merely acting as host, the only dispute is between 3rd parties. As I said before the onus is on google to demonstrate in fair and reasonable manner that copyrighted IPs are not been shown on its platform. The only way that google cannot pay the claimant is to take liability and provide legally admissible evidence that the claim isn’t valid. That costs money and risk not only the particular lawsuit but losing safe harbour status and a multi billion law suit.”

                      If you want to continue the conversation I really suggest you talk to him over on the Escapist, since we’re now so far out of my depth I can’t even slightly paraphrase his words into looking like my own in order for me to appear smart on the internet.

                    • Abnaxis says:

                      @Ewok: The problem, which I think Shamus is getting at, is that the Boos’ argument is predicated on the false assumption that “a claim has been made.” If a DMCA claim were to take place, I would agree that Google would indeed be liable if they did not treat every DMCA claim as valid and let the courts settle it out.

                      The problem is, ContentID does NOT issue claims. It essentially performs a Google search for copyrighted material, then AUTOMATICALLY (without any intervention from YouTube or the alleged rights-holder) transfers copyright privileges on the hits from the search algorithm to the alleged rights-holder before the rights-holder has actually made a claim. That goes well beyond what Google needs to do to avoid liability. The only time Google should be unquestionably transferring rights is after an actual, legally binding claim has been filed.

                      There would be no liability involved in holding the money until either A) an actual, official, legally-binding DMCA claim has been made (at which point the revenue would transfer to the claimant and they can settle in court) or B) the grace period for allowing the claimant to file such a claim has run out.

                    • guy says:

                      Actually, the DMCA has no provision for transferring money; it only allows for takedowns, so any other option is at Youtube’s discretion and works how they say it works and if the claimant doesn’t like the option they can file a DMCA claim. Also, I find it really dubious to say that they’d be liable for not paying either party while a dispute is ongoing but aren’t for paying the claimant while a dispute is ongoing. They’re automatically assuming that the original claim is true and the counter-claim is false. I see no reason they’d be liable under this set of rules:

                      1. Video is uploaded, uploader gets paid.
                      2. Content ID claim is made, money goes to claimant.
                      3. Uploader disputes claim, money goes into box.
                      4a. Claim is dropped, money gets transferred to uploader.
                      4b. Claimant takes uploader to court, money goes to winner in court.

                    • Abnaxis says:

                      @guy: We’re kinda heading off into hypothetical “I wish it worked this way land,” but I would consider the revenue disputed as soon as a ContentID claim is made, not when the uploader disputes the ContentID hit. Presumably, the uploader thought what they were doing was permissible when they uploaded, and ContentID is disputing that original assumption. Therefore, money should go into a box as soon as ContentID flags the video.

                • Joe Informatico says:

                  I thought YouTube had an effective monopoly because no one’s figured out a profitable way to host a streaming video service without subscribers, and Google’s willing and able to burn cash to maintain its effective monopoly until it does figure out a way to make it profitable.

  5. Abnaxis says:

    The cynic in me thinks that what it’s really going to take to tamp down on ContentID, is for the someone like the EFF to take another pro-bono case like the dancing baby–not against Google, but against one of the scammers.

    If they can establish the precedence, in court, that a scammer stealing ad revenue is breaking Copyright Law (which they are–earning revenue off of someone else’s work is the definition of infringement), all of a sudden Google stops being “DMCA Compliant” in the eyes of the law, and starts being “accessory to grand theft” (which they are, by blindly giving criminals the tools to fraudulently steal revenue)

    The Big Guys don’t even need to get sued, just the threat would be enough to reshape ContentID.

    • Echo Tango says:

      A class-action lawsuit against Google would probably force them to change too. Pretty disheartening when big companies inevitably start doing shady stuff. :S

      • Abnaxis says:

        If Google were stupid, my idea would wind up in a class action suit against them–but only after a justification would be built for bringing a lawsuit. What current law can you point to that would give a plaintiff standing to sue Google?

        My idea has the advantage of A) not trying to organise a class action against the (first? second? third?) richest tech corporation in the world, and B) allowing the lawyers to pick and choose an exemplary case where a scammer is clearly breaking the law, just like they did fit the dancing baby case (which the EFF obviously took on because it was a virtually guaranteed win for precedence-setting, not because anyone really cared about the video itself)

    • Ninety-Three says:

      If they can establish the precedence, in court, that a scammer stealing ad revenue is breaking Copyright Law (which they are–earning revenue off of someone else’s work is the definition of infringement), all of a sudden Google stops being “DMCA Compliant” in the eyes of the law, and starts being “accessory to grand theft” (which they are, by blindly giving criminals the tools to fraudulently steal revenue)

      But they can’t establish that, because everyone on Youtube agreed to the terms and conditions. If you don’t like the rules, you can opt out of Youtube, but you can’t sue them over enforcing the lousy rules you agreed to.

