Here’s a story that really reflects some of the issues that arise as a consequence of current automated copyright infringement reporting processes online, and the imbalance of power between corporate copyright holders and individuals.
In 2009, a Youtube user named sw1tched uploaded a video of himself playing a Nintendo video game from the late 1980’s called Double Dribble. In the clip, the user exploited a glitch that allowed his onscreen player to continuously shoot accurate 3-pointers. On May 15th of this year, Fox aired an episode of its irreverent animated series Family Guy where two of the characters played Double Dribble, and one of them took advantage of the glitch as well. The scene cut away from the show’s own animation to actual gameplay. According to TorrentFreak, the gameplay was identical to what sw1tched had uploaded seven years ago; that is, Fox didn’t recreate any of the game action for its show, and simply pulled the footage from YouTube.
Shortly after the episode aired, sw1tched’s video was replaced with a notice that read: “This video contains content from Fox, who has blocked it on copyright grounds. Sorry about that.” Why? Because of YouTube’s Content ID system. In order to help copyright holders catch infringers, the video publisher uses a unique identifier for uploads and such uploads are scanned against the YouTube database for anything that matches it. The copyright owner then gets to decide what happens to the supposedly infringing content found – for example, it can be taken down or kept up and monetized – and then the alleged infringer may get a strike against his or her account. It’s also on the alleged infringer to fight the claim.
Let’s break down what happened for a moment: Fox took content that it didn’t own, used it with original content, uploaded it onto YouTube as a content owner with access to Content ID, and the automated system flagged the old video as copyright infringement because of its inclusion in the Family Guy episode.
To be fair, sw1tched doesn’t own the gameplay content, and Fox’s use may fall under fair use (separate analysis would be required to explore this). Fox also has a right to police its content and one can even understand why. There’s no indication that Fox intended to get sw1tched’s video removed either. However, YouTube’s system clearly assumes that anyone who uses Content ID, which is usually larger entities like Fox, is using it properly and that claims are accurate. No human analysis, which would’ve made it easier to discover that the original video was not infringing on Fox’s content, was conducted on YouTube’s end or by Fox. It was up to sw1tched to clear his name and any penalties against his account. Even though he did, in a lot of cases, individuals may feel too intimidated to file a counterclaim because it could trigger a lawsuit.
Once the matter was brought to the network’s attention – with some help from Family Guy creator Seth MacFarlane – the Double Dribble content was put back up. Fox also issued this statement: “This video in question was removed as a result of Fox’s routine efforts to protect its television show Family Guy from piracy. As soon as we became aware of the circumstances, the content was restored.”
TorrentFreak later reported that another YouTube user’s gameplay was used in the episode, removed through the same process, and then later restored.
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