New Media Rights joins Electronic Frontier Foundation in urging reconsideration of dangerous Garcia v Google copyright ruling

New Media Rights has joined the Electronic Frontier Foundation, Public Knowledge, and others in filing an Amicus Brief urging a federal appeals court to reconsider it's decision to order Google to take down the controversial "Innocence of Muslims" video while a copyright lawsuit is pending.

Most of our work at New Media Rights is preventative and transactional, focused on helping people avoid legal problems and lengthy court battles before they begin.  In this case, however, we've joined in filing this Amicus Brief because the recent Garcia v Google decision, if not reconsidered, will have negative consequences for free speech that will directly affect the creators and innovators we assist.

The United States Court of Appeals for the Ninth Circuit's court's decision required an online service provider, Google, to censor the historical record by removing all copies of the video. The court then added a gag order to its decision preventing Google from talking about the controversial decision for a full week.  The decision contradicted an earlier district court ruling that refused to restrain speech based on a highly debatable copyright claim.

The video in question, "Innocence of Muslims," sparked worldwide protests and debate in the fall of 2012. Actress Cindy Lee Garcia sued claiming she held a copyright in her 5-second performance the film.  Although one can understand Garcia's interest in distancing herself from the film, the cost should not involve breaking copyright law.  As it stands, the court's decision threatens to create sprawling, poorly defined copyright protection in a variety of creative contributors, altering the way that copyright law protects contributions to film and video productions.

New Media Rights joined the Electronic Frontier Foundation,  American Civil Liberties Union, Public Knowledge, the Center for Democracy and Technology, the American Library Association, the Association of College and Research Libraries, and the Association of Research Libraries in this brief.

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Fortress of Attitude defeats false bots takedown on YouTube

Last January, we brought you the story of Fortress of Attitude who had their song “PS Gay Car” removed after it was misflagged for violating “TOU #4 Section H”, that is using Bots or other automated means to inflate a YouTube video’s view count. The good news is that video and its view have been fully restored only four months after the last appeal to YouTube! Granted we’re not sure which of our many appeals resulted in the video being restored since Fortress of Attitude never received any notice from YouTube that the video had been restored.

The bad news is that this is the only successful appeal we’ve seen in over a year of covering this issue. And even worse, despite the February 14th blog post from YouTube that seemed to indicate YouTube would start adjusting view counts of videos accused of bots inflation instead of removing videos; we’ve seen a recent influx of unsuccessfully appealed wrongful bots takedowns.

As much as we want to celebrate Fortress of Attitude’s victory, the reality is the bots problem on YouTube is still very real.

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April Newsletter: NMR victories for consumer transparency and broadband access for students at the FCC!

Spring started with a bang here at New Media Rights. At the FCC our work set the stage for making consumer complaint data more accessible and ensuring that more students across the United States have high speed internet access then ever before at schools and libraries. We brought the fight against content bullying to South by South West Interactive. All the while helping creators, entrepreneurs and internet users with complicated legal questions. While we catch our breath, here's some details on what we've been up to.

We shaped and passed an FCC Consumer Advisory Committee recommendation on improving broadband access in U.S. schools and libraries

On Friday, March 28, the FCC’s Consumer Advisory Committee approved an important recommendation to modernize and improve the way we bring high-speed broadband to classrooms and libraries around the county.  New Media Rights Executive Director Art Neill, and Legal Interns Marko Radisavljevic and Kyle Welch were directly involved in the research, drafting, and proposal of this recommendation. The other co-chair of the Broadband Working Group is Mia Martinez of the National Asian American Coalition, pictured below with Art Neill and her NAAC colleague Ruriko Sato on March 28 after passage of the E-rate recommendation.



New Media Rights conducted an extensive review of the FCC’s E-rate program, including analyzing a vast amount of input on the program from a variety of stakeholders. Based on this research, New Media Rights’ staff and interns helped lead the efforts to draft a recommendation encouraging the FCC to modernize and improve the 18 year old E-rate program for the 21st century.  The recommendations include both general priorities as well as specific process priorities that will improve the E-rate program. 

