Red light means we're on.
Now we're going to have this moving in the background.
-Let's do this thing! -Yes!
What's up, Insiders!
This video's gonna be on Content ID
copyright, fair use, everything in that bucket.
So, hello! I am Barbara.
And I'm David, and I am the PM who's responsible for Content ID.
Just want to caveat this video by saying as a reminder, we are not lawyers!
This is not legal advice at all.
We're simply trying to have an informal conversation
where we're trying to give you our opinions and our perspectives on the world.
Go check out the Help Center for all of the official documentation
about everything we're talking about today.
We're gonna start off with an easy one.
How should creators think about fair use?
YouTube doesn't have its own definition of fair use.
Fair use is a concept in copyright law
that says there are certain ways you can
take advantage of copyrighted material that does not require a license.
Just to be clear, fair use is a really essential part of copyright
That is the mechanism that allows critique
and it allows people to do things educationally and use material
in ways that a license either would be likely denied
because you're saying "Hey, I watched this film
and it was terrible. Look how they shot the scene"…
-Yeah. -…or other situations like that
where you wouldn't get a license.
So, it's a really essential part of copyright
and it's an essential part of copyright on YouTube.
The challenge is, again
that the final determination can't be on YouTube.
It has to escalate outside of YouTube…
-Yeah. -…to get to a final determination of
"Yes, this is fair use" and "No, it's not."
My opinion about fair use…
your legal counsel's opinion about fair use…
these are all helpful
but ultimately, the only place where we can say
this is or is not fair use is with a judge
and we've seen lots of cases that have baffled even, you know…
where one judge has been overturned by another judge in an appeal
So, even among judges
there's not a good easy way of determining what's definitely fair use.
Yeah.
As everybody knows, Content ID is mostly a matching system
and so when your matching things
the context around that is really not possible to determine.
-Oh yeah. -So, the system will identify a match
and say, "There's a claim there."
It can't know about fair use
and so what we do in Content ID
because we know the system is not able to detect fair use
we've tried to build the dispute process
so that creators don't hit a dead end and they can make informed decisions
and escalate that dispute as high up as they need to
ultimately, if necessary, all the way up to a judge
and unfortunately, that's just the way it works.
That's the only place where fair use can finally be determined.
Okay, so this already is kind of blowing my mind.
So, fair use is something that really pertains to legal cases
and within the YouTube system
that part doesn't really happen until you have a claim.
You dispute the claim and then there's an appeal process
and then… all the way at the end of this process
is really when these fair use terms come up.
And I guess to that end it's really important creators understand
-how our dispute and appeal process works… -Yep.
…what risks they're taking as they go through that
and so they can make a really informed decision
about how they want to move forward if they choose to rely on fair use.
Do you want to get into that?
Sure, just at a real light level because there's quite a bit to it, but…
-Yeah. -…at a very high level
after you get a claim
and again, the claim is essentially saying
we have found a match between this piece of material that was given to us
by a content owner and this bit of material in your video.
You now have an option to dispute that claim
and if you choose to dispute that claim, there's no risk to your channel.
You're not going to get a strike or anything like that for a dispute.
That's a key point.
I've had a lot of creators ask me "At which point in this whole process
is it going to be detrimental to my channel?"
-Right. -Yeah.
So, that dispute will have to go to the content owner.
People ask "Why can't YouTube look at that dispute?"
-Yes, good question! -Right!?
So, that's a challenge.
YouTube has no knowledge of
what parts of the content the content owner owns
what they license, how they interpret fair use
if they're going to back off early
because they do have the right or the ability to back off early.
They don't have to go to court.
They could just say, "That's close enough to fair use"
and move it away.
So, YouTube's not able to make those determinations for the owner.
-Okay. -So, you can do your dispute
and that might be accepted, they might back off the claim
and we actually… that does happen.
I think a lot of creators would argue it doesn't happen often enough
and I think that's a fair point.
The next step would be to go to the appeal.
The appeal is a piece we introduced
because we didn't want creators to ever hit a dead end.
We wanted them to have the right to take their fair use argument
all the way to court if they wanted to.
