The Copyright Hammer Meets the Internet

and people on the Internet in particular. Today we're going to continue that and talk about some legislation in the United States that ties into intellectual property rights and copyright and why things are so ridiculously complicated and in some cases extreme. Now. Towards the end of the last episode, I mentioned a video by Tom Scott who explains copyright in general and YouTube's solution to copyright issues in particular, and we will definitely come back to that to talk

more about it. But it is good to get into a bit more background on stuff. So early on in the days of YouTube, there was a real problem of people uploading videos that did not belong to them, which honestly is still a thing that happens today, but now there are various tools to handle it, and back then there weren't. It was a different story in the early days of YouTube. YouTube launched in two thousand five, and at the time it was not part of Google's empire.

Google would actually purchase YouTube in October of two thousand six, and in fact, it wasn't even the earliest platform that allowed users to upload videos. Video had launched in two thousand four. But YouTube had a couple of things going for it, one of them being that it was fairly

easy to embed YouTube videos onto other pages. So if you were creating like a blog and you wanted to include a video on a blog entry, you could upload the video to YouTube and then use an embettable player and put that in your blog page and folks could see it. This was a huge help if you were using a blog hosting site that otherwise wouldn't be able

to host your video. Toward the end of two thousand five, users uploaded copies of a video that Chris Parnell and Andy Samberg of Saturday Night Live had made, called Lazy Sunday. The video went viral, but NBC, which had ownership rights to the video, didn't really want folks watching it on other platforms. NBC had its own website and would much rather people go there to watch videos because that's where NBC could serve up ads and generate revenue from user visits.

But with the video popping up all over YouTube, NBC didn't have that kind of control or ability to monetize it, and so the huge and extremely well established media company reached out to YouTube to make sure that the platform would take down the videos, which YouTube did, and then other people uploaded it. YouTube would take those videos down too, and rents and repeat. Now, we know people upload videos to YouTube at a rate that's far too fast for

anyone to review them before they go up. Right like these days, it's more than a hundred hours of content that are uploaded every single minute. You literally cannot have enough people to review all the content going up on YouTube to make sure that you know it all fits standards. This is kind of stuff that shakes out over time.

So YouTube's general policy was that it would wait to be told about a video that was violating copyright by the copyright holder, and then after receiving a d m c A takedown notice, would go and take down the video. More about the d m c A in a second. Now, YouTube included language in its user interface that urged users not to upload stuff that they didn't actually own, So you weren't supposed to upload any material that was copyrighted, or rather any material that you personally did not hold

the copyright for. But users could choose to ignore this. Some users might have, you know, been pretty ignorant about the issues of copyrights, so they were doing it without really understanding. But others might have known, but they just you know, I didn't care, so they just went ahead and uploaded it anyway. I mean, NBC is a big company, right, and the video is a funny video, and YouTube is where a lot of people were gathering and you could

get a lot of views over on YouTube. You could upload it and suddenly that video goes viral and so many people are watching your YouTube channel. But here's another complication. YouTube did not introduce ads until the summer of two thousand six. So this meant that YouTube users back in two thousand five, we're not monetizing their videos because there was no way to do that, at least not through

YouTube directly. I guess you could conceivably get noticed if you were uploading interest ing or innovative videos, and you might land a gig that way, Like it could be almost like an audition or a demo reel. But there wasn't really a way to make money directly off of YouTube in those days, so it wasn't as though people were uploading an NBC owned video and then they were making money off of that. So at least there's that right.

Even though the video went viral and got a million views, there was no monetization, so the person who uploaded it wasn't like, you know, stealing money or anything like that. But as we learned in the last episode, you don't have to monetize something for it to be an example of copyright infringement. If I took a video that was owned by someone else and I duplicated it and uploaded it to YouTube, and even if I had all the ads turned off for that video, it's still copyright infringement,

even if I'm not making any money off of it. Heck, it's still copyright infringement even if no one ever sees that I uploaded the video. I don't have the permission to copy and distribute the content, period, so it doesn't matter if folks see it or not, or if I make money off of it or not. Anyway, NBC was totally within the company's legal rights as the owner of that I p to demand that YouTube take down the videos,

and YouTube complied again and again. YouTube complied because of something called the Digital Millennium Copyright Act or d m c A. And in the last episode I talked about laws that extended term limits of copyright repeatedly. Remember the original term for copyright protection was fourteen years, and then there was an option to renew for a second fourteen year term, which would give you twenty eight years of

protection total. The US government expanded this repeatedly, and today the rule is that copyright will last the lifetime of the author plus an additional seventy years, or for works that are owned by you know, corporations work for higher work. In other words, copyright lasts from the year of publication plus ninety five years, or it lasts from the date of creation plus one hundred twenty years, whichever expires first. Because keep in mind, creation and publication are two different things.

