Two billion copyright claims are processed every year through YouTube’s Content ID platform – a staggering figure that underscores the scale of this content management system.

As an enforcement tool, Content ID has often been criticized by creators but rightsholders, at least those who have access to it, are generally happy with its performance.

Aside from addressing copyright infringements in an automated fashion, the Content ID system brings in billions of dollars in revenue. Many rightsholders choose to monetize copyright-infringing videos instead of taking them down, which can be quite lucrative.

This approach was initially controversial but not anymore. In a way, one can argue that YouTube engineered a way to monetize copyright infringement. YouTube itself also benefits from this strategy. After all, a video that’s taken down doesn’t bring in any revenue at all.

Despite the benefits for large rightsholders and YouTube itself, Content ID is unique in its kind. Most other large video services and content storage platforms simply take content offline. Developing a similar technology isn’t easy, but one could argue that this represents missed opportunity.

Fingerprint, Find, and Report

New York-based tech company WebKyte recognizes the potential and has developed a technology that might be able to fill the gap one day.

WebKyte is certainly not a newcomer to the copyright scene. The company, formerly known as WebKontrol, was founded over a decade ago and has offered fingerprinting and takedown services for a long time. It’s one of several companies in this business, but one with an interesting pitch.

One of the services on offer is WebScan, which allows copyright holders to search for pre-indexed content on 12 large video sharing platforms: Aparat, CDA, Chomikuj, Dailymotion, FC2, Mail.ru, OK, Rumble, Videa.hu, Vimeo, VK, and Webshare.

Several of these services have been listed in the USTR’s overview of notorious piracy markets. However, they all aim to operate legally and, if rightsholders report pirated content, the platforms will take it down.

With WebScan, rightsholders can fingerprint their content and instantly ‘scan’ for content matches on these sites. If any matches are found, the associated URLs can be targeted through takedown notices.

While we would never vouch for the accuracy of any fingerprinting filter, WebKyte provided us with access to their platform, allowing us to upload files and check the accuracy. After uploading a copy of TPB-AFK to the system, near-instantly it found over 2,000 matches across the dozen platforms.

These don’t need to be taken offline, but as far as we could see, the detected links were indeed pointing to copies of the TPB-AFK documentary. Whether it missed any links is unknown, of course.

A Platform-Independent Upload Filter

While WebScan is a handy tool for rightsholders, WebKyte has a service for online platforms too. The latter refers to the ContentCore platform, which offers a Content ID-like tool ‘as a service’.

“ContentCore is a ready-to-use YouTube Content ID ‘as a service’ for UGC platforms of any size to detect illegal content among user-generated uploads,” WebKyte’s elevator pitch reads.

In essence, it’s a copy of the earlier mentioned WebScan technology, installed directly at the online platforms to automate takedowns. Put more bluntly; it’s an upload filter.

While pirate sites are not necessarily eager to install upload filters, plenty of legitimate platforms might find them useful. In addition to appeasing rightsholders, ContentCore also helps to ensure that UGC platforms comply with Article 17 of the EU Copyright Directive.

ContentCore essentially automates the takedown process. Currently, most rightsholders find content and then report it to the platform, which has to process the request and take action. Under the automated system, copyrighted content is fingerprinted and added in advance, so pirated copies can be flagged when they’re uploaded.

Errors and Nuance

Upload filters are not perfect and generally lack ability to factor-in the nuances of copyright law, such as fair use. WebKyte hasn’t solved this problem but CEO Olia Valigourskaia believes that, when dealing with full videos, rightsholders can detect copies with ‘100%’ accuracy.

The technology can also find partial clips and even modified videos, but that opens the door to inaccuracies. The company’s internal tests on public datasets reveal that the current error rate is about 2.7%.

WebKyte notes that it minimizes the risk of overblocking. That said, when dealing with millions of takedowns, a relatively small percentage will result in big numbers. This means that platforms that use this service may want to build extra safeguards against overblocking, including fair use.

At the moment, several user-generated and social media platforms are using ContentCore but none of these would like to have their name mentioned in public. WebKyte did say that, for one ContentCore client, it currently checks 173,000 user-generated videos for copyright infringements every month.

Monetizing Piracy

To illustrate the scope of the ‘piracy’ problem online platforms must deal with, WebKyte shared a selected dataset with us. This shows that copies of a Hollywood film that premiered in December 2022 were uploaded over 3,000 times to the Polish file-hosting platform Chomikuj in one year.

Rightsholders usually want this content taken down, but there’s increasing interest in monetization, perhaps in part due to YouTube’s success with this strategy.

