Vid platform has biased its takedown procedures in favour of copyright owners, says lawyer
YouTube broadcaster Gareth Evans, who has 770,000 subscribers for his guitar tutorial channel, had an unwelcome surprise on 28 August.
He received a "copyright strike", meaning a copyright owner sent a "complete and valid legal request", according to YouTube's description, to take down a video.
The killer question is this: "If you get 3 copyright strikes your account, along with any associated channels, is subject to termination. All the videos uploaded to your account will be removed."
YouTube is "pretty much pivotal in my ability to maintain myself," Evans told The Register, so the threat immediately put him and his family under stress.
The copyright strike was from anti-piracy specialist MUSO on behalf of Faber Music. The claim was regarding guitar tabs – songs marked up with chord diagrams – which Evans shows on many of his guitar videos.
The situation got worse. "I'm literally fighting for my YouTube life," said Evans, informing his followers that the channel was due to be terminated on 27 September after receiving five copyright strikes. Evans claimed that "every aspect of every video is generated by myself", though he does cover well-known songs, and that the tabs were for his own arrangements of the songs, not copied from published tabs.
YouTube partner support was less than helpful. Evans asked what part of his videos infringed copyright, to which the reply was "we do not have this specific information." This, he felt, did not tally with YouTube's guidance to copyright complainants, which says they must "clearly and completely" describe the content that they seek to protect. Either YouTube had the information but was holding it back, or the complaint was not valid, he figured.
The whole system is automated, he said, and it seemed impossible to get a human to consider his case. "I've been creating on YouTube for 10 years. Not one person from YouTube reached out to me and offered me advice and support. I've gathered over 100 million views and they've happily monetised those videos and taken the lion's share of the revenue." When he took the initiative and contacted YouTube, he got no advice "outside of what's readily available on YouTube's help center. It's all one generic help article after another."
Events followed a familiar pattern for those who have observed how technology giants deal with smaller customers. The one thing a popular YouTube broadcaster can get is publicity, and this sparked some action. "Had I not kicked up a stink on social media, YouTube would quite happily have allowed the termination of my channel without even contacting me first," Evans told us. "YouTube has only been helpful since my story hit the front page of Reddit."
After this publicity, "YouTube copyright support contacted me personally," said Evans, "and provided me with all the information that was submitted."
One issue is that other smaller cases, which may equally deserve support and attention from YouTube, do not get it because the content creators are less successful at drawing attention to the issue.
Ian Penman, founding partner of London-based New Media Law, told us: "YouTube's big problem, which happens to any site which allows user-generated content, is they allow people to put content up before it's reviewed. So they are always fighting a defensive position. YouTube has lots of stuff up there all the time which is copyright-infringing. If they go away from that model, which they've had from the outset, how many people would they have to employ to listen and check every piece of content?"
The consequence is that the company waits for copyright owners to complain. But is the complaint against Evans valid? "There are fine details which need to be gone into as to how long he plays each piece for," said Penman. But if he put his fair-use argument against the publishers, "the court fees alone would be thousands of pounds let alone the legal costs of drafting any claim". Therefore, the publishers "will succeed by browbeating him. If he were to win the lottery, the position changes immediately."
YouTube, said Penman, "has deliberately, in my opinion, biased its notice and copyright takedown procedures in favour of the copyright owners to keep them quiet, because they are more likely to take YouTube to court if their content is being infringed and YouTube refuses to take it down."
YouTube does have a semi-automated system for dealing with copyright in music performances – and there is often more then one copyright involved, one for the sound recording and one for the musical composition. Copyright owners can submit "content ID" claims as an alternative to copyright strikes, in which case the creator has options to share revenue rather than removing content. There is an explanation of the system here. Many of Evan's videos were already covered under that scheme, but this did not include the guitar tabs.
The complaint against Evans is from a music publisher. "I sympathise with the music publishers because they are under-paid and under-represented in respect of streaming platforms,"
said Penman. "Traditionally they've always received less than the record company but that was because a CD was a bit of plastic that had to be manufactured and sent to a shop, so publishers got a lower margin. In the case of streaming that is not the case. But that is an argument for them to take up."
What are the implications for people uploading content to YouTube? It is all about reach, said Penman. "Gareth Evans has 770,000 subscribers, so that's why he has come up against the industry. So how many people do you expect to look at it? If it's going to 5 or 10 or your personal friends, frankly no one's going to care. If you get to a point where the industry is looking at income it could have received, they have to police it and take it down, otherwise it sets a precedent."
This also explains why a channel may build up a following with everything apparently OK, but then reaches a tipping point where it runs into the kind of issues facing Evans.
The implications for someone whose livelihood depends on YouTube can be severe. Evans feels that YouTube is broken. "For the system to allow third-party operatives to come and claim my videos so easily and overnight get my channel paused and pending termination, that is just such a precarious position for me as a content creator who relies on that platform," he said.
But that may be an inevitable consequence of building a business on a third-party platform over which you have no control. Asked how he would advise those starting out, Evans said: "I would definitely diversify the platforms that I publish to. The big ones are Facebook, Instagram, and YouTube, in terms of the type of content I produce. Diversify the revenue streams, do not rely on YouTube."
Since Facebook owns Instagram and is no easier to deal with than Google/YouTube, this degree of diversification is of limited value. Another option is smaller platforms like blockchain-based Odysee, or Rumble, which takes a different approach to copyright, but YouTube is ranked as the second most popular website globally (after Google) and there is no other option with equivalent reach.
What's next for Evans? His channel was not deleted, but "in order for the music publishers to agree to reinstate the YouTube channel, I needed to take down my website and remove over 400 guitar lessons from YouTube. The publishers say that the guitar tabs (musical notation) must be licensed before I distribute them, even on the videos," he said. He has set up a GoFundMe to pay someone to rework the videos and has already raised nearly £3,000 from a £2,000 goal.
That does not fix the issues with YouTube and its lack of support for smaller content creators. Penman, for his part, is not happy with the whole principle of allowing anything to be uploaded until someone complains. It is not just about music – all kinds of illegal content may be posted.
"Either the law should be applied against Google or we need a new law," he said.