Like someone might have written a book in nineteen seventy that didn't see publication until In that case, you would look and say, all right, well, we're gonna go from the date of creation plus one hundred twenty years, because that expires first. Those are big changes, no doubt about it, to copyright law. I mean they were huge. They really push back the date of when copyrighted works are going to enter the public domain, at which point anyone can

make copies and distribute the works without penalty. But we covered that in the last episode. So let's talk about the Digital Millennium Copyright Act or d m c A. So in the nineteen nineties, the technological landscape was changing quickly, and with it, the ability to copy and distribute media was also changing. While in previous decades, publishers and creators really only had to worry about large entities potentially copying stuff on a large scale, more recent technologies began to

make this a possibility for the average person. Now, media companies were worried that a single person might, say, purchase an album on compact disc, then they might rip that disc and copy all the music files to a computer. Then they might actually use a CD drive and burnable c d s, and they might put blank CDs into that drive and then you know, put the ripped files onto the CD just thus duplicating CDs pretty easily and

relatively quickly. I mean it was fairly slow, but you could actually get drives that could hold multiple blank CDs and burn to all of them simultaneously, thus speeding up the process. Then you might go and dis review those burned c d s, or you might even sell them to folks at a you know, a rate lower than what they would pay if they went to the music store.

And that meant that now there was the potential for an average person who had access to, you know, a decent computer two, you know, commit copyright infringement on a On a slightly larger scale, entertainment companies viewed this as a potential existential threat, particularly the music industry in the early days, because really, you know, we've got to keep in mind, we're still talking about relatively small files and the grand scheme of things, and music files like raw

audio files are pretty big, but they're not as big as like a you know, uncompressed high resolution digital movie file. And here's the funny thing. We would see the music industry overreact to this in a way that had massive blowback, and yet other industries would follow very similar pathways when they faced a comparative scenario themselves a little later on. So, to paraphrase the great comedian Peter cook. We learned from

our mistakes and we can repeat them almost exactly. The d m c A itself was the U S law that was meant to bring the US in alignment with the World Intellectual Property Organization Copyright Treaty. World Intellectual Property Organization or WIPEOH is an organization that tries to align copyright across different borders. This particular treaty was really necessary because copyright law is already pretty complicated within a single

country like the US. Now, as you can imagine, it gets way more complicated when you start comparing it against other countries. So, like what happens if you have a work that was created in the United States, like the cartoons Steamboat Willie. Steamboat Willy by US law receives ninety five years of copyright protection when it's all said and done. But over in some other countries copyright protection doesn't last that long. So does that mean that Steamboat Willie would

be in the public domain over in that country? I mean, the copyright is registered in the United States, But how does that How does that work in other countries? How do other countries recognize that? Anyway? The Whiteoat, as it were, is the organization that helps get parody among countries. This particular act focused on the new challenges of the digital age. One thing that the treaty and then consequently the d m c A focused on was anti circumvention tools for

copyright protection. So they were looking at the fact that companies were trying to put in protections to prevent people from copying stuff without permission. Typically, this was in a category we would call DRM, or digital rights management. In case you're not familiar with DRM, it's typically some sort of protective measure in place that restricts or limits the ability of a consumer to make a copy of a

piece of digital media. There are a lot of different ways the companies have created DRM, and some of them are truly awful. Let's talk about Sony for a second, because this one was a doozy. In the mid two thousand's, Sony was the target of some pretty massive criticism because the company had implemented copy protection measures on compact discs

under the Sony BMG music label. And if you were to take one of those compact discs and you were to put it into the optical drive of a computer, because by the way computers back then, most of them had optical drives. Well anyway, the boot sequence once the disc went into the drive would initiate an installation of two pieces of software that were meant to act as DRM.

