By Justin Sanders

Meet Mitchell Block. He is the owner of Direct Cinema Limited, a production and distribution company specializing in under-the-radar documentaries, shorts, and other independent films that are only available through the company’s catalog. Block is a curator of the obscure and the avant-garde. His titles play frequently in colleges and libraries and other institutions willing to pay to screen challenging works in the service of expanding thought and culture.

They also play on YouTube – against Block’s wishes. He has specifically chosen not to put his films on the platform because offering them for free would undercut his business model of licensing to institutions. It’s a decision that most people who make a living from selling things understand; they don’t simultaneously offer their products for free at the store next door to the one in which they’re charging money. 

While it is true that YouTube videos earn their hosts money through advertising, the paltry ad dollars that Mitchell would earn on titles with a limited audience would never make up for what he loses from licensing deals – deals that are still very much an active part of the current film economy. What Block wants for his intellectual property does not seem possible on YouTube, where there are currently hundreds of films from Direct Cinema’s past and current catalog available on their platform for free. Every single one of those uploads, from the popular PBS series Carrier to Disney’s Oscar®-winning animation short Tin Toy, is being streamed illegally, and there is very little Block can do about it.

That’s not to say there isn’t anything that can be done about this kind of digital piracy. In fact, YouTube has a fairly effective way of dealing with it: a tool called Content ID that can automatically identify unauthorized uploads of registered, copyrighted works by matching to the owner-supplied version or digital fingerprint. Sniffing out everything from full television episodes to pop songs playing illegally in the background of cat videos, Content ID then alerts the owner and gives them the option to either block the upload, or leave it up and collect ad revenue from it (shared with YouTube, of course). For larger companies with thousands of hours of copyrighted content, the tool is able to match the digital fingerprint of that content and automatically and repeatedly block unauthorized uploads.

The main problem with Content ID is that it’s only available to those larger companies – or, as YouTube frames it, those companies who “own exclusive rights to a substantial body of original material that is frequently uploaded by the YouTube user community” (emphasis added). What qualifies as a “substantial body” or a “frequent” number of uploads we cannot know – because YouTube, and its parent company Google, isn’t telling. What we do know is that there are around 8,000 rightsholders who have been granted access to Content ID.

Everyone else – including Mitchell Block, whose library has hundreds of titles in it – has to track down each individual case of infringement in their own free time, then fill out a cumbersome “notice and takedown” form to have it removed. They must do this for every single illegal upload, no matter how many times the same piece of content gets uploaded. It can be a massively time-consuming process for filmmakers, musicians, and all the other creatives of the world who didn’t get into their chosen careers thinking they would be spending untold amounts of time policing their own works from digital theft. Often, Block’s first response from YouTube is that they are unable to prove that he is the copyright holder, leading him further down the path to insanity.

So, who actually has the ability to use Content ID? – major studios, distributors, content aggregators, and record companies. These are large-scale entities who have built the infrastructure to deal with mass infringement, including entire departments devoted to managing, monitoring, and safeguarding their digital content online. 

But, many in the creative communities are not “substantial” copyright holders. They are musicians struggling to get to the next show in between catering gigs, or filmmakers frantically editing their latest project to make a festival deadline, or maybe small companies like Direct Cinema (84% of companies in the motion picture industry employ fewer than 10 people). Independent creatives and small creative companies don’t have the bandwidth to send hundreds of takedown notices on a daily basis – they are creating their next piece of content and trying to stay afloat.

But even if they had 24 hours a day, every day, to devote to this soul-sucking endeavor, it wouldn’t matter – more than 500 hours of fresh content are uploaded to YouTube every minute. It’s actually physically impossible for anyone without a sophisticated content management team at their disposal to protect their copyrighted works on YouTube without an automated tool. YouTube surely knows this, but its Content ID policy communicates a clear message that it couldn’t care less. It basically says to the poorest copyright holders, “Not only can you not afford a single employee to police the internet, but you also don’t get to use our extremely convenient tool that would speed your infringement notices.”

As composer and notable copyright defender Maria Schneider has written, YouTube’s reserving of its “copyright protection feature for hand-picked rights-holders, blocking the masses’ ability to fully protect their Constitutional right, even though the technology is right there in YouTube’s dirty fingers, is like denying a rope to a drowning person.” 

Interestingly, YouTube does extend a rope to some of the drowning folks. If your channel has more than 1,000 subscribers and you have more than 4,000 public watch hours over the last 12 months, then you can apply to be part of the “YouTube Partner Program.” If your application is accepted, then you will be granted access to Copyright Match, a tool that is kind of like Content ID Lite, finding “full reuploads of your original videos on other YouTube channels.” 

Yes, there’s the catch. The telltale sign that this rope is not as sturdy as it seems lies in the “reupload” part of that description. Copyright Match will only track down a work that you have already uploaded yourself as a “public video” – which means that in order to prevent others from making that content available for free on YouTube you have to… make that content available for free on YouTube. That’s a great arrangement if you are one of YouTube’s “creators” who makes videos specifically for the platform, with the understanding that they will be given away for free – but if you are a creative who is trying to make a living by actually getting people to pay for your works, it’s nothing but exploitation.

But then, YouTube built its business by exploiting other people’s creative works. Content ID actually emerged in the wake of a 2007 lawsuit filed by Viacom, which alleged that more than 150,000 copyrighted works had been uploaded to YouTube without permission. Back then, the platform was a veritable cesspool of illegal content. Thanks to “safe harbor” laws that make them not responsible for the content their users uploaded, they have been able to amass the world’s largest repository of copyright infringing content with no legal ramifications, essentially becoming a legitimate global piracy website. In the process, they have perpetuated a perception that content could be high quality and free, and that no one would be worse off because of it. I think we all know now that none of this has been for free.

Viacom would eventually settle its lawsuit with YouTube – Content ID being one of the results of that settlement. Meanwhile, YouTube got to look like they care about the theft of creative works on their platform, even if that only applies to creative works from partners who have the resources to haul them into court.

In the end, YouTube’s ongoing refusal to extend Content ID to everyone is baffling. If the technology is already in place and proven to be effective, why not just offer it up? Schneider wonders if YouTube is hoarding it because of the fear that nearly every piece of creative content will connect back to some rightsholder who chooses for it not to be monetized. If that were the case, then YouTube’s policy would make sense, because it’s clear that giving the creatives of the world a way to effectively protect their copyrights would hurt YouTube’s bottom line. 

In that case, protecting creators’ rights to their work would merely be the right thing to do for YouTube, and the company has made it abundantly clear that doing the right thing is rarely the driver of its business decisions.