At the moment, no independent platform has a full Content ID equivalent with monetization capability. That’s the “holy grail” for WebKyte, as that would create a win-win situation for rightsholders, platforms, as well as WebKyte itself.

Valigourskaia says that rightsholders have shown an interest in monetization, so it may only be a matter of time before it is rolled out more broadly.

“From our experience, rightsholders are on board with varying approaches to monetization policies. For instance, major Hollywood studios are eager to monetize clips like trailers and behind-the-scenes videos that get posted on various UGC platforms,” WebKyte’s CEO says.

“Other rightsholders, such as Bollywood studios, seek ways to monetize full-length content on AVOD platforms. ContentCore is the tool that will enable platforms outside of YouTube to explore new revenue streams by enhancing the experience for users, rightsholders, and advertisers.”

Of course, other parties in the equation might not ‘win’ in this scenario. Pirates, for one, won’t be happy with automated upload filters and legitimate content creators whose content is inaccurately flagged, won’t be pleased either.

Online platforms are aware of these concerns and that may be part of the reason they’re hesitant to use it, or publicly admit that they do. If ContentCore is indeed more broadly adopted, we’ll keep a keen eye on the results, good or bad.

From: TF , for the latest news on copyright battles, piracy and more.

To protect copyright holders, YouTube regularly removes, disables, or demonetizes videos that contain allegedly infringing content.

For years, little was known about the scope of these copyright claims, but that changed two years ago when the streaming platform published its first-ever transparency report.

These reports, which were initially published as pdf files, showed that roughly 99% of all copyright claims on YouTube are handled through the Content ID system. Since many claims are automated, participation is restricted to a few thousand vetted rightsholders to limit abuse.

YouTube’s Revamped Transparency Report

The Content ID system remains dominant and the number of reported claims continues to rise. YouTube recently released the most recent data on a new dedicated website , which confirms many of the earlier trends.

The latest data show that YouTube is edging closer to a billion copyright claims received every six months, with 980 million Content ID claims in the first half of 2023. These claims were sent by less than 9,000 rightsholder representatives and are good for more than 99% of all copyright actions on the video platform.

The vast majority of claims were automated with just 0.4% submitted manually. This means that millions of daily copyright actions are handled without human review.

More Claims, More Money

These are large numbers, but they’re also presented without context. Only if we start to compare them with previous years does a clear pattern become visible. The 980 million number represents a 25% increase compared to the same period a year earlier, during which 757 million Content ID claims were processed.

One might conclude that rightsholders are frustrated by the increasing level of infringement reported on YouTube. Some probably are, but the Content ID system comes with financial opportunities too.

Rather than simply making unauthorized videos unavailable, rightsholders can choose to monetize them instead. With 90% of all Content ID claims now monetized, it’s far and away the most popular option among rightsholders.

As it turns out, YouTube has found a rather effective way of monetizing copyright infringement. As of December 2022, the video platform had paid out over $9 billion to rightsholders after running ads alongside videos monetized by Content ID.

Top-Heavy

The numbers reported above only apply to the Content ID system. While that’s responsible for nearly all copyright actions on YouTube, those who are not part of the system must use other options.

For example, non-qualifying rightsholders can use the publicly available webform, as 198,512 people did in the first half of last year. Together, these people flagged about five million problematic copyright issues.

The Copyright Match tool, which is accessible to nearly three million YouTube channels, added another 2.7 million copyright actions. The breakdown of all YouTube copyright actions shows that Content ID claims are by far the most used.

The above shows that a small number of rightsholder representatives are responsible for most YouTube copyright actions. In total, more than 310,000 rightsholders reported issues, but just 4,828 were part of the Content ID system.

These 4,828 Content ID members triggered more than 99% of all activity, averaging more than 200,000 copyright actions per rightsholder. The remaining rightsholders reported an average of 37 copyright issues in the same period.

YouTube’s transparency report lags behind a little, but it will be interesting to see if the number of claims in the second half of 2023 surpassed a billion. That data will likely follow later this year.

From: TF , for the latest news on copyright battles, piracy and more.

YouTube’s Content ID system helps rightsholders and content creators prevent copyright infringement.

Copyright holders can either remove problematic content from the video platform or monetize it instead.

Monetization is preferred in many cases and can be quite lucrative. Over the years, the Content ID platform has generated more than $9 billion in ‘claimed’ advertising revenue.

Criminal Content ID Scam

This option isn’t just utilized by legitimate owners, scammers have been making use of it too. While it’s unknown how often the system is abused, an indictment published by the Department of Justice in late 2021 showed that a U.S. company run by two men built a multi-million dollar business on this scheme.