But what these pieces of software did was they altered your computers operating system so that it wouldn't let you copy the c D bam take that would be music pirate except um oh. The programs also turned out it could facilitate malware that could create backdoor access to your computer, giving hackers potentially the remote control to your PC. Whoop see daisy. They also were tracking lots of activity. They were essentially looking to see what you were listening to

and how frequently you listened to it. It was a big breach of privacy. So how many c d s actually had this kind of DRM on it. It was somewhere north of twenty million c ds. And the programs that the CD installed on your machine were really hard to identify and hard to remove, which made it much much worse. And also the programs appeared to have some code that was lifted from other software, which means ironically that the copy protection software was itself infringing on someone

else's copyright. Sony would end up getting sued in several class action lawsuits and eventually backtracked on its approach to copy protection in two thousand and seven. But yeah, that was a particularly egregious approach to DRM. Not all DRM schemes were harmful to this degree, but all of them did represent problems. See, while fair use isn't always easy to establish, as I mentioned in the last episode, fair

use is still a thing. You still can make fair use out of copyrighted material, but if companies put limitations on how you can access or copy works, the ner ability to make fair use of a copyrighted work is impacted. You technically have the right to do something, but you don't have any way to actually do it. When Congress was drafting the d m c A, they acknowledged that this was a problem, and they did it anyway. This meant that even if your use of copyrighted work was

fair use. So let's say that you took uh some music, you took some copyrighted music, and you did a critique where you were explaining the structure of the song. You were criticizing the use of music and lyrics like it was a legit academic approach to treating the music but you had to use the original work itself. Let's say that it also meant you had to circumvent copy protection

on that digital work to do it. Well, the the use was fair, right, it falls under fair use, but you would still get in trouble for actually circumventing the copy protection. This is kind of like saying, hey, I got this stuff. It's behind this locked door over here. You are totally free to use that stuff. There's only one problem. The only way to get to the stuff is if you commit breaking and entering, which by the way, is a crime. But you're still free to use the

stuff as long as you can get to it. But if you get to it, it shows that you've broken the law. So have fun. Now you might be able to tell I am not a big fan of this part of the d m c A, or most copy protection schemes for that matter. I find that a lot of copy protection ends up causing more harm to legitimate

customers and consumers than it does to discourage piracy. If anything, copy protection often encourages people to use piracy because part of piracy typically means stripping away d r M, and it may be that someone wants a copy of you know, a piece of media that doesn't have DRM on it, not because they just want to free copy or that they want to distribute it or anything that they might

just want it because there's no hassle there. They don't have to deal with the problems of dr M. There are other issues about copyright that DRM totally interferes with. One is that you do have the right to make

backups for your own personal use. If you have an album, like an old vinyl record album, and you wanted to back that up to cassette tape back in the day, you totally could do that as long as as long as it was for your personal use, so that way, if something were to happen, like you were to you know, the the record was to be damaged or destroyed in

some way, you would have a backup. That's fine. You were allowed to make those things, but DRM made it harder or sometimes impossible to do that, So again it was a protection that was infringing upon the rights of the user. Another important part of d M c A is a section that guarantees safe harbor to service providers, which was originally can it or to be things like

I s p S Internet service providers. This provision makes it clear that an I s P is not at fault for the stuff that people on that I s P are actually doing. So, in other words, if I'm logging onto the Internet via earth Link and then I'm pirating I don't know all of Poison's greatest hits, earth Link isn't liable for the crime that I am committing. The Safe Harbor had its own provisions in that the

provider would have to be unaware of my activity. So in other words, if they knew about it, they should stop it, but if they don't know about it, they're not at fault. And also they have to have a copyright policy in place. They are also supposed to have a representative that's sort of a point of contact for media companies to to reach in case of an issue

of copyright infringement that happens across that network. So the I s P would react if notified that I was up to no good, and as long as it did that, then safe Harbor applies. This would later be extended to web platforms like YouTube. More on YouTube later in this episode.

There were some other provisions that helped layout exceptions and such for special cases, like when someone needs to do computer maintenance, and so they might need to make copies of software in the process, so that way during the maintenance, if if they had to wipe a computer, they could reinstall software. Those sort of exceptions were put into the law. There's also a section in the d m c A about boat holes as in ships, as in vessels, and I am not kidding. Title five of the d m

c A is the Vessel Hull Design Protection Act. And you might say, what the heck is this just you know, pork that's been added onto an act. Was where we're big boats getting all up on Congress. It actually was because at that point, boat hole designs were not covered under copyright law. They were considered part of the form and function of boats, so they couldn't they couldn't qualify for copyright. However, designers wanted a way to protect their

designs from just being copied without their permission. So this was kind of a way of building in some protection. Now, when we come back, I'll talk about some instances in which companies went a little bit ham when they went after people who seemed to be in flagrant violation of copyright laws, and how a few different websites truly wreaked havoc and change the way companies viewed the protection of