      • Abnaxis says:

        If I invite you to my house, my buddy can’t get away with robbing you just because I own the place and I vouch for him, without me defending myself in court. Not even if I warn you off the possibility ahead of time.

        Regardless of whether YouTube forces uploaders to agree to a contract of adhesion when they join it doesn’t change the fact that scammers are violating the copyright when they siphon revenue off a work they have no rights to. Regardless of their contract with creators, Google is on the hook under the DMCA if they turn a blind eye to infringement

        • Ninety-Three says:

          it doesn’t change the fact that scammers are violating the copyright when they siphon revenue off a work they have no rights to

          That’s not how copyright works, not even a little bit. No part of copyright law says “If you collaborate with a content-host to run video pre-roll ads, you are entitled to a share of the money generated from those ads”.

          You are entitled to ad money because you made a binding agreement with Youtube that if you turned on ads, they would give you some of the money, copyright simply doesn’t enter into the picture. Youtube is not robbing anyone, the ad money is Youtube’s and they’re simply choosing to stop sharing it with the creator, after both parties agreed to the proposition “We will give you some of the ad money, unless there’s a ContentID hit”.

          • Abnaxis says:

            First of all, I think you misunderstand me–I’m not saying “sue YouTube.” I’m saying “sue Asshole Media, Inc. for receiving revenue for a work they have no rights to.” Copyright law says–explicitly–that anyone who monetizes an original work without the authors’ permission in is violation of the law.

            At that point YouTube has two choices–reform ContentID or lose their Safe Harbor protections they enjoy as a media host, because those protections are contingent on YouTube not enabling piracy.

            If YouTube is found to not have Safe Harbor protections, you can bet your biscuits they’ll be sued in a heartbeat. They will go the way of Napster

            Second of all, creators “agreed” to YouTube’s terms insofar as YouTube tells them “you have no choice but to agree to these terms if you want to access our audience.”. The creators have no leverage to contest or negotiate this contract–which is something courts tend to frown on, and hold less binding then contacts actually negotiated in good faith

            • Ninety-Three says:

              Copyright law says–explicitly–that anyone who monetizes an original with without the authors’ permission in is violation of the law.

              No it doesn’t. Read it. US Copyright law defends the author’s right to reproduce the work, make derivative works, distribute the work, perform the work, display the work, and perform recordings of the work, end of list. No mention is made of money or profit. If you’re not undermining one of those rights, you’re not infringing copyright (unless you’re doing some import-related stuff that’s not relevant to YouTube), and redirecting ad money clearly touches none of those rights.

              If you disagree, please quote me the section of copyright law that explicitly protects monetization.

              Second of all, creators “agreed” to YouTube’s terms insofar as YouTube tells them “you have no choice but to agree to these terms if you want to access our audience.”

              When you go to a sports game, the fine print on your ticket usually says something to the effect of “You are acknowledging the risk of getting hit by a ball that flies into the audience and forfeiting the right to sue us if that happens”. That specific thing has happened and been upheld (with hockey, and possibly other sports). The fact that you can’t get in any other way doesn’t invalidate agreeing to the conditions. If it did, the concept of an EULA would be worthless.

              • Abnaxis says:

                If you disagree, please quote me the section of copyright law that explicitly protects monetization.

                Intuitively, it strikes me as absurd to think that copyright law would not confer rights to advertising revenue to the creator. Otherwise, what exactly is the point of a DMCA claim to begin with–if a rights-holder has no rights to the revenue stream for the content they own, why do producers bother going after infringers?

                In fact, it’s right there in the “distribution” part. Creators have the exclusive right to sell, lend, lease, rent, or otherwise transfer ownership. In the next section, 106A, it also says creators have the exclusive right to prevent distortion, mutilation or destruction of their work without permission (like, say, by forcibly adding advertising).

                Now, Google might be able to defend whatever cut they are taking themselves with that contract uploaders have to sign to use the site (more on that below), but I dare say that Asshole Media, Inc. does not have authorization to sell advertising time/space (which is covered under “distribution”) nor to modify or even take down someone else’s work without permission.

                The fact that you can’t get in any other way doesn’t invalidate agreeing to the conditions. If it did, the concept of an EULA would be worthless.

                Actually, EULA’s don’t have a 100% track record when taken to court. I’m having trouble finding a good current reference, but I think this blog from 2007 hits the right notes well. To wit:

                First, some background. As a general rule, the California courts uphold contracts of adhesion – take-it-or-leave-it form contracts – all the time. Consumers, employees and others are considered bound by contractual language despite the fact that the courts, the lawyers and everybody else knows nobody reads this stuff. Graham v. Scissor Tail, Inc. (1981) 28 Cal.3d 807, 817-18.

