Fear of a YouTube Planet

Today it occurred to me that I’m probably gonna lose my YouTube account very soon. Like a lot of folks on YouTube, I upload silly videos I’ve made, clips I’ve ripped from DVDs to talk about films I like, random trailers, clips of video games, my kids dancing, etc. I started using it because the embed feature made the hassle of uploading and embedding your videos on your own server seemingly redundant—-it’s all done through YouTube. Which is great until, well, it’s not.

I’ve been on YouTube since 2006. I’ve uploaded more that 240 videos; I’ve also had almost 2 million views on those videos. What’s more, I’ve probably had around 50 copyright complaints, and they have been coming fast and furious as of late. There must be some crackdown in the office of YouTube, I imagine it like Joe Spinelli telling Stallone off in Night Hawks.

Wouldn’t you love if that’s how executives at YouTube talked about shutting down our ability to share and interact with our own culture? I feel like a criminal for quoting works I love. I feel like a criminal for wanting to further imagine through the offspring of our moment. Worst of all, I have to feel like a criminal when I am having fun. It’s becoming a much more serious crime, and I’m scared about that prospect. Not so much that they’ll sue me, but more that they have already occupied my mind trying to convince me that sharing online is evil. To convince me that a video sharing site owned by an advertising company that promises to “do no evil” has become the de facto mediary between millions of people and what seems a basic human right to re-use, remix, and re-imagine the media we inhabit. The implications of what the culture we have watched, supported, and even become fanatic about is making upon us is become increasingly difficult for us to understand more richly under such a model. Since the addition of YouTube six years ago Google has become a copyright constable for the entertainment industry—and a bad one at that. As much as I’ve enjoyed YouTube for years, it’s hard to give them a pass on the way they are policing everyone and I think it is high time for me to starting deriving a backup plan. I think I’ll eventually let them delete my account, but in the meantime I’ll be making a number of videos private until I have everything backed up (anyone have YouTube exit strategy tips?).

Ultimately, the straw that broke the camel’s back on this one came today when I went on a mad strike and disputed almost every claim I had claiming educational fair use. Seems a large number of my older video uploads to YouTube had been claimed recently, which could mean anything from a commercial, an ad, or even no access. Many have already come back saying tough shit, we don’t buy it.

The next step would be to challenge them, but at that rate I need a lawyer, some cash, and would need to pull the whole Larry Flynt thing with flags, snipers, and middle America—which I’m not really into. I just wanna share video with people when I have something to say about movies on my blog. It’s crucial to the academic work we do, it’s crucial to the virtues of discussion, and it’s crucial to the simple fact of being a citizen. Quite frankly, we need a better way than YouTube. We need a venue that hasn’t gotten in bed with the entertainment industry. We need a place that, like my blog, I don’t have to worry about someone else deleting from me without due process and a real engagement around what copyright, fair use, and the ability to use our culture to explain and interrogate it is. If I wasn’t getting threatened by YouTUbe I probably wouldn’t be leaving right now, but I am so I am. They suck. And what’s important I guess from me in all of this, is that it is useful to keep that in mind and I am kicking myself for the 242 times I chose convenience over freedom 🙂

Below is the email I got yesterday telling me that my video was deleted, and if I wanted to get it reinstated I would have to do more than a dispute, I would have to do a DMCA Counter Notice, which would mean I’m legally bound once I challenge this and I would need a lawyer, etc. Here is their wording:


Please understand that filing a counter-notification may lead to legal proceedings between you and the complaining party to determine ownership. Be aware that there may be adverse legal consequences in your country if you make a false or bad faith allegation by using this process.

One step up from a dispute, and the second one I have gotten. This, by the way, is part of the opening credits for The Wild Bunch which is magical (I own it on VHS, Laser Disc, and DVD) and no video on YouTube could do it any justice, but I was using it in as part of a blog post to make a point about Sam Peckinpah’s film, it is a visual aid, a quote, a piece of the visual argument I need to make my point. But I can’t quote it, it has become property of some media conglomerate that would have me pay them every time I want to share how I understand a piece of the culture I was thrown into—I believe this is a concept we will look back on in time and understand it as an awful and repressive act against any sense of democracy and freedom of expression. It’s a crime against thought. I need my very own space to do my “crimes,” and this Summer I’ll be experimenting with some options. Will I be part of the Vimeo diaspora? Or can we set up some other solution on our own, we’ll see very soon 🙂

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20 Responses to Fear of a YouTube Planet

  1. Vimeo is marginally better for the moment. And they make their money off of paid accounts, which provides a somewhat different incentive (although with those hits you’re getting, technically Google has a sizable incentive to keep you as well, FWIW).

    I wonder if Creative Commons could come up with a Fuck You, I’m An Educator badge.

