I'm not saying that's how it should be.
I'm saying that's how it is.
So. How do we fix it?
What's up, world? It's your boy Tom—
Oh, come on!
This video is sponsored by CuriosityStream,
and by this: my new Nebula streaming series
that you can watch for free when you join.
More on that later.
Sellout!
What's up world? It's your boy, TomReacts.
Let's see what this prat has to say.
A few disclaimers before we start:
While this video has been proofed and fact-checked by a team of legal experts,
I am not a lawyer, and this is not a substitute for legal advice.
Yeah, I can tell that, mate.
I'm also talking a lot about YouTube and Google, companies that I benefit from enormously.
Google even sponsored an entire series on this channel last year.
Shill!
I'm friends with a few YouTube employees.
'Course you are.
So, while all the words here are my own, YouTube don't even know I'm making this,
you should know that if you're one of the outliers
who's been screwed over by YouTube's copyright system…
Yeah, you will probably have a different view of parts of this.
Although I hope you'll still agree with my conclusion.
With all that said, enjoy the show.
Get on with it!
Not you.
I realise saying "YouTube's Copyright System Isn't Broken"
is a controversial claim to make,
when every week there seems to be a new headline
about how a YouTube creator is being screwed over
by false copyright claims, or mistaken identity, or deliberate copyright abuse.
I'm not saying that the system is perfect.
It's far from perfect, and I'll talk about that too.
But I don't think it's fundamentally broken.
In May 2019, a YouTube Minecraft player called Oli
had hundreds of his videos claimed by music label Warner Chappell
using YouTube's Content ID system.
His post about it made a lot of people righteously angry.
He'd got permission to use a track from an independent composer as his intro music,
and now a big corporation was claiming every video and taking all his revenue!
Popular websites went so far as to claim that Oli was the victim of outright theft,
since 25% of his revenues were directed to Warner Chappell.
But the follow-up wasn't seen by nearly as many people:
those claims were entirely legitimate.
Yes, Oli got permission to use that music from its composer,
but that composer had sampled another piece of music
that was owned by Warner Chappell, without a license.
So the permission that Oli got was entirely useless.
Warner Chappell was right, and Oli was wrong.
So, here's how that should have worked
in the world that current copyright law was designed for:
First, everyone involved would have been part of a large company with a legal team.
Lawyers from the music label would have contacted the lawyers for the video company,
and they would have said, "What's going on? You didn't license that."
And the video company lawyers would have gone:
Oh, I'm sorry. I had no idea.
We bought that license in good faith from a third party.
We should both talk to them.
At which point the third company's lawyers would get a very worrying phone call.
[screams]
And all the mess would almost certainly have been settled out of court.
Maybe by backroom dealings,
maybe by teams of lawyers sending formal letters to each other.
That was the world that copyright law was designed for.
Because individuals couldn't make things
that were viewed by millions without corporate support,
you needed a publisher, or a broadcaster, or a huge production company,
and… those companies had lawyers.
The world has moved on, and copyright law hasn't.
And the result is that, when something like this happens
in the world of relatively-tiny, independent online creators,
we have to work around what the law is meant to do.
[Canon in D by Pachelbel]
Music has two main copyrights.
First, there's the copyright on the composition itself:
all the parts of a work that can be written down,
so, lyrics and notes.
And then, second, there's a copyright on each individual recorded performance.
So I can sit here, and I can play Pachelbel's Canon in D
without having to pay any licensing fees,
because Pachelbel died in 1706 and his work is now in the public domain,
in the pool of works where the copyright has expired.
His music is now free for anyone to use without payment and without credit.
Which is brilliant!
But if I'm not playing it,
I'm actually using a modern recording of it…
[music continues]
…then it doesn't matter that the composition is in the public domain:
[music stops]
someone has added their own hard work playing it,
along with the work of a production team making it sound good,
and that recording is under a separate copyright
that needs licensing to use in a video like this.
Songwriter after songwriter after songwriter has used Pachelbel's Canon in D
to the extent that it's now a cliché,
and no-one's had to pay Pachelbel or his family a penny in centuries,
but that doesn't mean any of the modern songs based on it are in the public domain.
There is new work there.
And I can't use those modern songs in this video to demonstrate that,
unless I'm actually criticising them.
On that point…
♫♫
Maroon 5's Memories is an infuriating composition
that uses the start of the melody of Canon in D but never resolves it,
which means it has the same stuck-in-your-head effect as the jiun-gle from—
which means it has the same stuck-in-your-head effect
as the jingle from Alfred Bester's The Demolished Man,
and I hate it.
♫♫
Coolio's C U When U Get There was a lukewarm lead single
from a third album that obviously did far better with a naive world audience
than it ever did with its actual target market.
