NASA's successful landing on Mars of an SUV-sized nuclear rover from a rocket-skycrane should have marked a high point in collaborative accomplishments between humans and robots. But here on Earth the situation was a bit more tense. That's because, just hours after the celebrated touchdown, Vice Magazine's Motherboard blog broke the news that one of NASA's official clips from the mission had been pulled from YouTube, replaced with a notice from the video site indicating that the "video contains content from Scripps Local News, who has blocked it on copyright grounds."

Motherboard points the finger of blame at the DMCA, the law that provides the terms under which online service providers must enforce copyright policies in order to avoid liability. But as Ars Technica has since pointed out, the problem likely lies not with the DMCA itself, but with the additional (and voluntary) automated Content ID system YouTube has developed. Content ID uses digital fingerprinting technology to identify duplicate audio and video on YouTube and, depending on the "business rules" configuration of the designated rightsholder, blocks or places ads next to videos. Unfortunately, the robots behind that copyright enforcement machine have the tendency to shoot first and ask questions later, even when it ends up silencing real — human — speech.

The balance struck in the DMCA is not perfect, and it's certainly subject to abuse. For example, the clause saying that takedown notices must be sent in good faith under penalty of perjury very rarely shows its teeth. And even in cases where content is non-infringing and the uploader is willing to file a counter-notice, the accuser gets 10-14 days of censorship for free, before the service provider can put it back up. In the case of newsworthy videos or commentary on current events, those 10-14 days can make or break the message.

Despite this, the DMCA at least strives to limit those abuses by, among other things, providing an appeal process with a safe harbor for providers who allow content back up after a counter-notice.

Content ID, by contrast, is an opaque and proprietary system where the accuser can serve as the judge, jury, and executioner. There is an official dispute mechanism — and where it's effective it can be easier than a DMCA counter-notice — but in cases where a user runs into a dead-end she has little recourse.1 The Content ID system tips whatever balance is present in the DMCA and allows even more pernicious forms of manipulation and abuse. In a Wired column earlier this year, Andy Baio enumerated some of the problems that YouTube users encounter:

But there has been a dramatic rise in Content ID abuse in the past couple of years, wielded in ways never intended. Scammers are using Content ID to steal ad revenue from YouTube video creators en masse, with some companies claiming content they don’t own deliberately or not. The inability to understand context and parody regularly leads to “fair use” videos getting blocked, muted or monetized.

But even without taking scammers into account, the premise behind Content ID is just incompatible with fair use and the public domain. It's impossibly complicated to define in a set of "business rules" for automated enforcement. Allowing Content ID robots to apply the rules leads to oversimplification that chills legitimate speech.

A spokesperson for Scripps, the news agency behind the Content ID takedown of the NASA video, sent a response to Motherboard apologizing for the "temporary inconvenience." But it's not even clear that a user without NASA's large audience and uncontroversial content would get the same treatment.

Of course it's within Google and YouTube's rights as companies to set whatever policy they want for posting videos to their sites. But by tipping the scale towards copyright holders who can stifle speech through negligence or overreach, they are not exercising good citizenship as a platform. In order to avoid stifling expression through videos, YouTube and other platforms should ensure that they follow the fair use principles for user-generated content put forth by EFF, Public Knowledge, and other groups.

The consequences of these problems are real, and best summed up by a NASA spokesperson in a comment to Motherboard:

“We spend too much time going through the administrative process to clear videos slapped with needless copyright claims,” says NASA’s Bob Jacobs. “YouTube seems to be missing a ‘common sense’ button to its processes, especially when it involves public domain material paid for by the American taxpayer.”

Jacobs is right: this is a question of common sense. These videos belong in the public domain as a part of our cultural and scientific heritage. Their availability shouldn't be curtailed because YouTube wants to make its copyright enforcement system friendlier to private rightsholders.

  • 1. The original version of this post didn't mention the official Content ID dispute process. It's been updated to reflect that.

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