intellectual property forever. But first let's take a quick break. Okay, so the d M c A was really becoming a thing because of the technology of c ds and computers that could rip music tracks off of c ds. That was really the big going concern in the mid nineties. That was more of a of a thing than digital files were in general. But by the late nineties we saw something that would make copying CDs seem tame by comparison. We saw the rise of peer to peer file sharing

networks and later of torrents. Now, first let's clear up the fact that peer to peer networks and infect torrents aren't necessarily a bad thing. They could be used for all sorts of legitimate purposes. I'll do a quick breakdown of what peer to peer networks are and how they work. And it helps if we start with the standard sort of networks that we think of when we're talking about

the Internet. So when you use, say, um, a web browser, and you're using your web browser to access a web page, what's kind of happening on the back end is that your computer sends a request up through your internet service provider. That request goes through routers which direct the request to the proper web server that's hosting the web page you

want to visit. The web server response to that request and sends back the respective web page data to your web browser, which then displays it as a web page. So you can kind of think of this system as being made up of clients, which would be your computer, or, more appropriately, in this example, your web browser and servers. These are the computers that actually host the data that you get to see on your computer now and appear

to peer network. Every computer that's part of that network is an equal or a peer to every other computer on that network. Each computer provides data and resources to the network. Computer is connected to this network can easily share the data they have stored on them with all the other computers on that same network. And typically to use a peer to peer network, you would download and install some software that lets you connect to the network itself.

Usually you can designate a specific folder on your computer as the place where you both download and share files, which keeps the rest of your computer sequestered from the peer to peer network, so you're not just sharing everything peer to peer networks can be used for tons of stuff, from harnessing the computational resources of a large group of computers in order to tackle you know, tough computer problems all the way to distributing software quickly through the network.

But the thing that the entertainment industry in general and the music industry in particular was focusing on was how it could facilitate piracy. In the late nineties, we saw the rise of products like Napster and Khaza and lime wire and many many others. Napster was the pioneer in this space. It was a peer to peer networking software

and people were using it largely to pirate music. People would rip songs from c d s and convert the audio files into compressed formats like MP three because raw audio files were just so big and broadband speeds were not super advanced back in the mid nineties. So then these compressed files they would store on a shared drive, they would PLoP onto the peer to peer networks, and

then they would start building out their own collections. They would offer up the stuff they had and they would add to their collections from you know, other computers that were on the network. These services allowed people to search out rare bootlegs and other recordings that you couldn't just buy, like stuff that wasn't available commercially. However, it also allowed people to download tons of music that you could, in theory purchase, but you know, you just opted to download

them for free, so people pirated music like crazy. This was also an era where malware was running rampant because a lot of people could upload or share malware on their computers that posed as if it were say a music five l or a software package for like a game or something. So this was also a buyer beware, or rather pirate beware era where there was a chance that that you know, the song you were about to download was in fact, you know, a virus or some

other form of malware. Now, some people went so wild, so crazy, they went hug wild in fact, over downloading music that places like colleges and universities began to ban access to Napster simply because the Internet traffic from all the downloading was clogging things up. So this wasn't because colleges and universities were necessarily being contacted by you know,

big record labels or anything. It was more like, hey, no one can send an email because everyone over at five cap of five is downloading the new Britney Spears album. So they started to shut down access to it. Napster lawn in nine, but by two thousand it had become the target of numerous lawsuits, with various acts like Metallica and music labels and music label industry organizations like the

r I double A all going after the service. The argument was that the service was overwhelmingly being used as a way to pirate music on a large scale, and it was a pretty big scale. Napster had something like eighty million users at one point. Napster took cases all the way up to the U. S. Court of Appeals

for the Ninth Circuit. They kept appealing the judgments and they were trying to argue that the underlying service wasn't tied directly to music piracy, and the court agreed that there were valid and legal ways to use Napster, that the way Napster distributed information on its own wasn't necessarily illegal. However, the vast majority of traffic across Napster was illegal, so the court order that Napster developed a system to curtail

the rampant piracy and Napster really couldn't do that. The problem was such a big one the company just didn't have the means to tackle it, So Napster shut down in two thousand one. Now you could argue that if a company is told, hey, you got to get a handle on this, and the company says, well, we gotta shut down because we can't get a handle on it,

that there was a legitimate problem. That doesn't take away from the fact that the underlying technology that made Napster work has nothing, you know, inherently to do with piracy. It can be used for that, but it's not the No, that's not the purpose of the tech. But it's kind of hard to argue against the practical results of the

use of that technology. And lots of other services similar to Napster popped up like they essentially became really popular after Napster went away, so piracy was still going like gangbusters. Perhaps one of the biggest reason was that, you know, there was such a problem with piracy was that it was legitimately difficult for music lovers to find and purchase digital music online. There weren't really any viable alternatives to

just stealing it. I mean, some companies were offering up limited access to their catalogs through their own digital storefronts, but not very many people were offering up digital downloads for purchase. It was not easy to find or buy stuff when Apple launched iTunes in two thousand one. At that time, iTunes was just a way to rip music tracks from c d s and have a digital collection of music on your Apple computer or your iPod or whatever.