There's a reason it went platinum in New Zealand.
♫♫
And The Farm's All Together Now is…
actually a pretty good song
despite the incongruity between its subject matter and its style,
but it's been completely destroyed
by repetitive and unnecessary cover versions and football chants.
Criticism and review! There we go.
That is the sort of thing that's considered "fair use" under US law,
and "fair dealing" under the much more strict UK law,
but I had to censor the album art of those songs,
because I wasn't criticising and reviewing the art,
and the art is covered under separate copyright.
In 2009, Andy Baio, then one of the directors of Kickstarter,
released an 8-bit chiptune version of the best-selling jazz album of all time,
Miles Davis' Kind of Blue.
He got a license from the music publisher. He called it Kind of Bloop.
It was all above board.
But he settled out of court for more than $30,000 with Jay Maisel,
the photographer who took the iconic photograph on the original album cover.
Kind of Bloop's album art was a pixelated version of that album cover.
Baio thought it was fair use.
Maisel said it wasn't, and Maisel had lawyers.
To quote Baio:
"The fact that I settled is not an admission of guilt.
"This was the least expensive option available."
Because copyright lawyers and copyright lawsuits are very, very expensive.
Expensive enough that that isn't the album cover!
That is a stock photo that looks kind-of like the album cover,
because I am taking no risks.
I don't know if that pixel art was fair use.
If someone took your greatest work, ran it through a pixelation filter, and then sold it,
I don't think it's entirely unreasonable to think you've been ripped off.
The line of 'fair use' is very fuzzy,
and both sides can have very strong and conflicting arguments.
That's the job of the courts to solve.
If both sides can afford it.
And there wasn't even a music video involved there!
That is a whole separate problem.
There is something called a 'compulsory license'
for selling and performing just music,
but if you want to publish a video to go with someone else's song,
even if it's just a video of you performing it on a ukelele in your bedroom,
that requires a separate synchronisation license,
and the copyright holder has an absolute right to say no to that.
YouTube has always had a lot of people uploading cover songs,
singing and performing the music that they love,
and hoping they'll get noticed.
By talent scouts, not by lawyers.
A lot of modern pop singers got their start on YouTube,
but the legal baseline for doing that outside the YouTube bubble,
if you just filmed yourself and put it up somewhere else online…
Well, the baseline is that you'd have to pay for an expensive license,
or you get sued, and you lose.
Or more likely, you get a cease-and-desist letter,
you pay a bit of money to make the lawyers go away,
and you drop out of the music industry, disillusioned.
And you can't get away with it by changing the lyrics.
A parody is probably not "fair use" unless you're directly criticising the original,
and even then, it's questionable.
'Weird' Al Yankovic, the most popular parody artist in history,
licenses the songs that he parodies.
There are lots of lengthy law journal articles asking whether he needs to,
but… it's better safe than sorry,
and yeah, I wouldn't fancy his chances if it actually went to court.
The worst-case scenario of doing an unlicensed song parody on YouTube
is that you get sued, and you lose.
Because under current copyright law, you are in the wrong.
I'm not saying that's how it should be.
I'm saying that's how it is.
And most people won't have the money to even start to defend a case like that.
Now, YouTube has a workaround for this, Content ID, I'll get to that later.
And if you're not actually using the original piece,
if you're just… reminding the viewer of it,
just getting close enough in your parody,
then you're probably in the clear.
YouTube creators who change just the lyrics of songs to do parodies
often say, "Oh, but it's transformative! It's fair use, it's for criticism!
"They can't claim copyright over it! They're making a false…
[hits piano]
They're making a false claim!" And…
Look, if you're taking a Katy Perry song and changing the words
to be about something other than criticising Katy Perry or the song itself,
it's likely not fair use.
The same way that big movie companies can't take small songwriters' work,
change the lyrics, and put the result in movies without paying and say,
"Oh, but's transformative, it's fair use. Look, we changed the lyrics."
And it may seem unfair that the law holds kids on YouTube messing around
to more or less the same legal standard as Hollywood studios.
In public opinion, there's definitely a big difference there:
People smile at small creators taking content from big companies well outside fair use,
but never the other way around.
And that's the reason that some small-time reaction YouTuber…
Hey! Hey!
can take a five-second clip from a movie and use it for a cheap punchline,
even if it's not criticism and review…
but I'm damn sure if a movie studio took a clip of a reaction channel's video
and used it in a film without permission,
there would be lawyers lining up to take the case.
Yeah, you're right. This is my content, I own it!
You hear that, Disney? Right.
Remember, tomorrow I'm reacting to the new Star Wars trailer.
