How Do the Wealth Gap and YouTube Policies Benefit Powerful Media Entities?

In the class action lawsuit filed by lead plaintiff and Grammy-winner Maria Schneider, the class accuses media superpower YouTube of copyright infringement, alleging that the mammoth Google company’s rights management platform known as “Content ID” is unfairly and illegally available only to the biggest of distributors and rights holders, and YouTube’s alternative system fails to meet the standards for the Digital Millennium Copyright Act’s (DMCA) safe harbor to apply. Content ID is YouTube’s takedown vehicle to address claims of copyright infringement made by rights holders pursuant to the DMCA. The Content ID system not only allows for YouTube to essentially automate the claim assertion and take-down process, but further affords rights holders the ability to monetize the infringing videos in lieu of removing them. But here’s the catch: To take advantage of such a seemingly advantageous system, YouTube must first grant the rights holder access to Content ID in the first place. YouTube has essentially taken the role of gatekeeper for its own Content ID platform by reserving it only for those they deem qualified. If not invited to the “Content ID cool kid’s party,” rights holders instead must follow the more difficult and manual non-Content ID system to make a DMCA claim.

Title II of the DMCA, the “Online Copyright Infringement Liability Limitation Act,” creates limitations on the liability, or “safe harbor,” under section 512 of the Copyright Act, of online service providers such as YouTube, for copyright infringement when engaging in certain types of activities. In addition to being required to designate an agent for service of copyright claims on its website and in an online filing with U.S. Copyright Office, and implementing a repeat infringer policy, the service provider has no liability for money damages owing to a third-party’s infringements if a specific required “take down” procedure of the DMCA is satisfied. Generally, the procedure is to expeditiously remove infringing matter or block access upon proper notice by the rights holder(s). The U.S. Copyright Office provides a thorough summary of the DMCA.

The Schneider lawsuit alleges that YouTube’s Content ID platform runs afoul of the DMCA requirements and is unfairly available only to the largest and most economically powerful entities in media, while those with less clout are relegated to the more onerous and less effective non-Content ID default that allows its rights to be infringed. The class alleges “YouTube has facilitated and induced [a] hotbed of copyright infringement through its development and implementation of a copyright enforcement system that protects only the most powerful copyright owners such as major studios and record labels.” The class goes on to claim that they “are denied any meaningful opportunity to prevent YouTube’s public display of works that infringe their copyrights—no matter how many times their works have previously been pirated on the platform. They are thus left behind by YouTube’s copyright enforcement system […]” The class further argues that Content ID should be available to all rights holders, because the current alternative system is not only insufficient but also fails to meet the requirements for YouTube to claim safe harbor as a service provider under the DMCA. The class therefore alleges that YouTube is not entitled to such safe harbor and is liable for copyright infringement.  

The DMCA, though, does not require YouTube or any other service provider to offer as sophisticated a mechanism as Content ID to comply with the act’s claim and take-down rules. YouTube provides the platform to assist and arguably mutually benefit rights holders that can be trusted to elicit the DMCA take-down procedures responsibly and legitimately. The real question is whether the alternative to the Content ID system is enough to satisfy the requirements of the DMCA summarized above. The class argues that it is not, alleging that YouTube’s “current approach to copyright infringement, including the operation of the Content ID system, fails to satisfy the requirements mandated in order to be protected under the DMCA safe harbour.”

Clarification of the DMCA’s requirements for safe harbor must be made in light of the modern technological world. The seeming expansion of blanket protection for an array of “service providers” of all stripes has been the topic of numerous debates and lawsuits. Is DMCA safe harbor a protection for innocent service providers merely hosting content of third-party creators, or is it a means by which media superpowers can exploit the copyright system? Whether the alternative system runs afoul of the safe requirements remains to be seen, but the repercussions from the Schneider lawsuit have the potential to be immense. Any attorneys representing clients within the creative fields should pay close attention to how YouTube handles this action, and to the ever-changing landscape of rights enforcement and protection in the modern digital world.

Trevor W. Barrett is a senior associate with Doniger / Burroughs in Venice, California.

_{Copyright © 2020, American Bar Association. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or downloaded or stored in an electronic database or retrieval system without the express written consent of the American Bar Association. The views expressed in this article are those of the author(s) and do not necessarily reflect the positions or policies of the American Bar Association, the Section of Litigation, this committee, or the employer(s) of the author(s).}