But you could not purchase digital songs through iTunes at all when it launched. It wasn't until two thousand three that the iTunes music store actually came online, so in the absence of a legitimate way to purchase music, folks turned to illegal means to get it. Now, does this mean that if there had been legal ways to buy music easily, that piracy wouldn't have been a problem at all.

Probably not. I'm sure that there had been plenty of people who would still want to try and just get stuff for free rather than pay for it, But I bet that piracy wouldn't have been as large of a problem as it was. The music industry would after numerous cases of people who had downloaded songs, often coupling their lawsuits with demands for enormous sums and damages. The goals seemed to be not to recapture lost revenue, but to scare the ever love and heck out of would be pirates.

The lawsuits were making examples of people and the message was you do not want this to happen to you. You see what it's doing to this person, so you better not steal any music bucko. So, for example, the Recording Industry Association of America the r I double A, they sued more were than eighteen thousand individuals in the mid two thousand's for illegally sharing music, and in some cases they sawt truly astronomical damages in that in that endeavor.

So in one case, the r I Double A sought one point five million dollars and damages against a woman that the organization said had downloaded and distributed more than seventeen hundred songs. Now the lawsuit only included twenty four songs in it, and they were asking for damages of one and a half million dollars. This was just one case. By the way, the woman lost that case. She appealed it, she refused to take a settlement out of court, and

she lost the case multiple times. UM, I actually don't know what the current status is of that case, because the last I had heard, she had planned on declaring bankruptcy, which would get her out of the need to to pay. The amount that was being asked for at that point was more than two thousand dollars. There were thousands of these types of cases, and most of them were settled out of court. They didn't actually go to trial. But it was a really effective intimidation tactic, and it was

one that was based largely on faulty logic. So what do I mean by that, Well, the way the entertainment industry, and it's not just the music labels, the the film industry and television industry would do the same thing. The way they would figure out, you know, how much how much damage is they would ask for was essentially based on the idea that really doesn't hold water when you look into it, and that idea is that each pirated

copy of a piece of media represents a lost sale. So, in other words, the argument is that if people had not stolen things, then those same people would have gone and bought a legitimate copy. So in other words, every download, every illegal download, represents a lost sale and lost revenue. But that's just not necessarily true. It's possible that someone might download a piece of media just out of curiosity alone,

and they have no real desire to own it. That kind of person would perhaps never have bought a copy of the media at all. They would have just gone without. And because we're talking about digital files here, you're not looking at the physical loss of a product. It's not like going into a store and shoplifting, you know, c d s or something. If you did that, while the store, you know, would be out those c d s, it wouldn't be able to sell any that those specific CDs

because they would just have been stolen. Digital files, however, those are things you just copy. You can make an infinite number of copies of digital files, or at least, you know, effectively infinite. Obviously you're limited by however much storage space you have, but you get the idea. There's no scarcity to digital files. So it's a different matter. Even the US Government Accountability Office found that the formulas that the entertainment industry were using when they were trying

to make claims of damages just were not supportable. So it's not that piracy has no effect on sales. It definitely has some effect on sales. But it's more that you can't quantify what that effect on sales is. And if you can't quantify it, then you can't really assign a value to losses because it's impossible to say what the losses were. But for several years in the two

thousands that didn't matter. The r I, double A and other organizations tried to crack them on piracy hard, and the industry as a whole earned a pretty ugly reputation as a result. The courts often found in the favor of industry, but it meant that, like everyone was looking at these companies and saying, what the heck are you doing. You're going after, you know, regular people and demanding these

astronomical damages. What's really interesting to me is that the solution for piracy wasn't really in these gratuitous lawsuits and damages. People were still pirrating stuff, it's just that you know they were doing so running the risk of being one of the examples that would be brought up in a court case. And the solution wasn't even in working with online stores like iTunes, though that did change things quite

a bit. The solution was really the method of delivery gradually shifting from downloads to streaming, and this was facilitated by the rise of the smartphone and the improvement of wireless technologies. Why would you pirate music when practically every song you have ever heard is available on some streaming platform.

