Make the financial consequences of bogus copyright claims expensive and enforcable.
Youtube needs to make it impossible for "VengefulFlame" to register a copyright claim, without a real-world identity attached to it and a ironclad agreement that they 100% have the right to enforce this specific copyright claim, under agreed up front financial penalties if they are wrong (even if they're accidentally or algorithmically wrong, they still owe the penalty). Youtube should pay (or perhaps 70:30 split?) those penalty payments with the content creator who was fraudulently or accidentally accused, if paid out via Youtube T&Cs and contractual arrangements, and Youtube should provide all required evidence and documentation (including verified real work personal identities and their digitally signed assurences to Youtube of copyright ownership) to the victim in a super-easy "boilerplate" form, so that it'd be a slam dunk legal case that any lawyer with an associate with an hour or two spare would happily take on on a no-win no-fee basis.
There's probably some cross jurisdiction legal difficulties to address, but I reckon YT should step up to actively take abusers of copyright claims to court in their own jurisdictions on behalf of their victim content creators. If you live in a jurisdiction without strong civil copyright law which includes penalties for fraudulent claims, maybe you should pay a bond before being allowed to file any copyright claims?
The underlying problem here is that Google has no capacity to adjudicate copyright claims. How the heck are they even supposed to know who the copyright holder is? The troll claims it's theirs, the user claims it's theirs, they have no basis on which to believe one or the other.
In theory you can register with the copyright office, but it isn't required and >99% of YouTube users won't have registered anything, so then what does that prove?
This before you even consider fair use, which is hard enough for judges after a year long trial, much less something they're expected to decide thousands of times every day.
So you have the claimants post bond. Then what? You still need a way to know which claims are false, which they still haven't got.
They're making decisions based on no information. They're trying to play a role they're not equipped to play. Google is not the court system.
For starters, actually enforce the required elements of a DMCA notification:
(i) a legal signature
(ii) identifying the infringed content
(iii) identifying the infringing content
(iv) proper contact information
(v) statement of good faith belief the content is infringing
and (vi) statement the information is accurate and statement under penalty of perjury of authorization.
Last I saw every pseudonymous troll can make claims, not fulfilling (i) at the very least. I remember I used to click some of those chilling-effects/lumendatabase links google displays when they removed some things from search, and I remember I found it rather curious that a lot of these usually where incomplete notices, usually failing (i) (ii) (v) and (vi) (and they only got (iv) right because they emailed and every email has a From:).
"How the heck are they even supposed to know who the copyright holder is? The troll claims it's theirs, the user claims it's theirs, they have no basis on which to believe one or the other."
The DMCA has a procedure for that:
1) Copyright "owner" claims content with google
2) "Uploader" files a counter claim with google
3) At which point google has to put it back after 10 days if the "owner" doesn't notify google they filed an action against the "uploader" in a court.
Yes, this is still far from optimal, for all parties involved, however, it's still a lot better than what google does with ContentID.
I'm not saying Google should adjudicate on the copyright ownership. (In fact they probably should explicitly avoid doing so, as you point out.)
What they should, in my opinion do, is ensure that if a claim is made, and it's then objected to - that the claimant has a realistic risk of direct financial penalty for doing so fraudulently. Google should demand all relevant documentation for both parties before accepting or acting on a disputed claim, so that either or both of them have a lawyer/court ready package of the specific claims, counterclaims, and identities of everybody involved.
I also think it would be smart and desirable for Google to have an internal mediation system with a penalty enforceable by T&Cs for Google Accounts. If, for example, Sony Music's lawyers incorrectly claim copyright on a content-creators piano performance of a public domain work (which has happened more than once), and the performer objects, it would be nice if Sony had the option to say "Ooops, sorry, charge our Google account the $500 erroneous claim fee, and pay it to the content-creator" to avoid having the content-creator's lawyer slam dunk them in court with the documentation Google provides as above.
There should also be the same sort of "three strike and you're excluded from all google services forever" nuclear option, that applies equally to copyright claimants as it does to content creators, and also applies equally to Sony Music and VengefulFlame's legal identity. Sony need 100% to be at-risk of having _their_ content deleted from Youtube and their Google accounts permanently revoked for sending fraudulent copyright claims, just the same as the rest of us risk having our Google accounts shut down for illegally uploading Sony's copyright works.
They could fall back to the legally required process (DMCA takedowns). There is no law requiring Google to take down channels because of reports on a few videos, or requiring Google to keep content down after the uploader has re-affirmed it is not breaking copyright law (called a DMCA counter-notice).
That's not even remotely what we're talking about here. Anyway, this has nothing to do with DMCA but with Google's Content ID system which is much worse than DMCA.
No, that's not how it happened. ContentID is a proactive system that goes well beyond what the DMCA requires and skirts around the DMCA penalties for false claims.