A criminal investigation revealed that Webster Batista Fernandez and Jose Teran ran a massive YouTube Content ID scam. By falsely claiming to own the rights to more than 50,000 songs, the pair generated more than $23 million in revenue.

The scammers’ company, MediaMuv LLC., wasn’t a direct member of the Content ID program. Instead, it operated through a trusted third-party company, which had access to the platform.

Both defendants signed guilty pleas and faced long prison sentences. Teran, who was described as the “number two” of the operation, was sentenced to more than five years in prison a few weeks ago. The custodial sentence came as a disappointment to the defense, which had requested mild probation or home confinement instead.

Court Sentences “Lead” Scammer

The second defendant, Mr. Fernandez, also sought leniency from the court. His attorney argued that a 46-month prison sentence should be sufficient, noting that his client takes full responsibility for his wrongdoing.

“Mr. Fernandez concedes that he made a terrible decision to become involved in criminal conduct, which has not only affected his family and children, but has also caused financial harm to the victims involved in this case.”

In this instance, U.S. District Court Judge Douglas L. Rayes found the recommendation persuasive. Late last week, Mr. Fernandez was sentenced to exactly 46 months in prison, as suggested.

“It is the judgment of this court that the defendant is committed to the custody of the Bureau of Prisons for a term of forty-six months,” the order reads. This prison term will be followed by three years of supervised release.

Forfeited Cash and Restitution

In addition to the jail time, Mr. Fernandez will also forfeit possessions related to his crimes. His stake in over a million dollars seized by the authorities, for example, plus several pieces of real estate and cars.

The authorities described the YouTube scam operation as one of the “largest music-royalty frauds ever perpetrated” and it invites potential victims to come forward to claim their part of a restitution fee, in an amount yet to be determined.

The list of illegitimately claimed songs exceeds 75,000 titles, which once again illustrates the scope of this multi-million dollar scam.

Finally, it is worth noting that Mr. Fernandez, who supposedly initiated the scheme, received a significantly lower sentence than his partner Mr. Teran. The reason for the disparity is not revealed in available paperwork, however, and the authorities have yet to comment on the sentencing.

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The sentencing order for Mr. Fernandez can be found here (pdf)

From: TF , for the latest news on copyright battles, piracy and more.

To protect copyright holders, YouTube regularly removes, disables, or demonetizes videos that allegedly contain infringing content.

While anyone can send a DMCA notice to the platform, most copyright actions come from the Content ID system that can only be used by a select group of copyright holders.

For many years the number of claims rightsholders made on YouTube was unknown. That changed two years ago when the video platform launched its first-ever transparency report . Since then, the number of claims has steadily continued to rise.

826 Million

YouTube’s latest transparency report reveals that during the second half of last year, rightsholders claimed more than 826 million videos on YouTube. This is the highest figure since YouTube started reporting these figures and a 9% uplift over the same period last year when 759 million videos were flagged.

This increase in claims happened even though fewer copyright holders actively used the Content ID system. Entities utilizing the system dropped from 4,840 in the second half of 2021 to 4,646 during the same period last year.

Applying some basic math to these figures reveals that copyright holders who actively used Content ID claimed over 177,000 videos on average over the six-month period.

Money Machine

While rightsholders are typically unhappy when people use their content without permission, YouTube has managed to reframe this problem as an opportunity. Instead of using the Content ID system to take videos offline, there’s also an option to monetize them instead.

The concept of ‘monetizing’ piracy initially sounded a bit odd but the system has transformed into a healthy revenue stream opportunity. During the most recent reporting period, rightsholders chose to monetize over 90% of all Content ID claims.

This positive take on tackling infringement seems to be quite profitable as well. During 2022, copyright holders were paid around $1.5 billion as a direct result of their Content ID claims. Since the Content ID system was launched several years ago, $9 billion in ‘claimed’ revenue was paid out to copyright holders.

Million Dollar Abuse

The revenue opportunities also come with a downside – scammers. In one recent case, two men set up a company to find and claim unmonetized music. Through a third-party partner with access to the Content ID system, the pair generated over $24 million in revenue from YouTube by falsely claiming ownership.

The abuse didn’t go unnoticed and the repercussions were severe. In 2020, the U.S. Department of Justice indicted the duo and last week the first defendant was sentenced to more than five years in prison .

Intentional abuse schemes of this magnitude are relatively rare for Copyright ID claims. Across YouTube’s broader set of copyright tools, we see that YouTube regularly takes action against abusers.

“We take abuse of our tools seriously — we terminate tens of thousands of accounts each year that attempt to abuse our copyright tools,” the company explains.