    I also wonder if we make these things not findable on YouTube via settings, what can they do? You now have the option via Google Drive to share this in very specific ways, and I am interested in whether those ways have a different legal status.

    The final thing — you might want to ditch YouTube for video, but know that staying on YouTube and contesting claims on YouTube is also a valuable political act. The truth is that even as an advertising company Google’s interests align with yours in this particular instance (in other instances I admit it is different). If enough take-down claims were contested, that would give them ammunition to say look –the current system is not working. Ultimately your problem is current U.S. law, and in this particular instance Google is probably a friend. Not a rock-solid one, but the only one that has a chance of dismantling the law.

  2. Jim, I am similarly horrified, as I was when I got a notice about taking down a video christmas card of my kids dancing to “Just Dance 2.” David Darts’s talk meant so much to me — been doing a lot of thinking about the necessary technologies for democratizing the means of content sharing. The notion of a central server of information will always make the institution that owns the server trump the needs of the content owners using it. The solution of a viable pier-to-pier architecture, or perhaps community-embedded nodes within that system, seems to be the only answer, and it seems like every other solution just dances around this central point. Clearly, academic content has outstripped the usefulness of the web as we know it.

  3. Mike C. says:

    I guess I just don’t see where history shows that things get better when we go to non-corporate servers for content distribution. While Napster was up, users were fairly safe trading files. When Napster was unable to enforce take-downs, it went bankrupt, individuals became exposed, and while trading continues you now need to put your personal assets at risk to do it. Is that better?

    Smaller companies that have not enforced takedowns are gone (Ninja Video anyone?). The short history we have seems to demonstrate the situation gets significantly worse for sharers when they share outside a corporation with a legal department. If you have a hosted server, someone is hosting it, and its not worth it to them to defend you. If you host it in your basement, you need a pipe, and now you are relying on your cable company. Host it at your college and your college is exposed.

    Maybe you sneak under the radar. Maybe you don’t and get hit. When we move to the private server model it is a thousand hidden legal battles rather than one consolidated one. It becomes the torrenting world of today, a Wild West that excites but can only do so in the shadows.

    The problem is the law, not Google. Google loves that people are watching Jim’s clips, Google is sad to see Jim’s takedown notice. Google is that way not based on some whim of altruism, but because it is in its financial interest to have Jim’s stuff up.

    Getting mad at Google because they comply with takedown notices is like getting mad at Walgreen’s for not selling you medicinal marijuana. Here’s an alternative idea — why not use the affordances of Google Drive to share stuff that does not live on a central YouTube site? Why not let Google push the legal issue that this sort of unindexed use is different, as it is more narrowly contextualized?

    I honestly believe more change will occur this way than building small legally exposed servers backed with zero lawyers. We need to stop fighting for drug decriminalization by boycotting Walgreen’s.

  4. martha says:

    The deep, deep irony of all this, of course, is that by entering into a virtuous cycle of sharing clips from movies you love with millions of YouTube viewers, you are actually doing those studios a favor. You are promoting their product, and, presumably, some viewers might go out and actually pay to see the whole movie that you are referencing. There is no harm being done to them in these cases. Absolutely none. And, if they would get their heads out of their asses, they would realize that there might actually be a frickin *commercial* benefit to letting people share and remix this stuff.

    This kind of shit makes me so crazy.

  5. Tim Owens says:

    I’m not so ready to give Google a free pass on this. Are they following the letter of the law? Sort of. But they’ve gone further and allowed the companies making the DMCA claims to also be the reviewers, which is madness. We have a cottage industry of companies cropping up solely to lay claim to films they don’t actually hold copyright to, to take them down? Nope, to put ads on them and monetize IP they don’t actually own. I’ve put up videos I got from Archive.org that were in the public domain and then gotten notices that a company put ads on it. When you dispute these claims Google sends it on to that company and says “Are they telling the truth?” Why the hell should the company making these claims hold all the cards? It’s insane. Andy Baio breaks some of this down in a great post but I truly believe we’re going to see things change because the fact of the matter is a generation is coming of age (voting age) that doesn’t feel that this is right. It doesn’t make sense to them. Even current politicians have been found to reuse material without sourcing it because it’s a natural instinct. It doesn’t bode well for copyright holders that want tight control of their content but the writing is on the wall.

  6. Mike C. says:

    Thanks Boone! Of course, I’m conflicted about this position. But it’s where I’ve landed at the moment. 😉

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  8. Luke says:

    @Martha: there is at least one corporate entity who has realized this: the NBA. As many problems as I have with David Stern, he’s been adamant that no NBA clips be taken off of YouTube for the exact reasons you outline. This is in direct contrast with MLB, which issues takedown notices for anything snipped from licensed broadcasts… morons.