You can learn more about our work on E-rate here.

Consumer Complaint Data and E-rate recommendations receive praise from FCC Chairman Wheeler and Special Counsel Gigi Sohn, and help shape FCC priorities

At the March 28th CAC meeting, Chairman Wheeler and his Special Counsel for External Affairs Gigi Sohn specifically praised the recent Consumer Complaint Data transparency and E-rate recommendations. Wheeler and Sohn specifically identified consumer complaint process modernization and transparency, as well as E-rate reform as top priorities.

In addition U.S. Senators Udall and Nelson sent a letter to the FCC requesting improved transparency of the over 400,000 consumer complaints the FCC handles every year.  The letter directly and heavily cited the CAC recommendation that New Media Rights shaped.

NMR joins USA Doing Archives for a conversation on copyright and the laws surrounding digital archives.
Ever wondered how copyright and other laws affect the work that archivists do? Here at NMR we’ve helped our fair share of archivists; so we were happy to participate in Doing Archives first Hang out On Air at New England Archivists Spring 2014 meeting.  You can find the full recording and additional information on the services we provide to archivists, academics or scholars here.

NMR at SXSW!

We’re back from our first trip to SXSW!  Remix artist Jonathan McIntosh and Attorney/Producer Shaun Spalding (both Advisory Board members of New Media Rights) joined NMR Staff Attorney Teri Karobonik for an insightful panel on content bullying and copyright basics for online creators.
We also had a chance to meet up with our friends from Creative Commons, the Digital Media Law Project, The Electronic Frontier Foundation and many more.  And of course no trip to Austin would be complete without some absolutely delicious BBQ.

Special thanks to the Rising Arts Leaders Program of The San Diego Foundation in partnership with The James Irvine Foundation for providing New Media Rights staff attorney, Teri Karobonik, with a grant to help defray the costs of traveling to SXSW.
 

Events

April 8th AMA with NMR
Ever wanted to ask us about what we do at NMR? Or why Art founded NMR? Or maybe you had a general question about copyright law you wanted to ask. Well now you can, ask us anything! On April 8th from  11am- 12:30PM we’ll be doing an AMA on reddit. Please note that the one thing we can’t answer as part of the AMA are specific requests for legal advice. Those should still be directed to our contact form http://newmediarights.org/about_us/contact_us

NMR goes to Tucson
New Media Rights staff attorney, Teri Karobonik, heads to Tucson Arizona for a number of talks on April 17th. First up at 9:30AM she’ll be talking to the Old Pueblo Knitters Guild about Copyright Law and Creative Commons as it relates to knitting. She’ll also be speaking at Tucson’s new Maker House at 6pm about copyright for makers. If you're in the Old Pueblo stop by and say hi!

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Please remember New Media Rights is an independently funded nonprofit program and relies on the support of individuals like you to provide free and low cost legal services to internet users and creators.

We accomplish a great deal on a modest budget, so any donation makes a huge impact for us.

Donate now to support legal services and advocacy for internet users and creators by clicking here.

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Thanks again for being part of the New Media Rights community. Keep an eye out as our future battles and work on behalf of internet users and independent creators continues.

All the best,

The New Media Rights team

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New Media Rights helps shape FCC Consumer Advisory Committee recommendation on improving broadband access in U.S. schools and libraries

On Friday, March 28, the FCC’s Consumer Advisory Committee approved an important recommendation to modernize and improve the way we bring high-speed broadband to classrooms and libraries around the county.  New Media Rights Executive Director Art Neill, and Legal Interns Marko Radisavljevic and Kyle Welch were directly involved in the research, drafting, and proposal of this recommendation.