                Nonetheless, our courts allow attacks on contracts for “unconscionability.” To overturn a contract on this ground, the contract must be both “procedurally” unconscionable and “substantively” unconscionable. Discover Bank v. Superior Court (2005) 36 Cal.3d. 148, , 160. A procedurally unconscionable contract is one involving “oppression” or “surprise” because of unequal bargaining power, while substantively unconscionable terms are those which are unfairly one-sided.

                Given this….maybe the EULA for YouTube is “substantively unconscionable,” or maybe it isn’t (it is most certainly “procedurally unconscionable”). Basically, it boils down whether someone can convince a judge that “you lose the right to your cut of the revenues for your work whenever we arbitrarily decide to take them” is unjust enough.

                To extend your hockey example a bit, there is a difference between “you might get hit by a puck, don’t sue us because we can’t guarantee it won’t happen” and “we reserve the right to deliberately fire a puck at you at high velocity whenever we feel like it, and you can’t sue us because you bought a ticket it.”

  6. Felblood says:

    Is there anything stopping me from creating a second account and immediately pressing a claim on my own content?

    What happens if a third faction presses a claim on the content while I am stalling the dispute for my own claim?

    Is there any law that would prevent me from stealing my own revenue like this?

  7. arron says:

    One of my friends (who works for a hedge fund) told me about AIs that were specifically designed to maximize profit whilst remaining within the legal regulatory/business rules for that business. And this is the sort of opportunistic revenue sucking scheme that would certainly work with a computer bot to flip some cash out of creators during the period that most of the views will occur from a new upload.

    • Isn’t the digital part of the stock market on a sort of slight time delay to prevent computerized real time trading?

      • 4th Dimension says:

        There is a delay between different stock markets, but this one is a physics enforced limit because signal can not travel any faster. In fact “recently” there was enough of interest that a new fiberoptic cable was laid to connect London and New York just to shave off couple of milliseconds from the usual delay. This allowed supercomputers on eather of two sides of the connection to make a killing automatically trading because they were able to know how the stocks will change (on the other stock exchange) couple of milliseconds before the rest of the stock market could.

        Okay I found the article:
        http://spectrum.ieee.org/computing/networks/the-microsecond-market
        The original run was between Chicago and New York while London-New York was in development in 2012

  8. Dreadjaws says:

    Youtube isn’t even going to pretend to try to do something to fix this until they start losing money or they get hit with a lawsuit. It’s really sad that this kind of thing has to happen for them to treat their users as human beings.

    Unrelated to this, I’m going through your old articles and I see you have one titled “Shadow of the Colossus: First Impressions” where you comment on starting the game and your intentions to continue, but there’s no follow-up. Did you ever finish the game? What did you think of it?

    • He’s probably still stuck in it’s shadow.

    • Joe Informatico says:

      I’m not sure YouTube has ever actually been profitable. Google’s willing to maintain it to keep their effective monopoly on uploaded streaming video services, probably until they figure out a way to actually make it profitable.

      And what entity with any legal heft is going to sue them? ContentID ostensibly fulfills the safe harbor provisions of the DMCA, and it mollified all the major media companies. So if Disney and Verizon and Time Warner, etc., are okay with YouTube now, who’s left who can afford to take Google to court? It’d have to be some big case that the EFF is willing to go the distance on.

  9. Ingvar says:

    One interesting(?) thing you may have missed, in re “public domain music”. If you are playing Mozart, the specific sequence of notes isn’t copyrighted, but the arrangement by the orchestra playing it is, unless its copyright has expired (I was almost bitten by this, once). So unless you do your own arrangement of Bach or Mozart, or find a CC-licensed performance, it could, in theory (unlikely, though) be used as a copyright hammer. :(

    • lemeza says:

      disclaimer: i am not a copyright lawyer, but i am a classically-trained musician.

      A Classical score has a load of layers, that as far as I know each have separate copyrights.
      There’s the actual ordering of notes that make up the piece. For Mozart, all of his pieces are Public Domain.

      Then, there’s the typeset, edited notation. This is separately copyrighted, but for pre-20th Century composers, there’s almost always an old edition that’s Public Domain. The copyright here is only for the actual graphics (and editing, but that’s probably beyond this scope)

      Then, you could have a transcription, where e.g. a piano piece is arranged for orchestra. I suspect the applicability of copyright to this is dependent on how original the transcription is. So if you arranged a Bach 4-voice fugue for 4 instruments by giving each instrument one of the voices, that is basically doing nothing new but a full orchestration probably is copyrighted

      (the Bach example is particularly ridiculous, because competent musicians would read straight off the piano score)

      Then, you have a recording of a performance. These are always copyright (except for very, very old recordings) so you have to be really careful to use one that is explicitly free to use.