  9. Mike C. says:

    Tim —

    These are good points, and I think your experience with the Archive.org videos shows the reasons why I am uneasy about Google. And the review process is broken. But I can’t see what benefit Google gets from the take-down process they have designed other than a level of certainty that YouTube will continue to exist. If the law allowed them to get the same certainty while taking a wider interpretation, I think they would take it. I may be missing some important piece here, so let me know.

    I think the second piece people are missing is that there is, in some sense, a valid claim under current copyright law against clips on a YouTube server. I want to be very clear here — copyright law is insane, and should be limited I think to 14 years.

    But let’s take our crazy copyright law as it stands and look at YouTube. Say I want to make money on Cool Hand Luke as a studio that holds my crazy 100-year copyright. Well, in the current climate, one way I might do that put clips up from Cool Hand Luke up and pin some ads for razors or pipe-cutters on them. It’s disgusting, true, but I’m from Hollywood so it makes a certain mount of sense to me.

    These studio-supplied clips are coming soon. I’m sure of it. This is the end game.

    Now Jim puts his clip up. People can now watch Jim’s without the ridiculous pipe-cutter ad, so people link to Jim’s. I lose money on ads.

    But wait a second, you say, Jim put his clip up to include in a post. The use meets at least two of the four factors in the fair use test, which should be enough — the way Jim used it was educational/editorial (purpose) and the amount was appropriate to what he needed to do (amount). Nature is not as strong (since it’s a creative work) , but we’ll call it a wash.

    This is balanced against the potential effect on ad revenue. And in the context of Jim’s blog, the effect is nil. People didn’t come to Jim’s blog to find a free Cool Hand Luke clip. There are no customers that the studio loses because of Jim.

    Now here’s the horrible thing about the way YouTube works — all those factors that make Jim’s use OK? They don’t exist on the YouTube site. On the site the purpose is gone, the amount has no context. And worst of all, the effect is arguably financially significant. What number of people seeing those clips saw them on the blog versus went to YouTube specifically to relive some Cool Hand Luke moments?

    Again, I’m not arguing our copyright law is sane, or the companies involved are anything less than bottom-feeding philistines. But the underlying problem of YouTube (and the reason Google must cut a wide berth I believe) is that the fair use of the videos must be argued outside the context of their embedded publication. Fair Use is about context, and publication on the central YouTube site is decontextualized.

    This is why I am interested in looking at things like Google Drive, and seeing if we can take back the conversation here. I publish something via my personal storage for inclusion in a piece that has clear fair use. Maybe someone else uses it in their blog post off of my copy. But it’s contextualized. If someone comes to Google and says you have have to delete something off someone’s personal share drive because someone on tumblr used it in a way that’s inappropriate — that seems to me a conversation we might win.

    Maybe I’m nuts. But I think the next battles are here.

  10. Tim Owens says:

    Mike,

    I think it’s definitely an interesting approach to have videos placed in a way that allow that context to happen. YouTube could just as easily offer this by having the reverse of “embedding disabled” available. When I upload I can mark my video as “You need a URL to see this” and then I embed on my blog. The video only exists in that context and should be clear by all accounts of law (similar approach to what you’re getting at with Google Drive). The real problem is YouTube used to proactively monitor this stuff, but that wasn’t enough for companies because too much slipped through (which I think is exactly what you’re talking about, Google would love for that stuff to slip through. It’s ad revenue). So they instituted ContentID matches, a completely automated system that doesn’t allow for the nuance of situations like this. But I don’t see that as a problem with the law, we have Fair Use and ContentID doesn’t understand that. Google could understand that, but they’d rather not even be involved in the discussion and turn it over to the companies that have a vested interest in not giving a damn about our rights. The current situation where the copyright holders have complete control over the removal of content on Youtube is exactly what people hated about the idea of SOPA, yet it’s here right now despite the illegality of it.

  11. Mike C. says:

    Tim —

    I really like this:

    “YouTube could just as easily offer this by having the reverse of “embedding disabled” available. When I upload I can mark my video as “You need a URL to see this” and then I embed on my blog. The video only exists in that context and should be clear by all accounts of law ”

    This is an area, of course where YouTube’s interest and our interests collide — because Google would like to build up site presence. But you’re right, the solution would be simple.

  12. Brian says:

    If we persist in thinking of “culture” as something we all share, something essentially human, we are going to keep having these sorts of shocks. Stupid us.

  13. Cheryl Colan says:

    I love the philosophical part of this conversation but I don’t have much to contribute at the moment.

    On the what to do next in the immediate, I have this:

    One solution would be to host your videos back on archive.org if their servers can serve it back up reliably – this is something I haven’t tried since 2006 so I don’t know.

    And you could look into my favorite alternative to YouTube: Blip.tv.

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