New Media Rights’ Executive Director Art Neill is a member of the CAC, and co-chair of the Broadband Working Group. The other co-chair of the Broadband Working Group is Mia Martinez of the National Asian American Coalition, pictured here with Art Neill and her NAAC colleague Ruriko Sato on March 28 after passage of the E-rate recommendation.  You can watch the March 28 meeting here.

At minute 79, Chairman Wheeler and his Special Counsel Gigi Sohn visit the Consumer Advisory Committee and during their remarks explicitly commend both this E-rate recommendation and a previous recommendation New Media Rights helped shape on improving Consumer Complaint Data reporting. They both indicated transparency in consumer complaint data has become a top priority for the FCC.

New Media Rights conducted an extensive review of the FCC’s E-rate program, including analyzing a vast amount of input on the program from a variety of stakeholders. Based on this research, New Media Rights’ staff and interns helped lead the efforts to draft a recommendation encouraging the FCC to modernize and improve the 18 year old E-rate program for the 21st century.  The recommendations include both general priorities as well as specific process priorities that will improve the E-rate program.  The recommendations (see attached PDF) address the following topics.

  • Prioritizing the use of E-rate funds for high speed broadband
  • Making the use of E-rate program funds fair and equitable
  • Considering the unique needs of rural and small institutions
  • Ensuring E-rate funds assist in the purchase of essential equipment to spread that connectivity throughout the schools and libraries and beyond
  • Improving data collection and monitoring of the E-rate program to improve the efficiency of allocation of E-rate funds, identify needs, and promote greater transparency about the services and network speeds in schools and libraries. 
  • Implementing an electronic filing system.
  • Enhancing predictability of funding
  • Simplifying the application and disbursement processes
  • Allowing multi-year applications

New Media Rights is looking forward to continuing to be a vital part of the discussion surrounding policies that affect access to broadband for Americans at the FCC and its Consumer Advisory Committee.

Special thanks goes to California Western School of Law 2L Marko Radisavljevic, and 3L Kyle Welch, two of New Media Rights' legal interns who worked extensively on this recommendation.

Marko Radisavljevic 

Kyle Welch

Since New Media Rights is an independently funded program at California Western, it continues to rely on grants and individual donations to fund its work. New Media Rights is running a special holiday fundraising campaign.  To learn more about how you can support New Media Rights’ mission and to help them reach their year end goal, click here.

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NMR joins USA Doing Archives' discussion of copyright and the law surrounding digital archive projects

Ever wondered how copyright and other laws affect the work that archivists do? Here at NMR we’ve helped our fair share of archivists; so we were happy to participate in Doing Archives first Hang out On Air at New England Archivists Spring 2014 meeting.  We joined Christopher Felker, creator of Doing Archives as well as Henrik Mondrup from Aalborg University Copenhagen and Heather Nodler a law student at Georgetown and former archivist for an informative discussion on the current state of archives and the law.  Missed the live hangout? No worries, you can find a recording of the entire thing above.

Also if you an archivist, academic or scholar; New Media Rights is here to help with your legal questions. For more information, check out our “Services We Provide Page” we made especially for you!

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We’re off to SXSW!

Photo AttributionNoncommercialNo Derivative Works Some rights reserved by alexdecarvalho

Thanks to your votes, New Media Rights is heading to SXSW interactive in Austin, Texas. On Tuesday March 11th at 12:30PM in the Driskill Hotel Ballroom we’ll be presenting our panel “Stand Up To Content Bullies, Know Your Copy Rights”.

At New Media Rights we know copyright laws are complicated, and they're often the reason why your videos, mobile apps, and other content may get taken down. "Fair use" is complicated, but it's often the reason you can get your content back up. Our panel will teach real-world best practices to use the law, YouTube's rules, and practical steps to fight back against content bullies.