In addition to money-driven schemes, copyright takedown abuse can also have a political or competitive angle.

“Sometimes this takes the form of political actors attempting to censor political speech or companies stifling criticism of their products or practices. Other times individuals try to use our copyright processes to bully other creators or to remove videos they see as competing for the same audience.”

99.5% Automated

Aside from intentional abuse, errors can also be triggered by automation. Nearly all Content ID claims (99.5%) are processed automatically through fingerprinting technology. In these cases, potentially-infringing content is flagged by technology with limited human oversight.

Automation saves YouTube and rightsholders a lot of resources but can also be a potential source of abuse and errors. This is one of the reasons why just a small group of verified and responsible rightsholders can join the program.

Despite this hurdle, mistakes happen. YouTube specifically highlights an example where videos of the historic landing of NASA’s Curiosity on Mars were taken down globally. A TV company claimed the public domain footage as their own.

“In Content ID the impact is multiplied due to its automated nature; one bad reference file can impact hundreds or even thousands of videos across the site.

“In one highly publicized instance, a news channel uploaded public domain footage from NASA of a Mars rover and ended up making inappropriate claims against all other news channels and creators using the same footage, even against the NASA channel itself.”

These mistakes are not caused by the automated processes themselves but are triggered when bad reference files are added to the Content ID database.

YouTube notes that on the whole, manual Content ID claims are more than twice as likely to be disputed than automated ones (0.94% vs. 0.43%). Since there are 200 times more automated claims, these still account for the bulk of all disputes.

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A copy of YouTube’s latest transparency report, covering the second half of 2022, is available here (pdf)

From: TF , for the latest news on copyright battles, piracy and more.

YouTube’s Content ID system helps rightsholders and content creators prevent copyright infringement.

Copyright holders can either remove problematic content from the video platform, or they can choose to monetize it.

Monetization is preferred in many cases and can be quite lucrative. Over the years, the Content ID platform has generated more than $9 billion in ‘claimed’ advertising revenue.

Criminal Content ID Scam

This option isn’t just utilized by legitimate owners, scammers have been making use of it too. While it’s unknown how often the system is abused, an indictment published by the Department of Justice in late 2021 showed that a U.S. company run by two men built a multi-million dollar business on this scheme.

A criminal investigation had uncovered a massive YouTube Content ID scam. By falsely claiming to own the rights to more than 50,000 songs, the pair generated more than $24 million in revenue.

The scammers’ company, MediaMuv LLC., wasn’t a direct member of the Content ID program. Instead, it operated through a trusted third-party company, which had access to the platform,

Last year, one of the defendants confessed to his part in the ‘MediaMuv’ copyright swindle by pleading guilty. Webster Batista Fernandez described it as a relatively simple scheme: find Latin American music that wasn’t yet monetized on YouTube and claim the content as their own.

The ‘number two’ of the operation, Jose Teran, signed a plea agreement this February. While he wasn’t the driving force, Teran participated in the criminal conspiracy and plead guilty to money laundering and wire fraud.

Appropriate Sentence?

This week, Teran was the first to be sentenced for his role in the operation. The defense requested a mild probation or home confinement sentence, which would allow the defendant to continue to care for his family.

“[Mr. Teran] respectfully asks that the Court exercise its discretion to sentence him in a manner that allows him to continue supporting his family while working to make the victims whole,” the attorney wrote.

The prosecution, on the other hand, argued that a multi-year prison sentence would be more appropriate, to deter Mr. Teran and other scammers from abusing the Content ID system in future.

“Teran personally obtained more than $6 million in personal profit, which he used to sustain a lavish lifestyle. In addition to the harm Mr. Teran caused and the exorbitant profits that he reaped; a significant sentence is warranted to deter future conduct,” the Government argued.

Court Issues 70-Month Prison Sentence

After reviewing these two opposing positions, U.S. District Court Judge Douglas L. Rayes sided with the Government’s take, sentencing the defendant to 70 months in prison followed by three years of probation.

In addition to the prison sentence, Mr. Teran will forfeit various properties. These include a house in Phoenix, a Tesla Model C, a BMW i8, and bank accounts containing over a million dollars.

This is the first sentencing in this criminal Content ID case. The second defendant, who is seen as the leader of the operation, is expected to be sentenced later this year.

The scale of this scam was unprecedented but abuse of YouTube’s broader set of copyright tools certainly isn’t. Google previously went on the record stating that tens of thousands of accounts are terminated each year due to dubious copyright infringement claims.

From: TF , for the latest news on copyright battles, piracy and more.