Maybe there should be different treatment there.
But in current copyright law, there isn't.
If you take a photograph off a stock image site, or from some photographer's Flickr account,
and you just copy it into your blog post or your company website,
you might well get an email from a service called Pixsy.
They use automatic systems to scan the web,
detect people who've used photographs without permission,
and then they send legal letters threatening court action and demanding payment.
And legally, they are in the right.
They're using strong-arm tactics and they're in it for the money—
and in some cases, they are threatening someone
who has absolutely no idea about copyright,
and genuinely thinks that stuff on the web is free to take.
There are lots of threads online with people going,
"Agh, what's— what's happening? I didn't know, how do I make this go away?"
To which the answer is: pay up.
Photography is an art, and an expensive one,
and yeah, until we live in magical post-scarcity Star Trek space communism,
you shouldn't just be able to rip off a photographer's copyrighted work and use it.
Except, that's what the Internet does. A lot.
Heck, I used to do it.
It's gone from the Internet now, for obvious reasons,
but when I was younger, I unashamedly took images
and other stuff from the web and repurposed it,
because I knew hardly anyone would see it, even fewer people would care,
and the worst case scenario was that I'd get a cease-and-desist letter.
and if that happened, I might be able to cry 'censorship'
and get some publicity out of it.
I've grown up since then,
but there are a whole new wave of kids who have that same philosophy.
"No copyright infringement intended", they'll say.
"I own nothing, all rights to the copyright owners",
or "this is transformative under fair use",
as if just claiming that is some magic incantation that will ward off lawyers,
like waving a cross at vampires.
[with accent] I want to sue you now!
No copyright infringement intended! No copyright infringement intended!
[hisses]
András Arató, from Hungary, posed for some stock photography a few years ago.
He doesn't have rights over his face or image in any of these photos,
he signed those away as part of the photography contract.
And while there is a discussion to be had about personality rights
and the ethics of taking some random person's face and using it without context,
that's not relevant here. What is relevant is the copyright on that photo.
If you're criticising or commenting on the photo itself,
if you're judging the composition, the camerawork, or…
yes, the incredibly awkward expression
that meant he gained the nickname "Hide the Pain Harold"
and became one of the most-recognised figures in the nerdy underbelly of the Internet,
then yes, that may well be acceptable.
But if you're just using those pictures as a stock image
to make a point about anything else,
then you'd better have a license or you're exposing yourself to a lot of legal liability.
When big publications talk about the "distracted boyfriend" picture, they license it.
There is no exception, under law, for: "I just put it in my video as a quick joke!"
I licensed all those photos from a company called Shutterstock,
here's the license agreement.
Actually, I got a bundle deal of image credits from them because it was cheaper,
and I had some of those credits left over,
so please now enjoy a few inexplicable stock photos
that I also now have the legal right to use.
Anyway, the photographer who took that original "distracted boyfriend" picture
was asked how he felt about his work being used everywhere without permission.
And he said: "They're just a group of people doing it in good faith.
"We are not going to take any action, except for the extreme cases
in which this good faith doesn't exist."
That is an act of generosity on his part.
He would be entirely within his rights to hire a service like Pixsy,
let them play the bad guys, and rake in a lot of money,
and if you think that's wrong, then talk to a professional photographer.
Ask them how they earn their living, and how much their equipment costs,
and how they'd feel about it.
Now as I record this, Pixsy doesn't appear to have automated systems
hunting through YouTube videos to find unlicensed images and send out legal threats,
but… they could. Pretty easily.
Maybe those claims could be defended in court with enough money,
but in the current system, most people would be forced to fold,
and pay a license fee, and give up.
And viral-video licensing companies like Jukin Media
do already search through YouTube for unlicensed use of the video clips they own,
and while as a company they are vilified by the creator community,
they've, um… they've got a point.
Creators have the right to determine how their work is being used,
and taking someone else's copyrighted photos or videos,
and using them commercially, without permission, without criticism,
is not fair use under the law.
Even if loads of other people have already used them.
Even if you add some words on top of them. Even if you mash them up with three other things.
Are you 100% sure that you are transforming or criticising the original,
not just using it?
And are you 100% sure that a court would agree with you?
And just to repeat: I'm not saying this is how it should be.
I'm saying: this is how it is.
But that's pictures and videos. What about bits of pop culture?
At the end of 2019, Giphy, a GIF-aggregation site, briefly removed…
Actually, hold on. People will complain.
I'm pronouncing it /ɡɪf/ because Giphy, the site I'm talking about, pronounces it /ɡɪf/.
And besides, the real problem is that they're not actually GIFs,
they're short video files in other formats.