Not only will we provide SXSW audiences with great best practices developed from our many years helping video creators but pop culture hacker Jonathan McIntosh will join us as our special guest creator.  Johnathan is a pop-culture hacker and remix artist that we helped get his video Buffy vs Edward: Twilight Remixed put back up on YouTube after it was taken down by content bullies. McIntosh’s pro-feminist video is a metaphor for the ongoing battle between two opposing visions of gender roles in the 21st century. Over the past three years, this video has been used in law school programs, media studies courses and gender studies curricula across the world.  Who better to talk about standing up to content bullies than a highly skilled content creator who has stood up to content bullies and actually won!

If you’re at SXSW please come by to hear what should be an amazing panel (if you’re not at SXSW you can follow our session on twitter using #nmr).

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Services New Media Rights offers for Scholars & Researchers

Photo:LicenseAttributionShare Alike by Denn

So you’re a scholar or a researcher. You use the internet and other new technologies to research, create, archive, share and discuss your work with your peers, students and the general public. You might be an archivist, professor, grad student or even a citizen scholar.  No matter what you study and no matter where your work is based (be it a large university, high school classroom or even your own home office) you rely on technology to do you work. But even though new technologies have the potential to revolutionize your work, they often come with new challenges far beyond simply mastering the technology.

Maybe you want to teach your students, the next generation of scholars, how to use these new technologies and techniques to enhance their work. You may wonder if there is any content online you could tell them to use without the need to pay a fee, hire a lawyer, or fear a copyright takedown. Content they would only need to attribute and say where they got it from; now that would make life so much easier.  And it would be even better if someone had resources that could help you learn about this type of content so you could teach your students to use that content properly.

You might use new technologies to remix or critique pop culture or your specific area of study. You think your work is completely new, different and most importantly legal, but the DMCA takedown notice in your in-box seems to say otherwise. And you’re not entirely sure what to do with that takedown notice.

Maybe you’re frustrated that your research is stuck behind a pay wall or in a pricey textbook few people will read. Maybe you want to find a way to share your work more openly but you need help figuring out how to get your university or publisher on board. You know it’s been done before but you’re just not sure how to get there.

You might work in an archive and get to explore all sorts of works that have shaped the humanity. While you delight in getting new materials and making those materials accessible your worry that researchers who reuse some of these works might get into trouble and you want to know what you can do to help prevent that.

Or maybe your work focuses on improving the transparency of institutions or clarifying the historical record.  You try to track down the facts but maybe the state or federal government won’t turn over documents. And sometimes you worry, too. What if by secretly recording that interview, I did something illegal? Did I maybe go too far with that last article? Should I really have used that video clip?

And then there is the question that’s on just about ever scholars mind, “How do I fund my work?” Finding funding can turn into a full time job. You may have been approached by a company or foundation that wants to sponsor your work, but that doesn’t want to just hand you a check and let you run with it. The funding could greatly expand the scope of what you want to do, but you don’t know what kind of limits the funder wants to place on your work.

That’s why New Media Rights provides free and low cost legal services. If you’re a scholar we can help with the following issues.

  • How to legally reuse or remix Copyright protected work (fair use, parody, mash-ups, remixes, etc).
  • Licensing content as well as counseling on openly licensed content.
  • Respond to a DMCA takedown notice or cease and desist letters.
  • Respond to other unfair content takedowns, access limitations, and account terminations.
  • Help writing DMCA takedown notices and enforcement of copyrighted works.
  • Review and writing of contracts, such as fiscal sponsorship agreements.
  • Pre-Publication review for copyright, trademark and fair use.
  • First Amendment Free Speech Issues.
  • FOIA and Public Records Act requests.
  • Legal advice regarding covert recording.
  • Avoiding and responding to defamation.
  • Providing written and video educational materials on Creative Commons, fair use and other legal topics relevant to reusing and distributing content.

Now that you know how New Media Rights can help you, please feel free to fill in our contact form here.

Event: Artist-Gallery Agreements and Copyright Law

  New Media Rights and California Lawyers for the Arts present
Artist-Gallery Agreements and Copyright Law
A workshop on legal aspects of the visual arts
w/ Jennifer Nelson, Esq., Art Neill, Esq., and Teri Karobonick, Esq.
 