-Okay. -That appeal basically gives creators
the option to tell the claimant
-the person who's claiming their video… -Yeah.
"Get off my video or issue a legal copyright removal."
And the reason we did that is that
by forcing the claimant to issue a legal copyright removal
they are exposing themselves to liability, potentially, for fraud
because a legal copyright removal is a legal object.
It's a legal action, rather.
There are penalties for making a fraudulent legal removal
so they tend to take those decisions much more seriously.
As a creator, you can now appeal your video.
Now, you do have to understand that the appeal…
you're giving the content owner two options: take your claim off
or issue a takedown on my video
and as many creators know
a takedown on a video comes with a copyright strike.
Yeah.
This is part of the mandated repeat infringer policy
that YouTube must follow
under the Digital Millennium Copyright Act, the DMCA.
-Yep. -Some acronyms to throw up
to make this more fun!
You will get a copyright strike if the claimant issues a takedown.
It's really essential creators understand that
one copyright strike does not impact any functionality of your channel.
You still get to keep all of your features.
Right, so you're risking a copyright strike and you're risking your video.
All the features will stay; the copyright strike will expire in 90 days.
Appeals are considered more carefully by claimants than disputes are
because they're exposing themselves to some risk.
I guess, just following through the rest of the process…
-Okay. -…just because we're here!
So, we made it through the appeal.
We're either getting a takedown or the claimant backs off.
Yeah, best case, they back off.
Worst case, now we're sitting there and we've got a takedown.
We've got a strike on our channel, which is going to take 90 days to expire.
It's not affecting functionality of the channel
-but it's there and it sucks. -But it will affect functionality
-if you get 3 total strikes on your channel… -Exactly.
…so do keep that in mind.
If you get three strikes at the same time…
so before the before the strike has expired
that would result in the channel getting terminated.
Be careful about that.
But you're sitting there and you now have this video that has been taken down.
You have the right to submit a counter-notice to YouTube.
Is this done through YouTube?
-This is done through YouTube. -Okay.
The counter-notice basically is saying
"I would like my video put back up."
And so if the claimant is not willing to file a lawsuit
YouTube has to put the video back up.
Wow!
-It escalates fairly quickly… -Okay, we're there.
…which is why it's so important to have some legal advice
to understand what your position is.
Again, now we're escalating even further…
-Yeah. -…the claimants spend a lot of time
thinking about these, and so, you know
whereas some of the earlier decisions they might make a little hastily
-this one… -This feels like a pretty big one.
…they think pretty carefully, because they also are wary about…
bad fair use cases, so they will be very thoughtful about these
so you should understand your rights and understand your position.
But it isn't out of the question
to pull this lever.
So, if you submit a counter-notice to YouTube
we will review that counter-notice and make sure it's complete and valid.
Okay.
And then we'll forward it to the claimant…
-Okay. -…and now we have to wait
again by law
10 business days (I think that's the number)
before we can restore your video
and if they don't provide to us evidence that they have filed a lawsuit
then we will restore the video and take away the strike.
Can they do something after 10 days?
-No. -It's only this 10-day window
where an action must happen…
-And we don't… -…otherwise it's all done.
Yeah, we also don't let them go again
so they can, obviously…
they can sue anyone they want at any time
but they can't they can't issue another takedown on the same video.
Holy jeez, that was like a total mind warp about all things Content ID
matching, appeals, disputes, counter-notices, all wrapped up in one.
It's a complicated world!
-It is! -And yeah
I kind of see my job on the creator team as being the guy who has to sit
between this pretty scary and complicated set of legal rules
and some pretty complicated content industry deals with YouTube
and also fight for the creator's rights
and it is an area that we are constantly working on
constantly trying to push.
The fact is these laws really, you know, weren't created to work at scale.
They work well when they are individual cases
that get argued by two lawyers in front of a judge.
They don't work well at the scale of YouTube
and so we're always trying to figure out how to maintain fairness
and operate at the scale we need to to keep things running.
Okay, so I have some questions you've dropped as comments on our videos
that now that you've gone through explaining fair use
and the claiming, appealing, counter-notice process
I'm not even sure if the questions make sense
but I'm hoping you can give our watchers some quick answers to the questions
how they've been asking them.