Lots of them are even ad supported and otherwise free to use, so you don't even have to pay a subscription to them, so you can listen to these songs whenever you like, as long as you have an Internet connection. That is what helped pull back music piracy, and the fact that the access to the content suddenly became way easier and there was no reason to run the risk

of being an example. But the improvements in broadband connectivity would bring with it the chance for people to download not just music, but also stuff like TV shows and movies and video games. These groups didn't have to worry as much in the early days. I mean, video games kind of did, but they were starting to get so sophisticated that the you know, the cutting edge video games of the time were so big most people just didn't have the band whip to download them in a reasonable

amount of time, so they weren't really considerations. However, once broadband started catching up that changed. Now, the music industry had already gone through this whole process, and you would think that these other industries would have looked at that and said, all right, well, what worked, what didn't work, and will follow best practices, But really they mostly doubled down on going the same route that the music industry

did with pretty similar results. So it's hard to feel much sympathy for these multibillion dollar media companies versus the individuals who made downloaded a copy of X Men origins Wolverine without permission. Companies began lobbying US Congress to once again create more legislation that would impose harsher penalties on people illegally downloading content, and more importantly, on ways to

prevent sites that were facilitating these kinds of downloads. The Pirate Bay, a site that specialized in serving as sort of a database or almost like a Yellow Pages of torrent files of various types of media, was constantly in the news at this time, and the global nature of the Internet meant that sites like the Pirate Bay, which was founded in Sweden, which last I checked, is not in the United States. It meant that they were beyond

the jurisdiction of the US. So you have these big US based media companies that really wanted to have a way to shut down this foreign service, and there just weren't many options. It wasn't like they could target a YouTube that's based in the United States and make the man's you know. They could try and target a Swedish company, but that company is saying like, ha ha, you have

no power here, be gone with you. Moreover, the Pirate Bay was just one example, and now the possibility of companies in different parts of the world allowing for the mass piracy of various types of media was once again seen as an existential threat. You could make a pretty convincing argument that the history of modern media is a series of the industry reacting to something as an existential threat, because that's kind of what we see here in the

United States. What we saw is a consequence of this was the proposal of two different but very similar pieces of legislation, one in the House of Representatives and one in the U S. Senate. There was the Stop Online Piracy Act or SOPA, that was the Senate one, and there was the Protect I p Act or PIPPA, which

was the House of Representatives one. Both of those were being written around, and the intended purpose of these proposed acts was to act as protection for I P holders in the United States from the nefarious doings of overseas entities. But the solutions were pretty drastic, including the possibility that you know, these companies could force governments or or demand for governments to order US based I s p s

to cut off all access to certain sites. In other words, to tell US based I s p s, hey don't allow any U r l s from these domains to be accessible in the United States. So, in other words, there would be parts of the Internet that US citizens would not be allowed to access, at least not legally and not without the aid of something like a VPN

located in another country. Critics pointed out that this approach would have massive consequences with regard to free speech, and beyond that, applying the rules would be difficult and uneven. People envisioned a scenario in which U S I s p s would have to block access to an entire domain because of potentially what one blogger posted on a

single blog that was located on that domain. So this was like a nuclear option that would potentially affect far more you know, innocent people than it would for those who were actually perpetrating the alleged crimes. A large collection of web based companies help protests in early two thousand twelve, using a blackout on their web pages to inform visitors of the issue and essentially going dark, and the results

were dramatic. Politicians who had previously expressed support for either PIPPA or SOPA abruptly reversed course, including people who had sponsored the bills in the first place. So the two pieces of legislation were withdrawn from being voted upon the floor. Now, the reason they were withdrawn is because if Congress had held a vote and the legislation was voted down, that

would be pretty much the end of that. But by removing the bills from consideration, the authors of the bills and their supporters would have some time to work on it further and potentially reintroduce the bill at a later date once the political climate changed. So far that hasn't happened. But when we come back, I'll spend some time talking a little bit more about copyright and YouTube's specific approach to handling copyright claims. But first, let's take another quick

break Okay, let's talk about YouTube and copyright now. As I mentioned, YouTube has a long history with copyright issues, and for a while, the general approach was that company would claim a copyright ownership of some or all of the content that was in a YouTube video, and they would send a d m C A takedown notice to YouTube,