Wednesday, February 26, 2014 at 6 PM
At the San Diego Foundation Offices, Suite 200, Raymond Room
2508 Historic Decatur Road, San Diego, 92106
 

 New Media Rights and California Lawyers for the Arts present a workshop for visual artists to gain an understanding of artist-gallery agreement basics and a broad overview of copyright law.

Presenter Jennifer Nelson will cover California state laws governing consignment sales, as well as how to negotiate standard consignment agreements covering agency, warranties, transportation, insurance, pricing, gallery commissions, promotion, and return of art.

Presenters Art Neill and Teri Karobonik from New Media Rights will provide an overview of copyright issues facing visual artists, including joint-authored work, work-made-for-hire, derivative works, copyright infringement, fair use, public domain, and registration of copyrigh

Reception and Registration: 5:30 pm to 6pm
Workshop: 6 pm to 7:30 pm

Prices:
CLA Member  - $10.00 (USD)/$15 at the door
CLA Student or Senior Member - $5.00 (USD)/ $10 at the door
General Public - $20.00 (USD)- $25 at the door


Refreshments provided by the San Diego Foundation.

 

 

 

 

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The curious case of the YouTube Bots- updated 2-19-14

UPDATE: 2-19-14

It could be entirely coincidental but on February 14th the official YouTube Creators blog had a post about bots inflation on YouTube. You can read the whole blog here. The blog certainly isn’t a complete response to our blog nor does it address the many complex layers of the Bots problem but it does recognize two important things.

First it recognizes the importance of likes and comments to the YouTube community and acknowledges that these “interactions both represent and inform how creators connect with their audience.” This was one of the biggest complaints we heard from creators. Not just that their videos were taken down but that they permanently lost the likes, insightful comments and best wishes from their fans. Even when creators reposted their videos they were unable to recover this part of their community.

Second, the blog may suggest that YouTube may focus on auditing view counts as opposed to taking videos down. The blog states that:

As part of our long-standing effort to keep YouTube authentic and full of meaningful interactions, we’ve begun periodically auditing the views a video has received. While in the past we would scan views for spam immediately after they occurred, starting today we will periodically validate the video’s view count, removing fraudulent views as new evidence comes to light. We don’t expect this approach to affect more than a minuscule fraction of videos on YouTube, but we believe it’s crucial to improving the accuracy of view counts and maintaining the trust of our fans and creators.

Although YouTube has been auditing views for some time now, there has been an inconsistent policy of removing some videos while simply auditing views of other videos. If YouTube’s new plan is to audit views instead of taking videos down; we support that plan. Almost every single creator who we talked to wanted a way to remove fraudulent views from their accounts. These creators are part of the YouTube community and believe in the importance of accurate view counts.  However, these creators don’t want to be punished when someone out of their control uses Bots on their account. By reducing view counts instead of taking down videos, the potential use of Bots attacks for censorship purposes greatly decreases, which was one of our biggest concerns.

That said if the recent blog doesn’t match reality we want to hear about it.  After all, it could be a complete coincidence that this blog was released shortly after our own blog. It is still entirely plausible that nothing is actually changing and YouTube intends to continue to ignore problematic Bots related takedowns. That said, if you video was wrongfully taken down for bots inflation AFTER February 14, 2014 we want to hear about it.

Photo AttributionShare Alike Some rights reserved by Santos "Grim Santo" Gonzalez

YouTube has a problem with Bots. Dozens of YouTube creators have recently been accused by YouTube of artificially inflating their views count by using Bots.  Although Bots inflation is a very real problem on YouTube, none of these users or their agents used Bots. And when these users appealed their wrongful takedowns they were greeted with an auto reply email that blamed them as opposed to offering any meaningful evidence of Bots or any ways the creators could protect themselves from having others use Bots to inflate the views on their accounts.

