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Why Is Facebook Inspecting Your Private Videos?

DEEPLINKS BLOG
November 17, 2015

New Copyright Bot Raises Questions About Fair Use and Privacy

In general, Facebook has some pretty decent copyright policies. If you upload content to Facebook and it’s removed because of a bogus takedown request, you can file a counter-notice via a form on Facebook’s website. If the claimant doesn’t take action against you in a federal court in 14 days, your content is restored. That’s how it’s supposed to work, and Facebook usually does it right. Unlike some platforms, it also doesn’t ding users as “repeat offenders” based on multiple phony claims.

But Facebook has recently introduced a new system for automatically recognizing copyright infringement in videos, and the way it works could raise a few eyebrows. In some circumstances, the new copyright bot actually requires Facebook users to share their private videos with a third party. While arguably well-intentioned, the system could threaten not only users’ free expression online, but also their privacy.

Facebook vs. Freebooting

Earlier this year, celebrity videoblogger Hank Green wrote a scathing critique of the way Facebook handles video content. Among other criticisms, Green said that Facebook hadn’t done enough to combat freebooting, the practice of downloading someone else’s video and reuploading it to your own profile. You’ve probably noticed freebooted videos on Facebook: they’re often the same funny videos you saw last month on YouTube, sometimes with crappy advertising or other text added to them.

Freebooting is more popular on Facebook than you might think: Green cited a study showing that in the first quarter of 2015, 725 of the 1,000 most popular videos were freebooted. According to Green, Facebook implicitly rewards freebooting by prioritizing native video uploads over YouTube embeds: “[W]hen embedding a YouTube video on your company’s Facebook page is a sure way to see it die a sudden death, we shouldn’t be surprised when they rip it off YouTube and upload it natively. Facebook’s algorithms encourage this theft.”

Green’s criticism struck a chord with a lot of content creators. People and companies that produced video wanted to know that Facebook had a plan to fight freebooting. The uproar came at an inconvenient time for Facebook, just as it was looking to ramp up its presence in the online video world and build better relationships with those same creators.

Content ID Lite?

In August, Facebook announced that it would be rolling out new features to combat unauthorized video sharing:

[W]e have been building new video matching technology that will be available to a subset of creators. This technology is tailored to our platform, and will allow these creators to identify matches of their videos on Facebook across Pages, profiles, groups, and geographies. Our matching tool will evaluate millions of video uploads quickly and accurately, and when matches are surfaced, publishers will be able to report them to us for removal.

Actually, Facebook has been building its content matching technology piecemeal for some time. For years, Facebook has partnered with Audible Magic, whose audio fingerprinting service is used by several social media sites to pinpoint copied music. Facebook has launched the new video matching system with a small group of content creators, with plans to roll it out to a larger base of users.

Facebook’s announcement invites comparisons to YouTube’s sometimes-problematic Content ID service. Content ID lets rights holders submit large databases of video and audio fingerprints. The bot scans every new upload for potential matches to those fingerprints. The rights holder can choose whether to block, monetize, or monitor matching videos. Since the system can automatically remove or monetize a video with no human interaction, it can often remove videos that are clearly lawful fair uses and even videos that haven’t copied from another work at all.

Fortunately, it appears that Facebook doesn’t currently remove anything automatically: it detects potential matches and flags them for the rights holder’s review. If the rights holder reports a video as potential copyright infringement, it’s still not deleted automatically. For now, all requests are reviewed by human staff at Facebook. We're glad that Facebook has introduced video matching in a way that won’t create unnecessary and annoying autotakedowns.

Sharing with Friends (and Alleged Rights Holders)

But what happens when you share a video only with your friends (or with a private group) and that video registers as a match? From what we’ve pieced together, when you upload a video intended only for friends and Facebook thinks it might be a match, you won’t be allowed to share it with your friends unless you are willing to show it to the rights holder as well. (We haven’t actually seen this happen. If you see a notification like this when uploading a video to Facebook, please let us know about it.)

The policy may be better than some of the alternatives. For example, it would be a disaster if Facebook sent the matching video to the rights holder without notifying the uploader, or if Facebook simply deleted private videos with no human review (as YouTube has been known to do).

Still, Facebook has effectively created a new restriction for private communications: if you’re not willing to share your private video with someone whose copyright a computer thinks you might be infringing, you can’t share it with your friends.

That’s unsettling for two reasons. First, it may put your privacy at risk. Rights holders can’t see your name, but there’s no way to scrub personally identifying information from the video itself. If you upload a very personal video that happens to have a Drake song playing in the background, it doesn’t make much sense to require you to share the video with Drake’s record label.

Second, it could undermine fair use rights. The section of U.S. law that defines fair use specifically dictates that using parts of a work for the purpose of criticizing that work doesn’t constitute copyright infringement. It doesn’t require that that criticism be shared directly with the rights holder.

It’s easy to think of scenarios in which an uploader wouldn’t want to share their criticism with the rights holder, or even ones in which doing so could be dangerous. For example, the target of criticism could be the uploader’s employer, or someone known for harassing their critics. Facebook is a great platform for video creators to privately share and discuss their work: what about mashup artists or activists using Facebook to share draft edits with each other? Does it make sense to require users to run their work by copyright holders as a condition of exercising their fair use rights?

Here’s a better question: is it really necessary to run privately uploaded videos through the copyright bot at all?

Why Filter Private Content?

The simplest solution might be for Facebook not to scan private videos for matches. Scanning private communications for copyright infringement is foolish at best, and downright scary at worst (imagine the backlash if Google started using Content ID in Gmail).

Uploading a video to share it with your friends is very different from sharing it publicly. When you share a video publicly, it can go viral and reach thousands of people. When you share it with your friends, it can only reach those friends. (Because of the way Facebook works, a video that you only share with your friends can’t even reach your friends’ friends: your friends can share your post, but only with people who are also on your friends list.)

One of the four factors used to determine whether a certain use of a copyrighted work is protected under fair use is the impact that the use might have on the market for the original work. The impact that private sharing on Facebook has on the demand for a work is minimal.

Unlike on YouTube, there’s no monetary reward for video views on Facebook. That’s not to say that no one uses Facebook commercially: many brands and content creators do, but their methods for monetizing their videos are more complicated than views alone. If a person wanted to use Rihanna’s videos to mislead viewers and compete for her album sales, he wouldn’t be very successful just sharing them with his friends.

To return to the original criticisms of Facebook that led to the matching system, private sharing isn’t the issue at all. The freebooters that Hank Green is annoyed with are, by definition, uploading their videos publicly.

Facebook Is the Internet

Imagine trying to send an email and having your email service tell you it can’t send it because of an alleged copyright violation. In essence, that’s what Facebook’s video matching system does. If you can’t share a video privately without allowing a third party to view it, then you can’t share a video privately.

If it sounds like we’re holding Facebook to a high standard; well, Facebook holds itself to a high standard. Facebook’s new Free Basics program brings a Facebook-centered version of the Internet to many mobile users in developing countries. Here in the U.S. and around the world, Facebook partners with mobile providers to offer special plans that include unlimited Facebook access. For millions of people, Facebook is the Internet. A Facebook policy that impacts people’s ability to communicate privately deserves extra scrutiny.

A lot of the time, Facebook withstands scrutiny. For example, Facebook shows more respect for its users than some of its peers do in the face of governments’ demands for user data.

In this case, though, Facebook is making a misstep. Going to reasonable lengths to earn content creators’ trust is a good thing, but when it gets in the way of private communications, it’s time to reevaluate.

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