GIF is a really specific descriptor for a data format.
Short looping videos are not GIFs, but apparently now they are!
It's like how "emoji" now refers to any small image.
I'm still grumpy about all of this. Don't @ me. Anyway.
At the end of 2019, Giphy briefly removed its many, many GIFs
of The Child from The Mandalorian,
a creature designed to be so adorable that I can only assume
the design came directly from Disney's merchandising team.
Those GIFs were removed because of what Giphy described as
"confusion about certain content".
I'd guess they got a legal letter from someone at Disney,
before Disney realised what a PR disaster it would be
to stop the Internet having immediate access to Baby Yoda.
But the Guardian article about that brief takedown has a really interesting final line:
"Images in GIFs are widely understood to fall under the 'fair use' exception."
Notice how that's phrased: "Widely understood."
There has never been a court case about this. Are GIFs fair use?
I actually think that, if some company got a bee in their bonnet,
the same way they did about Napster twenty years ago,
and if they insisted on litigating all the way to court,
it is entirely possible that a judge would go,
"No, GIFs aren't a parody, they're not criticism, they're not transformative, they're not fair use.
"Giphy's entire product, the GIF economy, is based on systematic copyright infringement.
"Pay the money, shut it down."
In practice, of course, it wouldn't get that far.
Giphy would accept a cease-and-desist and take down what was complained about.
It's just easier, because remember,
they're not an individual creator or a small site.
Giphy has an enormous office in New York
with catered lunches and arcade games for more than 100 employees…
based on a business model that is arguably copyright infringement.
I am amazed that no big media corporations have looked at their money and gone…
"We can sue them for that!"
In the same way, uploading video game footage to YouTube
is "widely understood" to be okay, but that's questionable.
Maybe if it's something like Minecraft, where there's a lot of original work, it could be.
And besides, the license agreement that you accept when playing Minecraft
allows streaming and most YouTube videos.
But if it's just a video of cutscenes,
or following roughly the same sequence of events
that every player would follow,
it's a bit like putting up a video of you watching a TV show.
We've seen companies decide in the past that…
actually, they don't want videos of their games online.
It is very easy to make the argument that online streaming of games affects sales.
And the impact on sales is a key component
in determining whether something is fair use.
Sure, the games get some exposure, but exposure doesn't pay the rent.
I didn't buy Untitled Goose Game and experience the beautiful artwork
and immaculately-timed comic setpieces myself.
I skipped through a couple of videos so I could get the jokes,
and then I moved on.
I didn't buy Superliminal either.
I just watched a video of someone playing it to get how it works,
skipped forward to see how it ends, and then I got on with my life.
And I'm glad I did, the game mechanics are clever…
but the ending is unsatisfying.
Or maybe I just think that because I watched someone else play it.
And that someone else, who provided a substitute for the original product,
made money off that, either from advertising or streaming donations.
Now, video game streaming might be fair use
if you've got someone constantly criticising and reviewing the work as they play it.
Not just talking about it, or not just repeating what they're saying in the game,
or saying hi to the chat, like actively criticising.
Maybe. It would be up to a judge to decide,
and no-one wants any case like that to get to court,
because somehow we have an entire industry
based around something that is very possibly copyright infringement,
but which most video game publishers are just going along with.
Perhaps because they genuinely think it's a good thing,
or perhaps… because they've seen the backlash that happens
when horrible gamer children are suddenly denied something they think is their right.
Like our friend in the corner.
Hey, this is transformative. This is definitely fair use.
Would you do this to a Marvel movie, though?
No, mate. They'd sue me for every penny I've got.
♪ In the not-too-distant future, next Sunday A.D. ♪
In 1988, KTMA-TV in Minneapolis
aired the first episode of Mystery Science Theater 3000,
which was basically a reaction channel.
A host, along with a cast of puppet robots,
would watch a full-length movie, usually an old science fiction piece.
They'd be in silhouette, as if they were in the row of cinema seats in front of you,
constantly cracking jokes about whatever was on screen.
It's tightly written, scripted with joke after joke after joke,
although the skits that surround the movie
are often so laden with in-jokes and character shtick
that new viewers who don't know the show and the cast can be completely lost.
Like I said: it's basically a reaction channel.
Time magazine listed Mystery Science Theater as one of the 100 greatest TV shows of all time.
A Kickstarter brought it back in 2016,
and then Netflix brought it back for another couple of seasons.
Mystery Science Theater was absolutely criticism and review and absolutely transformative.
But they still licensed the movies.
Anything that wasn't in the public domain, they negotiated and paid for,
because… yeah.
Playing out someone else's entire movie, just with wisecracks over it…
probably not fair use.