This isn’t a new story.  Last January, we brought you the story of Fortress of Attitude who had their song “PS Gay Car” removed after it was misflagged for violating “TOU #4 Section H”, that is using Bots or other automated means to inflate a YouTube video’s view count. Despite outreach to YouTube, that case was never resolved and the good folks at Fortress of Attitude ended up reposting their video. When we went public with the incident, we thought it was an isolated one.  But then we started hearing the stories of other YouTubers that made us realize Fortress of Attitude’s case is not unique after all.

YouTube Bots Redux

It started last August; a musician came to us with a strange issue. One of her videos had been removed from YouTube with no notice or email from YouTube whatsoever. There were no strikes on her account nor was there any apparent way to appeal the takedown. Soon after, in September, the same thing happened to 3 more musicians who had videos on YouTube. Around the same time we received several YouTube Bots related takedowns, just like Fortress of Attitude’s case.  And we wondered if these two types of takedowns we’re related.

Almost all of the video creators had exhausted the available appeals process by the time they got to us, and we encouraged those who had not to appeal, but none were successful.  Since we concerned about the increasing number of unexplainable takedowns, and lack of the ability to appeal, we approached YouTube with our concerns.

When we reached out to YouTube we were actually quite optimistic. We came prepared with a detailed Google Doc spreadsheet with every relevant piece of information related to the problem we could think of. We included real names; user names; the name of the affected video; a link to the affected video; if the user received notice; if the dispute resolution process was available; how the takedown was reported in the users account; any unique facts about the artist takedown and the approximate number of views the video received.  We also asked YouTube if they needed any additional information to look into the problem but YouTube said they did not.

We thought there had to be a simple solution that we had just missed.  There was… well, sort of. YouTube was able to tell us that all of the videos we brought to them had been taken down because they apparently violated Section H of their Terms of Use. They also offered us a link to a new appeals form. They encouraged all of the YouTube creators we brought to them to appeal. They did not, however, address why some users had received notice and why others had not or provide any additional details about the takedowns.

After we received that appeals form we helped many of the individuals who contacted us with their appeals. All of those appeals, including some we didn’t help with, had one thing in common.  None of the appeals resulted in any of the videos being restored, even when direct evidence was available showing that the individual hadn’t used Bots.

We continued our conversation with YouTube to see if maybe there was something wrong with the content of the appeals. Maybe there was specific evidence that they needed? Maybe we had missed a procedural step?  Unfortunately YouTube was unable to provide us with any details on what kind of evidence they were looking for in an appeal, or even if appeals were ever granted. The only thing they were able to provide us with were the links to every public explanatory page about their policy.   In case you’re curious here are those links:

https://support.google.com/youtube/answer/3399767
https://support.google.com/youtube/answer/3470104?hl=en
http://youtubecreator.blogspot.in/2013/11/thinking-about-buying-views.html
http://youtubecreator.blogspot.com/2012/01/views-and-3rd-party-services.html
https://www.youtube.com/watch?v=_Bt3-WsHfB0

Recently, YouTube stopped replying to our emails about the Bots issue.  As of February 5, 2014 none of the videos that we’ve tried to get restored have been restored.  We’re unaware of any Bots videos that have been restored after using the appeals process.


The Face Of Bots

So who exactly are these individuals whose videos have been taken down?

The inspirational song writer


Ryan John contacted us in November when his video, Faith in You was taken down. The Faith in You video was based on watching one of his friends struggle to recover from open heart surgery.  After receiving over seven thousand views the videos view count paused and was taken down a few days later. Numerous heart health charities had reached out to Ryan about the video and Ryan worried that seeing YouTube’s notification that “This video has been removed because its content violated YouTube’s Terms of service” would scare them off from the video.  Ryan was especially confused since he didn’t market his channel other than sharing videos on Twitter and Facebook. When Ryan appealed, his appeal was rejected and he has since re-uploaded the video. He has also blogged about his experience here.

