In a Blow to User Rights, YouTube Takes Down Entertainment Channel

In a troubling development, YouTube has taken down SRbrosEntertainment, a channel with over 1,00,000 subscribers, on a mere allegation of copyright infringement.

The channel, launched in 2012 by two YouTubers named Shukran and Roshan, has amassed considerable popularity in the last four years and boasts of a fan base of over 90,000 subscribers.

This development would not be so worrying if it were an aberration. Indeed, as this article notes, channels such as Eli the Computer Guy, Alternate History Hub and Channel Awesome have had to grapple with the problem of their videos being taken down or unreasonable restrictions being imposed on their right to create and disseminate content freely – all in 2016 alone! This being the case, YouTube’s present action is reflective of a systemic problem that needs to be addressed urgently.

Before delving into the larger issues that this development raises, it would be instructive to briefly examine the procedure followed by YouTube when confronted with takedown requests. As regular readers of this blog will doubtless recall, Prashant haddiscussed this procedure a few months ago.

To briefly recapitulate, when YouTube receives a DMCA takedown notice, it removes the content in question and the person uploading the content receives a strike. At this point, the user can challenge YouTube’s decision to remove the content in the shape of a counter-notification after which the sender of the DMCA notice can either allow the video to be restored, by not taking any action for 10 business days, or sue the uploader of the content. If a user is at the receiving end of three such strikes, their account gets terminated.

While in theory this may seem like a fairly robust system to deal with claims of copyright infringement, the manner in which it works in practice leaves a lot to be desired. More specifically, after a takedown notice is sent to YouTube, the validity of the claim is determined by an automated process, in contradistinction to an actual person. This being the case, there is a high likelihood of a video or an entire channel being taken down, bringing to naught all the hard work put in by the creator of the content in question, sans an objective and detailed inquiry.

To understand how this process can operate to the detriment of those who own channels like SRbrosEntertainment, it would be instructive to examine how the channel came to be taken down.

A channel called ZM Productions issued takedown notices that resulted in two strikes being issued against SRbrosEntertainment for hosting an iPhone giveaway video. Even though Shukran and Roshan contended that the video did not contain any infringing material, ZM Productions asked them to pay $1000 or risk receiving a third strike which would result in the channel being terminated. Since they refused to comply with this request, their channel was terminated. Their own description of their ordeal can be found here.

There are at least three significant issues that this incident brings to light which merit closer scrutiny.

First, on account of the ad hoc and unprincipled way in which YouTube’s takedown system works, there is a high likelihood of a channel’s competitors misusing the system to maliciously bring the future of a channel run by a competitor into jeopardy. As this article notes, an offending video can sit on the network for a substantial time period without anyone raising any objections, only to be taken down when the channel gains considerable popularity. Since empirical evidence indicates that the takedown system is heavily skewed in favour of those making the takedown request, YouTube needs to seriously consider the need to take concrete steps to transform this procedure from an instrument for settling scores to a tool for safeguarding IP rights in cyberspace.

Second, it is difficult for a content uploader in most circumstances to predict with reasonable accuracy whether or not their video contains any infringing material and is likely to be taken down. To be sure, a proper DMCA notice must necessarily delineate, with sufficient precision, the content that is regarded as being infringing along with an undertaking by the sender that it has a bona fide belief that the material is of an infringing character. Notwithstanding these requirements, as the Electronic Frontier Foundation notes, far too often content is removed on the basis of an improper takedown notice or automated requests based on such arbitrary criteria as a string of keywords. The upshot of this is that users are likely to refrain from investing the energy and effort required in creating and uploading meaningful content, owing to the fear that their content can be taken down at any time. This would be a classic case of what free speech scholars describe as the chilling effect.

Third, while the content uploaded by a user, containing portions of a copyrighted work, very often falls within the ambit of the capaciously worded fair use exception in Section 107 of the U.S. Copyright Act or provisions in pari materia in copyright statutes of other jurisdictions, the manner in which YouTube’s takedown procedure works has the practical effect of reducing this powerful user right to a dead letter. This is best evidenced by YouTube’s decision to take down content that the Universal Music Group regarded as being of an infringing character even though the content squarely fell within the ambit of the fair use exception. Ergo, it is critical for YouTube to recognize the proposition that an automated process, which was designed with the laudable objective of ensuring effective enforcement of the rights of copyright owners in cyberspace, is far too often being used as an instrument for suppressing constitutionally and legally protected free speech.

In light of growing criticism about the flaws inherent in the extant procedure, YouTube agreed earlier this year to set up a committee to determine concrete ways of minimizing mistakes and identifying robust ways of making the takedown procedure function in a smoother fashion. While there can be no gainsaying the fact that the exponential rise in YouTube’s popularity has made it virtually impossible for every copyright infringement claim to be scrutinized by a human being, it is hoped that YouTube will be able to find practical ways of removing the biases inherent in the existing procedure and ensuring that its automated processes promote, as opposed to undermining, user rights in cyberspace.

PS: I am able to still view the SRbrosEntertainment channel here, so it appears that YouTube decided to suspend the channel’s termination.

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