In 2021, the US Department of Justice launched a criminal proceeding against two men suspected of running a massive YouTube Content ID scam.

By falsely claiming to own the rights to more than 50,000 songs, the pair generated more than $23 million in revenue.

Last year, one of the defendants confessed to his part in the copyright swindle by pleading guilty. Webster Batista admitted it was a simple scheme: find Latin American music that wasn’t yet monetized on YouTube and claim the content as their own.

Guilty Pleas

In February of this year, the second defendant pleaded guilty. Jose Teran signed a plea agreement admitting that he was part of the conspiracy, engaging in wire fraud and money laundering.

As part of the deal, the defendant forfeited a house in Phoenix, several cars, and bank accounts totaling over a million dollars.

The Content ID scam was straightforward, Teran’s plea agreement revealed. The defendants simply identified unmonetized music and uploaded those songs to YouTube.

[W]e discovered there were recorded songs of musicians and bands on the internet that were not being monetized. We began searching and downloading these songs. Once songs were downloaded, Batista would then upload them to Y.T. as mp3 files.”

“We falsely claimed legal ownership over these songs to receive royalty payments,” Teran adds, noting that the scheme brought in millions.

To collect these payments Batista launched the company MediaMuv, which became a trusted YouTube Content ID member through a third-party company referred to by the initials A.R. As the scheme grew, more employees were hired and tasked with finding more unmonetized tracks.

Sentencing

Despite pleading guilty, both defendants face a multi-year stint in prison. Teran will be the first to be sentenced and this week, the defendant and the prosecution announced their respective positions.

According to the defense, Teran wasn’t the lead of the operation. As an aspiring musician he looked up to his co-defendant, who is portrayed as the brains behind the operation.

“While Mr. Teran admits to his involvement in the relevant criminal activity, Mr. Batista was the mastermind of the fraud scheme,” Teran’s attorney writes.

“Mr. Teran believed Mr. Batista to be a successful businessman in the music field with whom he could realize his dream of producing music, movies and music videos. Believing the co-conspirator to be a close friend, Mr. Teran was excited to be the recipient of the co-conspirator’s advice and partnership.”

This advice didn’t help Teran succeed in the music industry. Instead, it led him into a criminal conspiracy. This was clearly wrong but Teran believes that he will be a productive citizen going forward, so is asking the court for a lenient sentence.

70-Months in Prison

The U.S. Government also shared its sentencing position this week. The prosecution recognizes that Teran wasn’t the initiator of the scheme, but stresses that his role was significant.

Teran and Batista at one point had between five and eight people working for them. These employees used special software to find unmonetized music which they would then add to their catalog, to exploit YouTube’s Content ID system.

“Defendant, Jose Teran, engaged in a concerted effort—over nearly five years—to steal royalty proceeds from approximately 50,000 song titles, causing a loss of more than $23,000,000.00,” the prosecution writes.

“Teran personally obtained more than $6 million in personal profit, which he used to sustain a lavish lifestyle. In addition to the harm Mr. Teran caused and the exorbitant profits that he reaped; a significant sentence is warranted to deter future conduct.”

According to the sentencing recommendation, Teran continued to obtain fraudulent royalty payments after he was indicted. To send a clear message to others considering similar schemes, a serious prison term is warranted.

“A 70-month sentence is undoubtedly substantial but given Mr. Teran’s conduct and the need to deter future fraud, it is entirely warranted,” the Government’s sentencing memorandum concludes.

Jose Teran is scheduled to be sentenced later this month and Webster Batista will follow in August.

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A copy of the U.S. government’s sentencing memorandum is available here (pdf) and the defendant’s memorandum can be found here (pdf)

From: TF , for the latest news on copyright battles, piracy and more.

According to the original complaint filed July 2, 2020, this was a case about “copyright piracy” and how YouTube, the largest video-sharing website in the world, plays host to huge numbers of videos infringing on the rights of copyright holders.

It was a case about how YouTube facilitates and induces a “hotbed of copyright infringement” through its development and implementation of a copyright enforcement system called Content ID, a system that protects powerful copyright owners yet denies ordinary creators any “meaningful opportunity” to enforce their rights.

It was a case about how this system maximizes YouTube’s profits but bars the platform from claiming safe harbor protection under the Copyright Act. Rather than terminating repeat infringers, the system provides them with cover, the lawsuit claimed.

11th Hour Issues Prompt Weekend Filings

Starting today, these claims would’ve been heard before a jury at trial in California.

On Saturday, plaintiffs Maria Schneider, Uniglobe Entertainment, and AST Publishing moved the Court for leave to dismiss without prejudice all of AST Publishing’s claims against YouTube, Uniglobe Entertainment’s claims based on foreign works, and Maria Schneider’s claims relating to Copyright Management Information (CMI).