The law student podcaster

Anthony Iliakostas is a third year law student at New York Law School. He has hosted a sports law podcast since 2011 called Law and Batting Order. Since the podcasts inception he has received about 20,000 views total on YouTube. On Sunday, November 10th, he uploaded the second installment of #TheHuddle, the roundtable discussion portion of his show. The first installment garnered 8,000 views and Anthony was pleased that the second installment received 5,000 views in the first two days. He was less pleased on the third day when YouTube removed his second installment for a violation of Section H, but not his first installment. YouTube had accused him of using Bots on the less successful of the two videos, which seemed particularly absurd.  When Anthony tried to appeal, his email and formal appeals were rejected.

The international pop star and the $5 takedown

Rajeev Nandakumaran, known to his fans as Jeevo, contacted us in October when his video, Jump (Champagne Problems) was taken down.  His video had a spike in views which he initially tied to his recent international touring. However, when he sent out a letter to his fans asking if anyone had done anything that might have caused his video taken down an 18 year old fan from Sri Lanka reached out and mentioned that he had in fact paid for views on YouTube through a site called Fivver. On Fivver you can pay individuals to do a variety of things for five dollars, including buying views on YouTube. To buy views on Fivver a user only needs $5.00 and the publicly available video URL. The sad thing in this case was the fan genuinely thought he was helping one of his favorite artists not putting that artists YouTube account in jeopardy.   Rajeeve’s video has not been restored even after repeated follow-up emails with YouTube specifically about his case.

Problems

YouTube is of course a private website, and it has a great deal of freedom to decide how to run its site.  There’s no doubt that Bots are a difficult problem to deal with for the service.  However, there are a few key problems that YouTube needs to fix in its response to Bots.


Some users are not receiving any actual notice as to why their videos are being taken down

One of the reasons it took us several months for this problem to materialize was that many of the initial cases had received no email notifications from YouTube at all.  Many of those creators in the first cases just logged into their YouTube accounts one day and discovered that their video had been removed.  Worse still was that in the dashboard itself, next to the video, creators saw a variety of incorrect reasons in parentheses about why the video was taken down, everything from “copyright”, to “community guidelines” , to “video copied”. Worse still, in these cases the usual appeals button was conspicuously absent. Not only did users have no idea why their videos were taken down, they also had no way to fix it.

The appeals process is not user friendly and presumes the user is guilty

Even for those creators who did receive notice from YouTube as to why their video had been taken down, the appeals process was not user friendly. The first issue is the appeal form itself. It just isn’t written for everyday users. We’d like to take a moment to point out a few of the more problematic statements within the form.

Please treat this as a form of discovery and provide thorough responses. Err on the side of abundance when answering these questions, the more information the better. We cannot help you to restore your account unless we have all of your data related to this matter.

This is the introduction to the form. First off, we’re a bit dismayed over the use of the word “discovery”. In this context discovery is a legal term that describes the point in litigation where two parties exchange information as specified by law and as moderated by the court.  YouTube’s appeals process is not bound by the law in any way. But more importantly, we think the call to “err on the side of abundance” is a particularly absurd instruction. The maximum character count is 1,000 characters, or about 180 words. It’s very difficult to completely answer many of the questions asked in 180 words. We understand that YouTube receives lots of these requests every day, but if the appeals process is to be meaningful YouTube needs to allow its users enough room to “Err on the side of abundance”.

The form also presumes that the creator is guilty of Bots inflation. After asking if the creator used Bots, even if the user answers “no”, the form follows up with the following required question. “From whom did you purchase traffic?” Leaving the user to state once again that they did not use Bots.  This is just one of 4 questions that demand an answer even after the user denies their usage of Bots. While as lawyers we respect that this is how you would write a good interrogatory for discovery, it’s just not a good way to ask questions of a lay person outside of a litigation context.
Despite our attempts to assist many of the individuals whose innocence we personally verified by helping them craft their appeal, every single appeal that we’ve observed is followed by the same exact form email rejecting the appeal.  It is unclear if anyone has ever succeeded in a Bots inflation appeal. If it is YouTube’s policy to never overturn a Bots takedown, then users should be informed of this and not have their time wasted.