And even if it was, a studio would've probably sued them at some point anyway,
and they'd have had to defend the case and spend the money to defend the case.
Now, there have been YouTube commentary channels who have defended lawsuits
where fair use and fair dealing seem clear.
H3H3, an often-controversial reaction and commentary channel,
won a very expensive lawsuit that was brought by someone they criticised.
They were very happy about the result,
and they shared that with their fans
in a way that pretty much sums up why their style…
isn't for everyone.
Good job, Hila. Good job.
[choking noises]
[screams]
The court even noted that their video was transformative
because it "responds to and transforms the video from a skit
"into fodder for caustic, moment-by-moment commentary and mockery."
The judge's decision goes into the balancing factors of fair use in depth,
but the most important bit is a little bit further down:
"Some reaction videos … intersperse short segments of another's work
"with criticism and commentary,
"while others are more akin to a group viewing session without commentary.
"Accordingly, the Court is not ruling here that all 'reaction videos' constitute fair use."
It's clear that just playing a video and laughing at it isn't fair use. It's copyright infringement.
The border of fair use is somewhere in the grey area
between lazy zero-effort reaction streamers and in-depth insightful criticism…
but it's a fuzzy border, and right now, questions about it
can only be settled on a case-by-case basis in an expensive courtroom,
because, yeah, there is one thread throughout all these examples:
under the current system, it often doesn't matter who's actually in the right.
Even if the answer to "Is it fair use?" is clear,
it's actually about whether you can afford to defend a case.
You could be 100% sure it's fair use…
but unless you're prepared to spend the time and the money to actually fight that in court,
it doesn't matter.
Which brings us to how YouTube worked around this.
Back in 2006, YouTube made an arrangement with the big music companies,
so the big industry players wouldn't sue this new platform out of existence.
YouTube developed Content ID, which scans every video uploaded
and checks it against an enormous database of copyrighted content.
If there's a match, everything works completely outside the usual copyright system.
All those worries about synchronisation licenses and publication rights,
all that law, is effectively replaced with two contracts:
one that's private between YouTube and the big media companies,
and one that's in the Terms of Service that you agree to
when you upload your bedroom-vlogger video to YouTube.
There is a public list of the music tracks that are in Content ID,
including the current policies from the music companies.
There's no list of the TV shows, or films, or other stuff that's in there.
Mostly, the copyright owners just put adverts on the video.
Sometimes, they do block it entirely, but… those policies can change at any time,
and if you do something they particularly don't like,
it doesn't make you immune from lawsuits,
or from formal takedown notices under a law called the DMCA.
They're called "copyright strikes" by YouTube.
Those are still an option for copyright owners.
It's just that with very, very few exceptions, they'll take the money from ads instead.
Content ID means that video creators,
unless they're being so malicious as to attract serious attention,
generally don't get sued and don't get DMCA takedowns.
They don't have to negotiate a synchronisation license for cover songs.
Now, some companies — music labels, mostly — are also able to manually put Content ID claims
on videos that the automated systems miss.
That is an avenue for abuse.
And so is the manual appeals process that's meant to kick in
if the automated systems have flagged something that really is fair use,
like a review, or a brief incidental snippet of a song
that was playing somewhere as you walked by.
Often, the appeals process does work…
but give a corporation an inch, and they'll take a mile.
Making decisions about fair use and copyright is meant to be handed over
to experienced, trained people who can give nuanced judgements…
but from the stories that have come out over the years,
it looks like it's mostly subcontracted out to the lowest bidder,
with enormous decision-making power given to people whose job is just to
run through the backlog of appeals as quickly as possible and make snap decisions,
knowing that very few people will actually be able to do anything about the result.
I've been a victim of that in the past:
A TV channel from Thailand took one of my videos,
played it out without permission in one of their big television shows,
and then put that entire television show into Content ID.
I got a Content ID hit on my original video from them,
and that took a long time to sort out.
And I never found out, in the end,
whether that channel kept their access to Content ID or not,
because, yes, companies that abuse it should have it taken away from them.
But, of course, if YouTube does that,
then they fall back to the legal default position:
DMCA takedowns or lawsuits,
either against the creators or against YouTube itself.
There are absolutely flaws in Content ID. I am not saying it's perfect.
There are hundreds of cases that we could talk about
where the system didn't work,
and thousands more that never got enough publicity
for the world to actually notice them.
There are so many edge cases,
like the people who got copyright claims on white noise, just on the sound of static,
because the system wasn't originally built to deal with white noise.
Or the people who do in-depth music theory analysis of songs,
very likely fair use, but still getting manual Content ID claims.
But I don't think Content ID is broken.