The plaintiffs had hoped to pursue the litigation as a class action, but on May 22, the Court denied class certification. In their motion filed Saturday, the plaintiffs say this changed their views about how best to prosecute the case; YouTube’s repositioning was on display May 25 when it withdrew its safe harbor defense.

The plaintiffs say they reached an agreement with YouTube for a stipulated dismissal of claims without prejudice , but last Friday, YouTube reversed course.

“Through the good-faith efforts of Plaintiffs, and guided by the advice of the Court, the parties came to an agreement to significantly narrow the issues remaining to be tried before the jury. Defendants should not now be allowed to renege on the agreement that they made with Plaintiffs and that was the basis of the trial plan submitted to and adopted by the Court,” their motion reads.

Jury Trial Scheduled To Begin Today

Following earlier events plus those on Friday, Saturday and finally Sunday, the claims in this lawsuit won’t be heard today, tomorrow, or any other day in the future. After almost three years of litigation, it is all over.

“Pursuant to Federal Rule of Civil Procedure 41(a)(1)(A)(ii), Plaintiffs Maria Schneider, Uniglobe Entertainment, LLC, and AST Publishing, LTD, and Defendants YouTube, LLC and Google LLC, hereby stipulate to the dismissal of the action,” the parties’ stipulation of dismissal dated Sunday reads.

“All claims that Plaintiffs raised or could have raised in this action are dismissed WITH PREJUDICE. Each Party will bear its own costs, expenses, and attorneys’ fees.”

Related documents can be found here ( 1 , 2 , 3 , pdf)

From: TF , for the latest news on copyright battles, piracy and more.

Two years ago, Spanish-born movie tycoon Carlos Vasallo sued YouTube at a Florida federal court over various piracy-related claims .

The actor and producer own the rights to the world’s largest collection of Mexican and Latin American movies, many of which are illegally shared on YouTube.

The lawsuit accused YouTube of not doing enough to stop people from uploading pirated content. Those allegations aren’t new, but the movie tycoon also said that YouTube would not allow him to join the Content ID copyright protection program unless he agreed to specific terms, including a revenue share agreement.

Vasallo refused these terms and chose to send standard DMCA notices instead. YouTube processed them, as it should, but the movie tycoon complained that this did little to stop pirates. New copies were constantly uploaded and banned users reportedly returned under new aliases.

Motions of Summary Judgment

YouTube and Google vehemently disagreed with the copyright infringement allegations and filed a motion to dismiss. This was partially successful as the Florida federal court dropped the antitrust claims, but the infringement allegations remained.

As the case progressed, both parties submitted motions for summary judgment, which were filed under seal.

The movie tycoon alleged that, because YouTube only took down reported videos and failed to use its piracy filtering technology to find and voluntarily remove similar videos, the platform is liable for direct and secondary copyright infringement.

YouTube also submitted a motion for summary judgment to establish that it does nothing wrong. According to the company, the DMCA doesn’t require platforms to proactively monitor uploads, on the contrary. Also, the movie tycoon failed to provide any evidence that YouTube was aware of ‘non reported’ infringing videos.

Both motions for summary judgment landed on the desk of Magistrate Judge Edwin Torres, who issued a detailed report and recommendations yesterday. The Judge sides with YouTube and concludes that since the movie tycoon has no triable case, the lawsuit should be closed.

Monitoring Uploads

Under the DMCA, platforms such as YouTube are required to respond to takedown requests. In this case, there is little doubt that the video platform did so. However, the movie tycoon argued that it should have used its piracy filtering technology to find similar videos and remove these as well.

This piracy detection technology, as used by the Content ID system, is separate from the DMCA takedown process. According to Vasallo, however, YouTube can and should have deployed this to remove videos that were similar to the ones he reported though DMCA notices.

In other words, the film tycoon argues that YouTube was required to voluntarily find pirated videos on its platform. Because it failed to do so, the company should be held liable for copyright infringement.

This conclusion goes too far, according to Judge Torres, who notes that courts have repeatedly rejected the theory that online platforms have “red flag knowledge” of infringing content because they use filtering or monitoring tools. In fact, this argument goes directly against the DMCA.

“As multiple rulings have put it, requiring ISPs to use their technologies to identify infringing items out of their own initiative would be a violation of the DMCA’s non-monitoring and copyright policing principles.”

Online platforms are allowed to use monitoring tools, as YouTube does with its Content-ID system. However, this doesn’t mean that this automatically makes it aware of all potential copyright infringements on its platform.