-Sure. -Okay.
"Can you read books? Is that fair use?"
So, assuming that the book is copyrighted
because some books are public domain
but assuming that the book is copyrighted, I would say that
if you read a book cover to cover
it's probably going to infringe on somebody's copyright.
I'm not a lawyer, so again it's my opinion.
-All those caveats still… -Yeah, all those things.
But if you were to, say…
you wanted to critique something about a character
or a style of how the book was written or something like that
then that would lean more towards a fair use determination.
"What are guidelines for reaction, news, drama videos
when you want to use clips and be reacting to those clips?"
-Yeah, so… -Audio visual clips to be super declarative.
Reaction is one area
that we've had a little bit of a test case, right?
We had the H3H3 case
where there were some famous YouTubers
who reacted to some other YouTubers
and that actually did go to a court and was found to be fair use.
That ruling was actually quite useful for looking at some other ones.
The kinds of things the judge considered were
-how much commentary was added… -Okay.
…and how much of the material they used.
They went pretty far
to really be reacting to the video and adding more to it
than just watching the video and chuckling here and there
and maybe saying, "Oh, that was funny!"
Where that really became a stronger fair use case
is the commentary on the video itself
not just reacting like, "Oh, I'm surprised," "I'm disappointed," whatever
but the analysis they did watching that video about
the video and the creator.
I guess this is somewhat related.
I guess that did cover "Is it possible to fairly use clips from TV?"
Does it matter where these clips come from
whether they come from YouTube, TV, other sources?
-Does that matter at all? -No, doesn't matter.
Every time somebody makes any kind of a recording
or fixes any idea, that effectively is copyrighted, right?
So, if you draw a picture, that's your copyright.
Okay, that covers the next question
which is "Can I use content from… other content from YouTube?"
Anytime you use somebody else's copyrighted material without permission
you are taking some degree of chance that you'll have to defend yourself with fair use.
I'm going to ask a question that I'm really interested in.
-Sure. -Do you absolve yourself
or does it help your case in any way
if there is text that is embedded in the video
before the video, somewhere in the video
or if it happens to be in the description or is in the title
that says something to the tune of "No copyright infringement intended."
Right, no, generally that won't have any bearing on it.
It shows you understand that it was copyrighted
which could be a problem depending on your arguments
but ultimately the fair use determination wouldn't consider that at all
so declaring that it's somebody else's material
saying, "Hey, somebody else, if you don't like it
please call me or email me instead of issuing a takedown"
you can do that
but from a legal position I don't think it will change your standing.
And it also doesn't change anything with respect to Content ID.
Content ID is not going to look at your description and say
"Oh they didn't intend copyright infringement so we won't do anything with these videos."
It does not get you covered anywhere within our automated systems at all.
No, and that's just because it doesn't actually have any bearing
on whether or not it's infringement.
How much does time
and the length of a clip or a piece of content that you use
factor into fair use or copyright here?
One of the factors in determining fair use is how much of the material you use.
But that alone isn't a very strong fair use argument.
If you use just a few seconds of a song
in order to kind of analyze how the guitar riff is played
then the fact you used very little is helpful for your case.
But if you just use a few seconds of the song
just because it sounds great at that point in your video
the fact that it's short is not going to be a very strong factor.
It's going to be weighted heavily.
There's no minimum amount of time that somebody can claim.
There's no minimum. In fact, there's of cases of
samples and things like that
where musicians and songwriters sue each other
for using small amounts of each other's material
even just a chord progression or a few notes.
I know it was a bit of a doozy!
There was a ton of information in there about Content ID and fair use
but thank you, David, for sitting down and explaining all of it to us.
If this was useful for you
if you want to see more videos about Content ID, copyright, fair use
everything that would fall into that bucket
please let us know by hitting that like button on this video
and if you have follow-up questions, drop them as comments down below.
You guys know the drill!
Once again, we are Creator Insider.
We are your informal source for information about YouTube
from the tech teams directly ourselves.
Please do hit that subscribe button
If you would like to get more information, more videos like this.
Hit the bell to make sure you get notified whenever we upload.
I will see you guys in the next video.