It's a reasonable stopgap. It works almost all the time.
That video of a couple's first dance at a wedding, uploaded by the father of the bride:
No, copyright law doesn't allow him to upload that to YouTube,
not unless he's got a synchronisation license.
But Content ID just deals with it, and the video stays up.
That excited fan video from the kid in the front row at a concert:
No, not permitted under copyright law.
Content ID deals with it.
The teenager making a video compiling all the romantic subtext
between their two favourite characters in a show:
No, not allowed. It's not criticism or review.
But Content ID deals with it, and the video stays up.
Without Content ID, those videos would be taken down by DMCA copyright strikes,
and if someone protested, the next step is a lawsuit.
Maybe for the uploader, but more likely,
the same would happen as all those years ago:
the big media companies would go to YouTube and say:
"You're allowing this to happen. You're making money off this.
"We're going to sue you out of existence."
Sadly, it's not about what's fair, or what's just.
It's about the arrangement that YouTube and the big media companies have come to.
It's not ideal, but under copyright law,
current copyright law at least, I don't think there's a better option.
And I don't want to sound like the grumpy old man
complaining about the kids these days,
but yes, when I started on YouTube, 2006, there was no monetisation option.
Creators could not earn money on-platform at all.
And that was fine, because it was a miracle that someone was offering to do
the incredibly expensive and difficult job of hosting video for free!
One of the reasons there aren't any serious competitors to YouTube
is that it is ruinously expensive to run a video hosting site:
you either have to be a subscription service or one of the world's largest advertising firms.
A lot of folks, particularly younger people,
who have only joined YouTube in the last couple of years
have a different baseline for this:
They think that they have "the right" to upload long compilations of their favourite videos
with maybe a few words spoken between each clip,
and make loads of money from it,
that that is something that they are entitled to do,
and that any copyright owners who complain are censoring them and putting in false claims…
Yeah. Okay, yes. I'm the grumpy old man complaining about the kids.
But, under the current copyright system, those kids are legally in the wrong.
Maybe not morally. That's a different question.
But legally, they are in the wrong.
There is an enormous distance
between what the law says and what the world's actually doing,
and that is where most of this tension comes from.
So. How do we fix it?
We need three things.
We need to update copyright law,
we need a good small-claims court for copyright,
and we need to shorten how long copyright lasts.
So, first: updating the law.
This is a big goal, but the entirety of international copyright law
needs to be rewritten to reflect what's fair in today's world.
Everyone will have a different opinion of what that is.
I'm actually fairly conservative on it.
I'm not convinced that we should massively widen the definition of fair use,
because every bit of freedom you give to individual creators
also makes it easier for big companies to rip them off.
But I'm not going to say where the line should be drawn.
It is a job for consultation and conversation,
where everyone is at the table, not just the big publishers.
And if completely rewriting international law seems unlikely,
then it's still possible to push for changes.
In 1990, one article by one judge swayed opinion among the US legal community,
and helped change the most important factor of fair use
from whether it was commercial to whether it was transformative.
It is entirely possible that new publications like that
could help improve things.
The judge's conclusion in that article also makes an excellent point:
there should not be a clear and unambiguous definition of "fair use",
what he calls a "bright line standard", unless we have a good standard.
And we don't have one.
The border of fair use has to be messy because people and creativity are messy.
So if fair use is going to be messy, and if it will inevitably lead to conflict…
So if fair use is going to be messy, and if it will inevitably lead to conflict,
let's make resolving that conflict quick, fair and accessible.
This is already starting to happen in the United States, but badly.
The UK has one of the world's friendliest copyright regimes for individual creators.
We have the Intellectual Property Enterprise Court,
which is mainly based here, at the Royal Courts of Justice in London,
and it's a specific court to deal with cases
about copyrights, and patents, and trademarks.
And that court has a small claims track.
If you're an individual photographer or video maker,
you can do the research, file the right forms, follow the right procedures,
and issue a claim as a "litigant in person",
which is the fancy British term for "without a lawyer".
I've done it, because a major company ripped off one of my videos.
This court is designed to be more friendly for individuals:
the procedures are more relaxed, it's almost like mediation rather than a court…
except that, if all negotiations fail,
then there is a judge issuing a legal order at the end of it.
It is stressful. It is hard work. You need to get all the details right.
You should probably get a lawyer if you're gonna do it,
but if your job is basically reading hundreds of pages of nerdy detail
and summarising it into something the world can understand,
then, yeah, it can be done.
It is really nerve-wracking.
Like, most of the people who walk into the admin building
of one of the biggest courts in the country, without a lawyer,
to try and file a claim…
They don't have the best grip on reality, but all of them think they do.