“Thus, we find that Athos’ theory that specific knowledge of non-noticed infringing clips can be ascribed to Defendants by virtue of YouTube’s copyright management tools fails as a matter of law,” Judge Torres adds.

A Brick DMCA Wall

No matter how the movie tycoon puts it, he eventually runs “headlong against a brick wall erected by the DMCA,” according to Judge Torres. The DMCA simply doesn’t require YouTube to remove content that isn’t specifically identified.

“[C]harging YouTube with the affirmative obligation of going beyond the specific URLs identified in Plaintiff’s DMCA takedown requests would in effect shift from the copyright owner to the ISP the burdens of policing and identifying infringement on its systems.”

Interestingly, the situation in Europe is different. Local law requires large platforms to do more than just process takedown notices. However, Judge Torres doesn’t mention Europe, and focuses on the law his court is required to enforce.

While copyright holders may feel that online platforms should do more, that’s not a requirement under the DMCA.

“The question before this court is not what YouTube or other ISPs should be required to do, but whether YouTube’s acts are consistent with the statutory scheme set forth by the DMCA as currently enacted.

“And while Plaintiff would like for this court to substitute the existing DMCA ‘notice and take-down’ regime for an amorphous “notice and stay-down” mandate, we cannot do this just because it makes sense from a copyright holder’s perspective,” Judge Torres adds.

No Evidence, No Case

In addition to the finding that YouTube didn’t have red flag knowledge, the Judge also finds that the evidence lacking. Nothing on the record even suggests that YouTube or its employees were aware of any non-reported infringing activity.

“Here, Athos has failed to present any tangible evidence to establish that, had YouTube used its video-detection technology as it suggests, the software would have identified, blocked, or removed any of the specific clips-in-suit in dispute in this case. This evidentiary deficit is fatal to Athos’ case.”

To top things off, Judge Torres doesn’t see any evidence that YouTube could control the infringing activity it wasn’t aware of, or that it specifically profited from the alleged infringements.

The recommendation concludes that the court should grant YouTube and Google’s motion for summary judgment, establishing that it’s protected by the DMCA’s safe harbor. At the same time, the movie tycoon’s motion for summary judgment is denied.

In closing, it’s important to note that yesterday’s report and recommendation have yet to be taken over by the court and while that often happens, there are no guarantees. In any case, YouTube will surely see this as a preemptive victory.

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A copy of the report and recommendation, issued by Florida federal court’s Magistrate Judge Edwin Torres, is available here (pdf)

From: TF , for the latest news on copyright battles, piracy and more.

A 2020 class action lawsuit filed by musician Maria Schneider accused YouTube of mass copyright infringement, failing to suspend ‘repeat infringers, and restricting access to anti-piracy tools, among other allegations.

Despite YouTube’s findings that at least one member of the putative class acted fraudulently (Pirate Monitor) to fabricate ‘evidence’ of YouTube’s alleged shortcomings in support of the lawsuit, litigation continued. More than two years later, with both sides committing significant resources to a highly complex case, both Schneider and YouTube filed motions for summary judgment.

YouTube’s Motion For Summary Judgment

Schneider’s first amended complaint alleged that YouTube and its users infringed her copyrighted musical compositions and sound recordings, and that YouTube facilitated infringement by removing copyright management information (CMI) from her copyright works, in violation of the DMCA.

YouTube’s motion for summary judgment states that Schneider licensed her content to YouTube, presented no evidence of DMCA violations, and in some cases had filed untimely claims. An order handed down by Judge James Donato on Thursday addresses each aspect in detail.

Copyright Law: Infringement Standards

For a platform like YouTube to be held liable for direct infringement, it needs to be actively involved in that infringement, not just a “passive handler” of content supplied by others.

A claim of contributory (secondary) infringement requires the plaintiff to show that direct infringement has been carried out by third parties.

A claim of vicarious infringement requires the plaintiff to prove that the defendant had the practical ability to prevent infringement, had a direct financial interest in that infringement, yet failed to mitigate it.

YouTube Wins Partial Summary Judgment

Schneider’s amended complaint alleged direct and indirect infringement for 76 copyrighted musical compositions and two sound recordings. Judge Donato says that discovery failed to produce any evidence of infringement for 27 of Schneider’s copyrighted works, and that the musician acknowledges that to be true.

“Consequently, summary judgment is granted in favor of YouTube for those 27 works,” the order reads.

YouTube’s Licensing Defense

YouTube’s main defense to Schneider’s copyright claims in other works is that it holds a “ blanket catalog license ” granted by Modern Works Music Publishing (MWP).