The expectation YouTube has for users are unfair and unrealistic


One of the most troubling parts of this whole process is that YouTube blames its users for the problem without giving them the tools to prevent it. Here is part of the email a user receives when their appeal is rejected.


Ultimately, you are responsible for knowing and abiding by our terms – this means understanding the nature of the traffic on your channel and making sure you are in compliance with our terms. Ignorance of bad traffic or other actions taken on your behalf may lead to your account being removed from YouTube.

In our conversations with YouTube we asked multiple times if there was any way for a YouTube creator to block or delete potentially fraudulent views on their channel.  We were never pointed to any tool that would help a creator to do that nor were we able to find any tool on YouTube in our own search.  Even if a YouTube creator knows where the Bots came from (whether from a misguided fan or someone intentionally trying to censor their account through Bots inflation, as was the case with a few of the users we assisted) there is no way to stop the views and no way to reduce the views to account for any Bots.  If the user doesn’t know where the Bots came from or if there was a glitch in YouTube’s system, the user is still held responsible for events entirely out of their control. And remember, getting a video removed for Bots is incredibly easy to do. Even if the penalties weren’t so high (multiple Section H Bots claims can mean account termination) it seems absurd to hold users accountable for actions outside of their control.


The potential for Bots being used as a tool for censorship


For a long time, the DMCA takedown notice has been used as a censorship tool. However, the DMCA counternotice process is far more functional on YouTube than the Bots appeals process, and at least in theory, there can be real life legal consequences for abusing the DMCA. But the thing about Bots attacks is they are very difficult to track and link to one individual. This makes them a very powerful tool for those wanting to get a certain video taken down for a limited period of time.  While we haven’t seen a case like this yet but, for instance, it would be relatively easy for a politician who wanted to bury a YouTube attack ad, to pay someone on Fivver or another service to inflate the views in order to get the video taken down.  No approval or access to a YouTube account is required to inflate views, only the publicly available URL.
YouTube is doing nothing to help


When we went to YouTube we were very optimistic that YouTube would be willing to help, or at very least acknowledge the problem. However none of YouTube’s public facing materials or the YouTube employees we spoke to acknowledge the potential for Bots abuse, or the need for improvement of the appeals process. As a result there are no tools that users can use to protect themselves from these attacks.


What happened to the public square?


As frustrating as this is for the users who have had their videos unfairly removed from YouTube, the reality is that YouTube has no obligation whatsoever to correct the problem without pressure from its users. They are a private company and can generally run the site however they wish. 
“But what about my first amendment rights!?!?” you might ask.  Well, the first amendment only applies to actions taken by the government to restrict speech.  Since YouTube is not the government they can actually they allow or disallow any content they see fit.


This actually illustrates one of the questions of the digital age. In the real world there are certain public spaces (public parks, state universities, sidewalks etc) where you can voice your opinion pretty much freely. However, most major content platforms on the internet are run by private companies. Because private companies are not subject to the first amendment; as much as we think of sites like YouTube, Twitter and Facebook as a “public” space for sharing they technically aren’t. They are private spaces subject to the rules of whatever company runs them.  As life moves increasingly online, we must ask if there is a digital replacement to those public sidewalks or parks for free speech.


So Can We Do Anything?!?

YouTube is a private company and they can legally continue doing all of the activities outlined in this article even though they are extremely problematic. So what’s a YouTuber to do? The only way to get YouTube to change their practices is to get user and YouTube creators to demand a more transparent process. To demand that the appeals process be written for you, and not a bunch of lawyers. To demand that if YouTube makes users responsible for monitoring their own traffic that YouTube creates tools to help you block bad traffic.   While YouTube doesn’t have to listen, it’s simply good business to keep your customers happy, especially when your profits are based on the creative works of your users.

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