By Dan Goodman
As the late Notorious B.I.G. said, “Mo Money, Mo Problems.” Whether you believe that statement or not, it is certainly, and thankfully, becoming less true the world of monetizing videos on YouTube through fair use.
The issue of fair use in regard to Content ID claims and Digital Millennial Copyright Act (“DMCA”) takedown notices continues to be a hot topic in the world of YouTube. Most recently demonstrated in Lenz v. Universal Music Corp., the Ninth Circuit held that copyright holders must consider fair use and have a subjective belief that the material in use was in violation of copyright law before sending a takedown notice.
But the main complaint of content creators on YouTube, aside from the pure issue of fair use, boils down to one thing: money. Surprised? Nor should you be. YouTube advertisement revenue from video views, for at least the creator of those videos, can be a legitimate source of income. If, by chance, you become a YouTube star, your potential earnings could be in the millions. The issue that a content creator faces when they opt-in to monetize a video is the lost revenue during a Content ID claim dispute.
YouTube’s Content ID system gives copyright holders the ability to manage their content on YouTube. It starts with a copyright holder providing YouTube with a copy of his or her audio and video recordings, which is then stored in a database as reference files. Whenever a YouTube content creator uploads an audio or video recording to YouTube, that recording is compared to the reference files. If a match is detected, meaning the YouTube content creator’s video contains a copyright holder’s protected material, the copyright owner is notified and is given the choice of blocking the video, allowing it to stay up, or monetizing the video. If the copyright holder chooses to block or monetize the video, the YouTube content creator has the option of either disputing the claim or accepting the copyright holder’s actions. The problem is (or was) that while a claim is in dispute, advertisement revenues are lost.
On September 1, 2016, YouTube rolled out a policy change in which YouTube will hold advertisement revenues during a Content ID dispute, revenue that would have previously been lost. Specifically, if a YouTube content creator disputes the copyright holder’s Content ID claim within the first five days of receiving it, YouTube will start holding advertisement revenues the day the claim was placed. If the Content ID claim is disputed after five days after a claim is made, YouTube will begin holding advertisement revenues starting the day the Content ID claim is disputed. Once the dispute is settled, YouTube then disburses the funds to the winning party.
The change has been called “a step in the right direction,” as Content ID trolls have long plagued content creators. The Content ID policy change is a new addition to YouTube’s previous fair use protection expansion, where Google – YouTube’s owner –declared it would cover the legal fees, up to $1 million, of content creators who have been slapped with a DMCA takedown notice, as long as Google believes the video clearly represents fair use.
Although YouTube is taking positive steps toward the promotion of fair use, there is only so much that it can do alone. Should the petition for certiorari be granted for Lenz v. Universal Music Corp., content creators could soon be seeing the light at the end of the tunnel that will provide them with fair use protections they’ve long been waiting for. Despite headaches in the meantime, when all is said and won, at least their wallets will be a little heavier.