And there I was, walking in, no lawyer,
thinking I had a case, thinking I had a grip on reality.
Statistically, the odds weren't in my favour, but I filed successfully.
And the company settled with me, they paid me to drop the claim,
because they were in the wrong, and they knew they were in the wrong,
and they knew I could actually get it to a judge in exchange for a bit of work
and a court fee of just over £100.
There is a plan to do something like that in the United States.
At the time of recording, the Copyright Alternative In Small Claims Enforcement Act,
the CASE Act, is passing through government.
Unfortunately, it has massive flaws:
using the new small-claims track is voluntary for both parties,
which means that if you want to sue a big company,
that company can just choose to opt-out
and require you to take the expensive path.
And to quote an explainer:
"If the losing party does not comply with the judgment,
"the prevailing party can bring an action in federal court to enforce it."
So if you actually want the judgment to be effective,
you may have to take the expensive path anyway.
In short, all the power is still with the people who have money.
Oh, and it means that it's now much, much cheaper for big companies
to try and enforce unfair claims against large numbers of individuals:
it's a so-called 'default judgment mill'.
The CASE Act is not a fix.
It's a step sort-of in the right direction,
but it's not great, and it may well lead to more problems.
There's also a wider problem dealing with this across international borders,
but that's a separate issue.
Having a working small-claims process in the United States
would help address the massive imbalance between the rights of individuals
and the rights of huge corporations,
at least on this platform, on YouTube.
And even if that's just in the US: from there, the world will follow.
So then finally: we shorten how long copyright lasts.
Under current US law, if a modern work has an individual author,
then its copyright generally lasts until death plus 70 years.
For works by a corporation, it's 95 years from publication.
There are a huge number of complicated factors for older works
because of the many, many changes to the law over the decades,
but that's a decent rule of thumb.
And… that's too long.
Singer-songwriter turned politician Sonny Bono,
the person who the Copyright Term Extension Act of 1998 was named after:
He believed that copyright should be forever.
That the great-great-great-great- great-great-great-great-
great-grandchildren of Shakespeare
should still be able to charge licensing fees for adapting Shakespeare's work —
or more likely, those rights would've been sold to a corporation at some point,
and "Shakespeare Intellectual Property Ltd."
would now be able to collect license fees into eternity.
I think that opinion is so ridiculous as to be indefensible.
If copyright lasted forever, if nothing ever entered the public domain,
then yeah, someone would still have the final say
on how Shakespeare could be adapted or performed.
Perhaps you could perform it however you wanted,
but only by paying an enormous license fee.
Little community theatres like this? Priced out.
Or perhaps someone would want to defend the Shakespeare Brand Guidelines,
and insist that all adaptations be entirely faithful to the original text.
So, no Baz Luhrmann Romeo + Juliet without permission.
No 10 Things I Hate About You without permission.
The Lion King?
Very close to Hamlet, that. You want to avoid that lawsuit.
Making a reference to how "all the world's a stage"?
Pay up. Needs a license.
And if you think that's ridiculous,
find any book that quotes one copyrighted song lyric,
maybe to introduce a chapter:
there will be an acknowledgement somewhere
that they've got permission from the copyright holder.
The point of copyright is to allow people to profit from their creative work.
I am not against copyright. I rely on copyright to earn a living.
But the works that fall into the public domain are vital for creativity.
And patents only last twenty years!
Twenty years before your patent expires,
and anyone can take your actual, physical, real-world invention
and just churn out cheap copies for everyone.
If you invent something that literally changes the world, great!
You get twenty years to make all the money you can,
and after that, you will be out-competed
by other people who can do it better and cheaper.
But write a song? You get until you're dead!
Plus your descendants get another seventy years.
That is ridiculous!
And meanwhile, all the "orphaned works",
the obscure things where no-one can track down the copyright holder anymore
to ask for a license…
Well, they can't be archived, they can't be copied.
They often can't be preserved at all,
just because no-one knows who to ask for permission.
The longer copyright is, the worse that problem gets.
And I know, a twenty-year copyright term that matches patents
would never get through modern politics.
When you have enormous corporations
that earn billions from their copyrighted back catalogue,
it is trivial for them to spend a fraction of that
on lobbying to make sure copyright doesn't get reduced.
I would like it to be twenty years, I would campaign for twenty years,
but… I also know that it's not going to happen.
And, to be fair, it does feel like
the people who made the songs of the '80s and '90s,
the songs that are still being listened to in this current nostalgia cycle,
they should probably be able to make some money from that.
So, I would suggest 50 years.
It's an easy number, it allows a couple of nostalgia cycles to happen,
and it would mean that right now, the '60s would be public domain,
and the '70s would be on their way.
