“Adpocalypse”

By: Carl Rustad

Youtube Hate Preachers Share Screen With Household Names.” “Google’s Youtube has Continued Showing Brands’ Ads With Racist and Other Objectionable Videos.” These are the headlines Google faced in March 2017, as ads for Google’s advertising partners allegedly appeared alongside hateful or inappropriate Youtube videos. Within days, high-profile advertisers including Wal-mart, Pepsico, General Motors, AT&T, Dish, and Starbucks all pulled their ads from the platform

Google responded to these allegations by “implementing broader demonetization policies around videos that are perceived to be hateful or inflammatory” and “strengthen[ing] advertiser controls for video and display ads.” Using algorithms, Youtube “automatically weed[s] out inappropriate content,” sorting each uploaded video into categories purportedly reflecting their desirability to advertisers. Advertisers can exclude videos from categories like “tragedy and conflict,” “sensitive social issues,” “sexually suggestive content,” “sensational and shocking,” and “profanity and rough language.” Clearly these options reach far more content than the originally-complained-of hate speech. Videos determined inappropriate for advertisers are “demonetized,” meaning ads will not appear on them, they are deprioritized in search, and content creators will not receive any ad revenue from the video. The resulting drop in ad revenue is referred to as “Adpocalypse.”

As a result of these efforts, Youtube claimed “many advertisers have resumed their media campaigns on Youtube,” but also acknowledged that content creators faced “revenue fluctuations” due to demonetization and promised to provide “more detail around advertiser-friendly guidelines.”  Meanwhile, some content creators on the platform claimed to see an initial 80 percent drop in ad revenue due to demonetization, leveling off to a “40, 50, 60 percent drop” as videos were deemed not suitable for all advertisers. Prominent vlogger Vlogbrothers opined “[demonetization] has really squeezed creators who are making content that’s maybe good, but not, like, super-happy-family-fun-time stuff.”

Private Platforms Provide Strong Extralegal IP Protections

Adpocalypse demonstrates both the interest and the power that companies have in protecting their brands on private platforms. Brands are already entitled to certain legal protections. A trademark holder is protected against damaging associations in several scenarios, including when unauthorized use of their trademark causes confusion as to the source or sponsorship of a product, or tarnishes the brand by association with “unsavory” ideas. See AMF, Inc. v. Sleekcraft Boats; Louis Vuitton Malletier S.A. v. Haute Diggity Dog, LLC. On the other hand, there is no trademark infringement when the trademark is being used to describe a product or talk about a competitor’s product. See KP Permanent Make-Up Inc. v. Lasting Impression I, Inc. These are considered “fair uses” of a trademark.

But the companies on Youtube, of course, do not have to point to their carefully balanced intellectual property rights in order to control their representation on the platform. They can simply refuse to advertise on a platform if it tends to associate their brand with any less-than-ideal content. This is not a new phenomenon. Media has long catered to advertisers, with media scholar C. Edwin Baker claiming “the greatest threat of censorship in this country comes not from the government, but from advertisers . . . .” As online platforms mediate a steadily increasing amount of our time, advertiser censorship may become correspondingly more pervasive and omnipresent. With algorithmic and computing advances, such censorship can be systematically extended to hosted individual speech as seen in Adpocalypse.  

Real Time Content Moderation: The Future of Advertising? 

Adpocalypse concerned advertisers’ association with undesirable uploaded videos, which are scanned for content and demonetized and search deprioritized if they are deemed unsuitable for advertisers. This hawkish breed of moderation is enabled by advances in automated decision making. Over 500 hours of content are uploaded to Youtube every minute; each video must be scanned and categorized as safe or unsafe for advertisers. 

Platforms are now facing pressure to provide real time moderation to prevent violations of their terms of service by censoring disinformation, incitations of violence, and other abuses. Facebook Horizons already includes real time moderation features  allowing it to instantly deplatform or censor abusive–as determined by Facebook alone–virtual reality users. The advantages of such a system are obvious. Hate speech, harassment, and other universally-condemned behavior can be taken offline before it happens. Unfortunately, the concerns real time moderation raises are just as obvious. 

Platforms will continue to compete for ad revenue. As Adpocalypse demonstrates, online platforms are not simply censoring hate speech; they are beginning to censor anything not “advertiser-friendly”. Allowing fine control over the spaces in which advertisers’ products appear, not just how their ads appear, is a profitable course of action. One easily foreseeable use of real time moderation is to limit the visibility of advertiser-unfriendly speech in VR chat. But there is no reason to believe the technology will be confined to such transparent and simplistic uses. Facebook already sells sophisticated and hyper-targeted ads. Plus, US advertisers are willing to pay about $250 billion a year to control what consumers associate with their products. The market is there.

Given the impending capability and incentives for online platforms to moderate speech and the environment of speech in real time, it is time to take a hard look at the role of advertisers in platform censorship. While the First Amendment does not apply to private platforms, consumers should demand transparency from platforms about how speech is moderated and hold them accountable when moderation technology is abused to accommodate advertisers. 

The Key to the YouTube Advertisement Crisis: an Improved AI

maxresdefaultBy Derk Westermeyer

A little over 4 years ago, comedian Ethan Klein uploaded his first video on his YouTube Channel, h3h3productions. That video’s premise was about how people use toilet paper. While this type of comedy may not be for everyone, Ethan’s channel has largely been a success. Since that first video, Ethan has uploaded hundreds more videos to his channel, a large portion of which generate millions of views each. Continue reading

YouTube’s Content ID Policy Change Now Saves Lost Monetization for Fair Use Videos

youtube-cashBy 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.

Continue reading

Fair Use: YouTubers Claim Copyright Infringement Lawsuit Against Them is a Goof

KleinsBy Jeff Bess

YouTube has come a long way in the decade since its founding as the Internet’s hub for one-off viral clips and cat videos. As of last month, YouTube reported that it reaches more viewers in the coveted 18-49 age group during primetime than the top ten TV shows combined. This is due in large part to the vibrant community of original content creators – some of whom individually drive enough traffic to make themselves millionaires – that host and share their videos on YouTube’s platform.

YouTube’s explosive growth as commercial and expressive medium has naturally brought with it a greater likelihood of legal disputes, particularly with respect to copyrights. Take for instance popular YouTubers Ethan and Hila Klein, the couple behind the comedy channel H3H3 Productions. They have built a following of nearly two million subscribers by making videos commenting on and making fun of other YouTubers’ videos. Continue reading

Let’s Play Trademarks: The Peculiar Sensation of Sony and the Fine Brothers

gamerBy Gwen Wei

As it turns out, it’s a terrible idea to try to lock down the Internet’s favorite toys via trademark. Who knew?

Certainly the news seems to have come as a shock to a few businesses in the new year. On October 28, 2015, Sony Computer Entertainment America applied to trademark the phrase ‘Let’s Play’. According to its application, Sony intended the trademark for goods regarding “electronic transmission and streaming of video games via global and local computer networks; streaming of audio, visual, and audiovisual material via global and local computer networks”. Continue reading