The DMCA requires big parties like YouTube to create systems like ContentID and the copyright strikes to remain shielded from copyright infringement claims. You can be sure Google isn’t running these systems because they want to.
Not exactly. As long as YT acts the way the DMCA specifies (receive takedown notice, take down content, notify account owner), YT maintains safe harbor protection.
The problem is that Big Media doesn’t like the idea of safe harbor. It also doesn’t like the potential to have their unlicensed content available while a court decides (they file a DMCA takedown, but the account owner claims “fair use” and YT puts it back up - now it’s online until a court orders it offline.) Hell, Big Media hates the idea of fair use.
ContentID came about because Google decided it would be cheaper to just allow Big Media more direct access than to keep defending themselves in spurious lawsuits designed to make example cases and have parts of the DMCA nullified.
They aren't spurious lawsuits. Google is pirating content and selling ads on it.
Everyone knows that. YouTube built itself on stolen content. Any of us could go on there right now and watch any number of pirated movies, songs, TV shows. .. you name it.
The issue seems to be that it's nearly impossible to find human reviewers and a lot of the system is designed around lying to you about it. Someone made a video about a year ago about this, but even if you request manual reviews and reply to their emails, you consistently just get emails from YouTube that are automated bots, disguised to seem like humans: the emails have a name in them, the reply period is randomised, etc.
Even people with millions of subscribers are not immune to this, in fact they often have to hope their fans can cause a big enough mess on Twitter in large enough numbers for YouTube to notice and suddenly all those "manually confirmed" copyright flags disappear.
Even bigger of an insult to injury is that there are clearly corporate YouTube accounts that are above this system, the accounts of Kimmel, Trevor Noah, etc are immune to any of these.
And it's not just copyright, but monetisation, too.
Currently Youtube's system encourages this behavior by offering the possibility of profit[1] without any risk. There are no consequences for making false claims (even when the claim is very obviously fraudulent). There isn't even any risk of Google banning the account, while creators are given "strikes"[3] against their account. Google is incentivizing fraud wile driving away a lot of talented creators.
The only way this can be fixed is by reversing the incentives. There has to be consequences for making false claims. There must be some amount of risk when making a claim. Also, Google could at least improve the situation easily by e.g. holding a video's revenue in escrow until the claim is fully resolved instead of giving the money t to the claimant immediately (I call that "theft").
[1] YT allows successful claims to force monetization on a video and take the resulting revenue. There are numerous examples of e.g. musicians having their own music claimed, or people losing the income from multi-hour educational videos[2] because ContentID matched 13 seconds of random footage.
[3] On the 3rd strike, Google automatically delete their entire YT channel and a the "offender" is permanently banned of from all Google services.
TL;DR - video [2] has an outstanding explanation of YT's takedown system from a creator's perspective (YT took down His 4 hour thematic analysis of Made In Abyss).
If that's the solution then do be it. Hire more people. "We can't properly handle copyright violations because our algorithms aren't good enough" is no excuse. they are selling ads on copyrighted material. It's illegal.
It's the same problem. Google can say we have a content ID system to handle copyright violations. See how good it is?
Behind the smoke and mirrors they can make money on pirated material.
All the while throwing their hands up in the air. When all they have to do is hire a human being to evaluate the facts. People know what copyright violations are. Pay people to make the call.
It's as simple as that. Hire people to do the job and it will be done. Computers don't do it right.
Do you want to hire people to evaluate flags and disputes, or to evaluate all videos? If just flags and disputes then there will be false negatives on pirated material that no one has flagged yet. If all videos, that would be very expensive because 400 hours are uploaded every minute[1]. And it still would have false negatives, because how is the human reviewer supposed to know that the song played at 3 minutes into some video is a copyright violation or not? The song could have been an original composition, or it could have been licensed by the musician to the youtuber. You can't expect a human to have knowledge of every piece of copyrighted content in existence to be able to know if the video matches any of those pieces of content.
An OSP must "not receive a financial benefit directly attributable to the infringing activity" to qualify for § 512(c) protection. However, it is not always easy to determine what qualifies as a direct financial benefit under the statute.
One example of an OSP that did receive a direct financial benefit from infringing activity was Napster. In A&M Records, Inc. v. Napster, Inc.,[10] the court held that copyrighted material on Napster's system created a "draw" for customers which resulted in a direct financial benefit because Napster's future revenue was directly dependent on increases in user-base.
How is it possible to review all of it? How can a human know whether a song is infringing someone else's rights or is an original work by the uploader?
You're making a valid point in general, but do note that in this particular issue the problem is that they are actually overzealously removing videos with potential copyright infringement.
I might suggest that is their intent. They can point to the articles exclaiming that it quickly responds to claims as a cover for all the actual pirated content they earn ad dollars on.