The decades that are no longer pop-culture nostalgia, but history.
Pachelbel, Chopin, Beethoven: they should already be joined in the public domain
by Dylan and Mitchell and Hendrix and Cline.
Shakespeare and Shelley — either Shelley —
they should be joined by Lee and Heller and Orwell and countless others,
including the works that no-one can trace the owner of,
because after 50 years, you shouldn't need to trace the owner of a work.
You should just be able to use it.
Anyone should be able to make a James Bond movie by now.
'Cause they'd probably do a better job.
Yes, the people who have already made ludicrous amounts of money
would not be able to make as much anymore, sure.
But the artists' work, the thing they're supposed to actually care about,
could be enjoyed and built on by everyone.
And the few artists from back then who are still popular
will be absolutely fine,
continuing to make money from their world tours, and merchandise,
and public appearances, and newer albums.
And an entire new generation would get exposed to music and writing and art
that might otherwise be forgotten about.
A shorter copyright term would badly affect perhaps a few hundred people in the world:
the folks who created one hit song, or one incredible book
that is still bringing them money decades later,
and who are now relying on that money as their only source of income.
It's not many people, but yes, the very, very, very few who fit into that category,
it'll suck for them.
If royalties were their pension scheme — I mean, that's bad financial planning,
but if they were thinking that the one song they made in '64
will get them through their retirement,
yeah, it's gonna be a shock.
I do not believe that that's a strong enough argument
to justify locking up all that creativity,
all that potential for the entire world, for that long.
No-one's going to stop creating
because they only get 50 years' or 20 years' copyright.
Songwriters, and authors, and filmmakers, and choreographers, and YouTube creators:
we make things because we can.
Because we have ideas and we want to show them to the world.
Not because we're thinking that our grandchildren might, one day,
have a chance of getting a trickle of money from some future copyright license.
So, when I say that YouTube's copyright system isn't broken, I mean it.
It's a reasonable patch, a bit of duct tape
holding together a system that's somehow still just about working,
despite being completely unsuited for the modern world.
Yes, occasionally it goes wrong.
When that happens, it should be fixed quickly and transparently.
But the long-term solution is not to apply another patch,
on another patch, on another patch, on another patch.
The solution is to fix the system that it's trying to work around.
Because that's the problem.
YouTube's copyright system isn't broken.
The world's is.
Alright, that's it. Remember to like, comment—
oh come on!
Over on Nebula, I've got a new series. Here's the trailer.
I invited five people to play some games.
I trust no one. None of us are trustworthy.
…in an environment designed to slowly break their team apart.
This is real money!
But all they knew is they'd be sat around a table
trying to win real cash: $10,000.
The vibe's changed after that theft.
This is a show about trust, about loyalty,
and about Money.
Tom wants the chaos. (all laugh)
Nebula is a home for new, in-depth and experimental content,
and collaborations from some education video creators
that you may well have heard of.
And you can get it for free when you join CuriosityStream,
a subscription streaming service with thousands of
big-budget, professional documentaries and nonfiction titles.
CuriosityStream is $2.99/month or $19.99/year,
it includes access to Nebula, including my new series,
and you can get a 30-day free trial by going to curiositystream.com/tomscott
Is he even allowed to mix advertising and content like that?
That is a whole other video.
[Caption+ by JS* https://caption.plus]
and if some of it will inevitably lead to disputes,
let's make that process quick…
I said dis-PUTES. I didn't say DIS-putes, I said dis-PUTES.
I said the verb, not the noun.
It's an important distinction. Can we try that again?
…will inevitably lead to disputes,
let's make that process quick, fair, and accessible.
I still said, DIS-putes.
…inevitably lead to disputes—
inevitably lead to disputes—
let's make a— DIS-putes!
So if fair use is going to be messy, and if it will inevitably lead to conflict…
Maroon 5's Memories is an infuriating composition
that uses the start of the melody of Canon in D but never resolves it
There seems to be— [stammers]
Nope. Worth a try. Let's go back!
[vocal warm-ups]
Alright, how're we doing?
Yeah, I got that on camera. That's good.
Good.
Every week, there seems to be in-a-new headline about—
There seems to be— [stammers]
We bought that license in good faith from a…
What'd it say? "Oh I'm sorry, we had no idea."
Let's try it again, take…
eight, or is that seven now?
[screams]
[low scream]
[faint yell]
[yelps]
[long scream]
Ooh, sorry.
…mainly based here, in the Royal Courts of Justice.
No, I saw you walk into that…
[strained] Yep!
[groans] It's fine!
All right, that's it, I'm out of battery and out of patience. We are done.