which then would typically take down the video in question. Uh, the user or owner of the channel would get a copyright strike against them, and if you've got three strikes, the channel would get wiped, the account would be deleted, all those videos would be removed. Now, ideally, each d m C A claim would go through a thorough review by some other party to make sure that the claim was legitimate. You have to verify that the claimant actually

holds the rights to the i P in question. You have to determine if the use of any material falls under the category of fair use, which means that the inclusion of that material in the video would need to be proven to be you know, legitimate. And YouTube built in systems that would let channel owners dispute d m C A takedown charges, essentially pushing the matter into arbitration that would then ultimately have to go to court. So

quick overview. Let's say I put up a video. Let's say I've got some material in there in the video that belongs to someone else, and I get a d m C A takedown notice, so YouTube has taken the video down. I get a copyright strike against me. I decide to dispute this YouTube sends that back to the copyright holder, who if they don't respond, then YouTube just lifts it and the video comes back online. But if they do respond, then essentially the next step is you

go to court over it. So it wasn't like a super awesome thing for the individual because court cases are incredibly expensive um and there were some court cases around videos containing copyrighted material that helped establish the law around it. So, for example, in two thousand eight, a U. S. Court ruled that copyright holders couldn't just send a d m C a takedown notice unless they first determined that the use of the material in the video in question fell

under a fair use scenario. Because if it is fair use, the copyright holder is not supposed to send out the takedown notice. The key raise there is they're not supposed to. It doesn't mean that they necessarily held back flash forward though, Google acquired YouTube in two thousand and six, and then by two thousand seven started to develop a system that acted sort of like a digital finger printing system for companies.

So it's a system that could scan videos that have been uploaded to YouTube and look for patterns in those videos that matched a database of copyrighted material owned by you know, each individual large media company. So if there were a match, well, then you would get a notification saying, hey, you've got this possible case of someone making use of your copyrighted material without your permission, and then you could

flag the video. Following that the owner of the I P and question so big media company, in other words, would have a few options. They could choose to block the video completely, which just made it unreachable, or they could choose to add advertisements to the video, or to co opt existing advertisements and claim the revenue generated by the ads for itself. So in other words, yeah, you can keep your video up. We're going to collect any money that's generated from the fact that you have this

video there. This was originally called video identification, but later became known as Content i D. In two thousand eleven, the system went into effect in earnest, and the result was that content owners could get revenue from videos that included their content, or they could order the videos to be totally removed, but that seemed to be slightly less prevalent. It does still happen occasionally, but more often than not people just say no, I'm just happy to take the money.

This approach automates stuff. It removes any human review process, which also means that no one is really checking to make sure that the flagged video is actually infringing upon copyright or that it's not a case of fair use. So it falls on the channel owner to dispute claims

and to push for reviews. Meanwhile, if you do get hit with enough flags, you might find your whole channel shut down and once again, want to refer to Tom Scott's great video on this subject, titled YouTube's Copyright System Isn't Broken, The World's is. Scott gives a personal example of a time when the content I D system totally failed. So Scott is an independent creator with an impressive following

of more than three point eight million subscribers. He uploaded a video to YouTube and a TV company in Thailand took that video incorporated it into a Thai television show without asking Scott's permission, and then subsequently uploaded that television show episode to YouTube, which is pretty brazen, but what happened next was even more so. The company then flagged Scott's original video. See content idea as a tool that's

really only available to big, established media companies. The average person does not have access to content i D. So this TV company used its access to content i D to flag Scott's original video. In other words, the video he had made uploaded, and then they subsequently stole and used. Scott says it took quite a lot of time to sort it all out and to establish that the video was in fact his original work, and then it was

the Tie company that was in violation of copyright, not Scott. Now, content i D is a tool that can be revoked, so if a company abuses it, there's a chance that YouTube will remove the company's access to content i D. Tom Scott himself says in that video that he doesn't know if that Tie company still has access to content i D or not, but it is a pretty clear case where he was very much the one who was being the victim of abuse that this Tie company was

abusing the content i D tool in the worst way. That being said, Scott also points out that content i D works around issues that otherwise would have pretty bleak results. So because of content i D, a video can stay up even if it is making what would otherwise be considered illegal use of someone else's i P. It's just that this someone else would be the one to benefit and monetize that video. So for the vast majority of YouTube users this isn't really that big of a deal

because most of them aren't YouTube partners. Most of them are not monetizing videos in the first place. For creators who are monetizing their videos, such as big time let's play gamers or movie critics or you know, things like that, it's still very much an issue it if the work that they're doing does fall under fair use, they have to appeal to try and get flagged videos unflagged and

to return monetization to their own channels. Another point that Scott makes is that YouTube's policies can change, and they have changed, often without any real notice, and the consequences of those changes can result in massive headaches for channel owners and for individual users. So, in other words, just because YouTube's policies are one way today doesn't mean you can count on them being that same way tomorrow. That could change the whole game. Let's start wrapping all this up.