      Shamus’ suggestion that leniency be applied for Classical recordings actually makes me quite uncomfortable. I would love free access to lots of music, and I doubt many Classical musicians get royalties but most of us are payed extremely poorly (especially given the level of skill required)

      • Nidokoenig says:

        The differences there make it unsuitable for automatic detection, though. If they match off-key singing to the original, they can’t tell your own rendition from another. You still have the ability to match them manually and make a complaint, though.

        • Joe Informatico says:

          Bots are pretty terrible at identifying orchestral compositions anyway. Shazam and SoundHound can’t really do it. I can’t see ContentID being much better at it, and there are thousands of videos of classical music performances and recordings sitting on YouTube not being monetized. So even if Google could improve ContentID to suss out classical music recordings, the cost of the R&D is probably prohibitive just to snag a musical category that makes up less than 2% of American music sales.

    • Peter H. Coffin says:

      There is also a profound difference between © copyright under which music is written and ℗ copyright under which each individual recording is (NB: separately) copyrighted. Axl Rose singing Gregorian chants (which are public domain as compositions) has its own ℗ copyright as a recording with its own timeframe for reversion to public domain.

      • Ingvar says:

        I did think the name looked familiar…

        I think I was primarily thinking of the ℗ copyright, but it is true that the actual textual (for whatever value of “text” notes are) representation also has a copyright of its own.

  10. Lanthanide says:

    Completely unrelated to this post, but you might want to check out the new System Shock remake gameplay trailer: http://www.polygon.com/2016/3/14/11224752/system-shock-remaster-video

  11. Mephane says:

    Here’s another idea: why not turn the “flagged” content into an ad for your original content instead?

    Basically, if the system detects, let’s say, a song from label in the video, then at the bottom of the description of the video it automatically adds a line “Music: ABC by XYZ” and a link to whatever the label wants to have there, be it their own channel, homepage, heck, even the iTunes page where you could immediately buy the song.

    (Lots of people do that manually already, and where it is not done, some of the comments are bound to ask “who is the music from” anyway.)

    There would still be the possibility for trolls to add their spam link in there, but not only could/would google crawl and these links anyway for obviously spammy stuff and dead links, and the creator of the video could now have the option to flag the link as fraudulent, much like the “report” function for that kind of stuff in basically any forum, twitter, etc.
    But most importantly is a bad link which you can then report and hope to get removed much, much better than either forced ads (if you were ad-free) or redirected ad revenue.

    • 4th Dimension says:

      You could do that, but nowhere in law does it say that you can use somebody else’s work and consider the infringed on side properly compensated by adding an advertisement for them on your infringing work.

  12. The instant transferance of ad reveneu is probably the most annoying thing youtube does.
    It shouldn’t be unresonable to hold payment untill any active dispute is resolved.

    • Nidokoenig says:

      As has been mentioned, they apparently can’t do that without getting a lawyer to make a judgment. Though I wonder why they can’t make it a condition that the money be returned if they don’t pursue the claim.

  13. Tombsite says:

    Normally I woould never recomend reading the escapist comments but in this case there is actually som really good stuff there from a guy who seems knowlegable about this stuff.

  14. Tektotherriggen says:

    I don’t think Patreon is a threat – as long as the videos are on YouTube, and a scammer turns adverts on for your video (as silver Harloe said), YouTube will make money.

    The trouble is that YouTube is, in my experience, a far better experience for consumers than other sites like Blip. No reliance on Flash, relatively lightweight advertising, etc. The real threat to YouTube will be if someone makes a hosting service that’s better for viewers (e.g. allowing you to permanently turn the f*%&ing annotations off) and content providers. Sure, network effects help keep it strong, but that’s probably what MySpace thought, too.

    • silver Harloe says:

      To be fair, Shamus was thinking of scammers as like a 1-5% case – if everyone went to Patreon, Youtube would be down 95-99% of their income… on paper.

      But since they are a music delivery service with barely any income from actual videos, they’d really be down 95-99% of some small slice of their income. Suddenly not caring as much :/

  15. EmmEnnEff says:

    Everything you’ve mentioned in your article is common sense, Shamus… But, as I understand it, common sense has nothing to do with how the law works.

    I’m not a lawyer, but to have a meaningful conversation as to what YouTube should, can, and cannot do probably requires being one – and an expert in copyright law to boot. Otherwise, its much like a non-technical manager suggesting changes to the code you write – their heart is in the right place, but they don’t have an accurate understanding of the technical issues at play.

    Disclaimer: I work for Google in a non-legal capacity.

  16. Robert says:

    Slight correction here:

    Nobody owns the copyright on Mozart, right?

    True, insofar as no one owns the copyright on the score. Performances are copyrighted, though, so you can’t take a Deutsche Grammophon recording of Mozart and use it without violating their copyright.

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