According to YouTube, that license covers all of Schneider’s musical compositions, so Schneider’s infringement claims cannot succeed. The big questions now center on the nature of that license and whether YouTube can rely on it to fend off liability.

In 2008, Schneider appointed her management company ArtistShare Music Publishing (AMP) as the “sole and exclusive Administrator” of her musical compositions under a Music Publishing Administration Agreement (AA). AWP subsequently assigned “all its duties” in the agreement to MWP, which was already a 50% co-owner of AMP.

In April 2014, MWP and YouTube signed a Publishing Licensing Agreement (PLA) that granted YouTube a license to compositions “owned or controlled” by MWP. As acknowledged by the Judge, the license appears broad enough to “sound the death knell” for all infringement claims filed by Schneider.

“Consequently, the salient question is whether YouTube has demonstrated as a matter of law and undisputed fact that the PLA grants it a license to all of Schneider’s works-in-suit. It has not,” Judge Donato writes.

“The PLA grants YouTube a license only to compositions ‘owned or controlled’ by MWP. Viewing the record in the light most favorable to Schneider, the question of whether MWP owned or controlled Schneider’s compositions is replete with factual disputes that preclude summary judgment.”

Describing YouTube’s arguments to the contrary as “unavailing,” Judge Donato says that the existence of “quintessential factual disputes” precludes summary judgment for YouTube on the basis of the PLA.

YouTube’s ‘Terms of Service’ Defense

YouTube’s motion for summary judgment claims that when Schneider and her agents uploaded copyrighted content to YouTube, that content became licensed under YouTube’s Terms of Service (TOS). In this respect, YouTube says it is entitled to summary judgment on 114 of Schneider’s 381 infringment claims.

The YouTube TOS grants YouTube “a worldwide, non-exclusive, royalty-free, sublicensable and transferable license to use, reproduce, distribute, prepare derivative works of, display, and perform” any content uploaded by users. The TOS also grants a non-exclusive license to YouTube users which enables them to “use, reproduce, distribute, and perform” that content “as permitted through the functionality of the Service and under these Terms of Service.”

The record shows that Schneider created a YouTube account in 2012, through which she and authorized third parties uploaded content to YouTube, including some of the works listed in the lawsuit.

Since the ‘TOS’ license is so broad, Judge Donato says that YouTube cannot be held liable for direct infringement of works covered by it. However, the license does not insulate YouTube from indirect infringement liability, including when users violate YouTube’s TOS by uploading infringing content.

As a result, YouTube wins summary judgment for direct infringement claims on 15 named works but related indirect infringement claims stand.

Time-Barred Claims

YouTube’s TOS contains a contractual one-year limitation period and a three-year limitations period under the Copyright Act. The record shows that Schneider had actual knowledge of 121 allegedly infringing videos more than a year before she filed this lawsuit against YouTube, and had actual knowledge of 73 allegedly infringing videos more than three years before.

Schneider claims that she had to accept YouTube’s TOS because without a YouTube account, she couldn’t submit any takedown notices. The record shows that YouTube accepts takedown notices via email and fax, among other methods.

Based on this and other refuted claims, Judge Donato concludes that YouTube has established that 121 infringements for which Schneider admits to having actual knowledge are barred by the one-year limitations clause in the YouTube TOS.

DMCA / CMI Removal

Section 1202(b) of the DMCA states that without approval from the copyright owner, no person is allowed to remove or alter Copyright Management Information (CMI), distribute or import for distribution CMI knowing that it has been removed or altered, or distribute, import for distribution, or publicly perform works, copies of works, or phonorecords, knowing that CMI has been removed or altered.

The statute also has a ‘scienter’ requirement, i.e intent or knowledge of wrongdoing. In this case, knowledge that removing/altering CMI will “induce, enable, facilitate, or conceal an infringement.”

YouTube says that Schneider has produced no evidence to support her claim that YouTube removed or altered CMI in her works, or acted with intent/knowledge, as required under the DMCA. The Court’s view is much more broad.

“This argument sinks on a reef of disputed facts. To start, it is not necessary for Schneider to establish that YouTube itself removed or altered her CMI to state a claim under section 1202(b).

“Schneider could still prevail under section 1202(b)(3) upon a showing that YouTube distributed her works with the knowledge that CMI had been removed, even if [YouTube] did not remove it,” Judge Donato’s order reads.

Overall, due to the existence of numerous disputed facts, summary judgment for YouTube is denied on the issue of CMI. The parties are now required to file a numbered list of Schneider’s remaining works-in-suit and corresponding infringement claims by January 12.

Judge Donato’s order can be found here (pdf)

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