For anyone out there who wants to post their own videos, podcasts, fan films, film reviews, or streaming series, beware that that anything youput on YouTube, TikTok, or your own private site is in grave danger. Now is a good a time as any to become acquainted with the public domain. Thank the Digital Millennium Copyright Act, a 1998 piece of legislation passed by the U.S. Congress that stipulates that no one can “circumvent a technological measure” that prevents the dissemination of copyrighted material.
And here the details get controversial, the law outlining very broadrights of IP holdersto force any platform to delete said piece of content even if the material used does not violate the law. In part due to their rightful fears of pirating, huge corporations are approaching the struggle like they are squaring off against guerrilla fighters, laying waste to whole swaths of legitimate critique on social media sites. It is an inherently biased system favoring one side, giving them free rein to lay the digital smack down on any party hosting the offending material.
Of course, it is never that simple. Why is it the little guys, the small creators and reviewers, are getting hit by burdensome DMCA claims? Good question. Not even the snitch-bot algorithms the studios employ to scour the web know what they are doing, let alone the lawyers and YouTube moderators forced to parse out ill-defined legal jargon.
The Snake Eats Its Tail
It’s typical for online reviewers to slip in movie or song clips when reviewing, referencing, or parodying a piece of work, usually no more than a 30-second clip. You’ve seen it so many times, you’ve probably never even thought about the practice. Unfortunately, legit critiques are now in danger.
In a defensive move, those that use clips are increasingly forced to flip the image, or distort it in some manner to hide it from the programs YouTube uses to sniff out illicit uploads. In their defense, movie studios and entertainment conglomerates aren’t paranoid; piracy is proliferating. In the case of big-ticket films and miniseries, they can often pop up on torrent sites before their official theatrical debut, as occurred withChristopher Nolan’sTenet. The studios’ reaction is to try to blindly remove literally everything they can as a deterrent.
Sounds harsh, but that’s the tip of the iceberg of nonsensical copyright claims. In 2016, Warner Brothersfiled a claim against itself, thanks to Vobile, a third party that was tasked with taking down illegal uploads of WB movies includingThe Dark Knightseries. What it actually did was target WB’s own website and related IMDb pages. That’s a normal day in the life of a YouTuber, where frivolous claims threatening to kill your channel and destroy your livelihood are an accepted occupational hazard.
Related:Tenet and The New Mutants Bootlegs Are Already Being Pirated Online
Never Mind That Pesky First Amendment
The scowling red face is one of the most dreaded things anyone on YouTube will lay their eyes on. If you’ve seen it on your own channel, you already know what that entails. A content creator or reviewer can, theoretically at least, file a legal appeal to have their work reinstated if it is removed, but only through aprotracted and annoying process. One renown for being unreliable, a system that is easy to game for the sake of revenge or simple trolling.
YouTube’s system is notoriously heinous, vulnerable to anyone filing bogus DMCA claims. It has to abide by the law, that much is clear, but how it enforces that law is the problem. According to YouTube’s own official blog in 2021, it is not human beings that are initiating the bulk of the takedown-process, rather an AI that detects violators. The “Copyright Match” then complies with the settings in the copyright holder’s “Content ID,” which may demonetize the offending video. If this sounds like it is rife for abuse and complications, it is. YouTube admits that over half of these claims are ultimately rejected.
Fair Use (an exception in the DMCA carved out for documentary purposes, parody, or artistic critiques) applies only if the new content is deemedsufficiently distinct from the original, or “transformative,” so that the two would never be confused. The length and number of clips a YouTuber can use in their video essays or reviewsremains a mystery. “There is nothing protected by copyright law which is not also subject to Fair Use,” one lawyer noted, pointing out the arbitrary nature of the law. Good luck with that if you should feel like starting a YouTube channel focusing on movie criticism; maybe you can fundraise legal counsel with your Patreon account.
Related:Netflix Launches Copyright Infingement Lawsuit Against Unofficial Bridgerton Musical Creators
Beyond YouTube
Don’t care about the chilling effect on content creators? Well, the DMCA abuse phenomenon extends well into other forms of consumer rights and entertainment. The same stumbling block that applies to larger documentary filmmakers and those attempting to make biopics of celebrities or public figures applies to media owners, too.
The entertainment industry’s war on commentary has been going on for several decades. Until 2015, it was illegal to extract clips from DVDs or streamed video for documentary usage. As much as one fifth of documentary budgets might be set aside to pay for licensed-archival footage, such as in the case of the Showtime documentaryThe Reagans— the filmmakers so terrified of accidentally using a copyrighted clip or a lawsuit from a copyright-holder, that they opted for fair use insurance. This type of liability insurance is better known in the business as Errors & Omissions (E&O), a safeguard against nuisance court cases brought on by anyone who feels denigrated by their depiction in the film. The main difference being that most small commentators or satirists aren’t in the position to pay for insurance or archival footage, a pay-to-play situation.
The DMCA’s overstretch is not limited to licensing music or TV clips. Merely listening to your own DVD could be considered unacceptable. The ramifications of DMCA abuses affecthow consumers can use the machinesand media they bought and paid for. “It kills aftermarkets, interferes with legitimate research, and squelches creativity in new media,” civil liberties watchdogs stress. One user-created program was in the cross-hairs of movie studios for the unforgivable crime of allowing PlayStation users to run Linux on their private consoles, another individual in trouble for creating a program to allow Linux owners to play a DVD they legally possess.
As corporations see it, you don’t own your gaming console or DVD, nor do you own your phone, car, etc. for that matter. When it comes to public information, you better believe they think they have a monopoly on that, too.