The history of copyright in the United States has largely been one of big consolidated media companies using their substantial influence to extend copyright protections and restrict the parameters of fair use, and to seek out harsher punishments for people and companies that violate the law. It appears as though we've at least reached a point where companies are no longer going to push for longer copyright terms. So it really does seem that Steamboat Willie will in fact finally

enter public domain in twenty twenty four. Why aren't we seeing yet another push to extend copyright terms. It's largely because public sentiment is very much against it, and ultimately politicians do have to depend upon people voting for them to stay in power. Doesn't really matter how much money lobbyists drop on them. Ultimately they do have to worry about that, and the lobbies have largely thrown in the

towel on trying to extend copyright terms. Their money is better spent at trying to create legislation that makes it harder for people to share content without permission. That's not necessarily a great thing either. Those laws frequently have unintended consequences and they place unfair restrictions on legal rights. But you know it's it is shifting the issue a little bit, so we're not likely to see copyright terms get extended

again anytime soon. It's just incredibly unpopular. There are actual movements to try and reduce the term limits on copyrights rather than to extend them, to kind of roll the back a bit and to allow things to enter into public domain earlier. Tom Scott and his video also talks about the move to try and get small claims case courts that would handle things like copyright issues so that the average person would have a better chance of being able to pursue a claim of fair use and not

have it be financial burden to do so. Um, that's the thing. Even if you are in the right, even if your use of copyrighted material falls under fair use, you still may have to go to court in order to actually prove that, and it can be so expensive that it could ruin you financially. And yeah, you might be legally in the right, and you might get the judgment you wanted, but you'd still have to pay all that money to do it. You know, you're not going to get a reward for it other than like, oh yeah,

it turns out you didn't break the law. That's not much of a reward, right, Like, you would still owe all that money for the court cases. And that's the

real crime here. I was figuratively speaking. It's the real crime here because it disincentivizes people from pursuing their actual rights because the system favors these big corporations that have the money to burn, and you know, worst case scenario for most of them, they'll settle out of court rather than pursue an expensive legal case that they might not win. But that's that's small potatoes compared to what it is for the individual. So yeah, I agree with Tom Scott.

I do agree that the world's copyright system is broken because it was designed for a world where large publishers, or way back in the day, large book printers, we're trying to carve out a place for themselves and not have the competition unfairly copy works that they had access to. And now it's being applied to individuals and it just is not a good fit. So that's this full discussion about copyright, fair use and the related issues around it. Clearly there's a lot more we could go into. I

didn't touch trademark law at all. That gets into more complications. Um, and there are other you know, there are other subtle things that we could really dive into, like the ethics of piracy. Uh. I think in most cases it's not ethical, But at the same time, it could get very frustrating for someone if let's say there's a region lock where you want to access to a certain type of material,

you are fully committed to purchasing it. You would buy it in a heartbeat if there were a way to do so, but because of the region lock, you don't have that opportunity. I could see people turning to piracy for that, not as a thing that's morally right. I mean, just because something exists doesn't mean you have a right to access it, but because there's no other option. Uh. I've felt that way about there's a British series I absolutely love. There is no way for me to get

it here in the United States legally. Now I have not downloaded it illegally, I have not accessed it, you know, illegally. UM. I keep looking to see if there's ever going to be a US version that I can purchase, because I'll do it in a heartbeat. But I can certainly understand why someone who likes something like that would go to those links because there are no other options. And as it turns out, if you create options for people to

get stuff legally, people get stuff legally. Uh. One of the biggest issues that feeds into piracy is just a lack of access, which is pretty easy to fix. Enough of that soap bucks, I am going to climb down in or else I might fall off. I hope you enjoyed these episodes about copyright and technology and how it's all messy, messy, messy. If you have suggestions for things I should cover in future episodes of tech Stuff, be

sure to reach out. The best way to do that is on Twitter handle for the show It's tech Stuff hs W and I'll talk to you again really soon. Y Text Stuff is an I Heart Radio production. For more podcasts from My Heart Radio, visit the I Heart Radio app, Apple Podcasts, or wherever you listen to your favorite shows.