Well, here we are again. I’ve written before about the dangers of automated enforcement before, and very little has changed. This time it’s Twitch, which has implemented a system that will scan for, flag, and mute copyrighted music in VOD’s. It’s going about how you’d expect, even muting crowd noise from an official DOTA 2 tournament conducted by Valve.
Unfortunately, automated enforcement isn’t going anywhere. The Internet has enabled unprecedented access for amateurs seeking to create and distribute media – which is awesome – but with that comes a lot of mistakes made by people unfamiliar with professional media work. Couple that with the sheer magnitude of media published nowadays, and automated systems are basically a necessity for any meaningful enforcement of a creator’s legal rights.
This presents a massive problem for those of us that use music legally. Whereas some kid making a sweet gameplay video may not know (or care) about how to properly use music, we as TV/film professionals have been doing this forever. We secure the proper licenses, pay the proper fees, fill out the proper cue sheets, and everyone’s happy. And if we don’t, somebody gets sued for a ton of money. It’s pretty rare.
But all that’s changed with the YouTube generation. I can air a program on TV all day without fear – but as soon as I put that same program online, I can expect some form of swift automatic punitive action, regardless of whether or not I’ve properly secured the rights. I’ve even had videos taken down for featuring legally purchased stock music, a product whose entire purpose is to be incorporated into other works.
So what can we do?
Simple: add real accountability.
As it stands right now, if you issue a false DMCA takedown notice, you’re liable for misrepresentation and could owe money to whoever you issued the takedown against. But there’s a pretty massive loophole in this accountability: you have to know it’s a false takedown (17 USC 512(f)). See where I’m going? Massive automated system = no real way for humans to know exactly what it’s doing = no knowledge of false takedowns. Want a real example? Hotfile’s countersuit vs Warner Bros. WB straight-up admits that they took down stuff that they shouldn’t have – then goes on to say that it’s a moot point given how the law’s written.
This is where we have an opportunity to make things right. Due to the scale of infringement activity, some form of automated enforcement will probably always be necessary. But what’s missing is an incentive for copyright holders to ensure that such a system avoids collateral damage. Took down 100 legal videos out of 10,000? Who cares! Well if you spent months of creative effort on one of those videos, and followed the rules while doing so, you’ll sure as hell care – and you deserve to be protected in your artistic endeavors the same as the big companies wielding the takedown hammers.
Too onerous for copyright owners? Too bad. You want a shotgun, you need to use it responsibly.