CASE Act: CCB opened June 16; some questions about YouTube copyright claims and maybe links/embeds

On previous blogs (which have expired due to my conversion to a 'one site' system) I had discussed the CASE Act and the concerns it could be abused.

Although originally the Copyright Claims Board (CCB) had intended to open Dec. 27, 2021, to hear claims, administrative delays (capped by an absolute deadline of June 25, 2022) occurred; but on Thursday, June 16 (right before the Juneteenth federal holiday weekend) the CCB formally opened to hear claims, as it announced here.

On June 17, 2022, Mitch Stoltz, of Electronic Frontier Foundation, offered an op-ed 'Copyright "Small Claims" Quasi-Court Opens. Here's Why Many Defendants Will Opt Out'. Stoltz made an interesting observation about possible constitutionality challenges to the CCB acting as a 'quasi-court', or to the idea of what amount to very heavy (for ordinary people) civil 'parking tickets'. Stolz discusses issues in the rules that would in practice hamper defendants for claims of $7500 or less.

Stoltz, on the same day, also offered another op-ed 'EFF Warns Another Court About the Dangers of Broad Site-Blocking Orders'. Although I have not heard of this happening in practice with respect to copyright, the danger would be that some defendants could get blackballed from using the services of any webhosts, domain registrars or services like Cloudflare at all. (Some of this did happen shortly after Charlottesville in late 2017 with regard to extremist supposedly right wing or white-supremacist content, but that is not a copyright issue.) Stolz discusses a particular situation with a plaintiff called United King Film Distribution.

On the CCB opening issue, however, I find myself having to 'connect the dots' with respect to YouTube's content-id system, and the idea that creators sometimes get automated copyright claims from publishers, which do not intersect with the actual copyright strike system. 

There is an explanation here on Vidq, "What's the Difference Between a Copyright Claim and a Copyright Strike?" by Carla Marshall, Dec. 1, 2020, as to how this works. 

@YouTubeTeam on Twitter wrote to me 'These are manual claims by the publisher representing the writers of the song for the underlying musical composition (i.e., lyrics & melody), not for the recording'.  Therefore, it seems that publishers submit music clips to YouTube that they want the YouTube contend-id system to check for automatically and generate claims.

The automated system generally does not result in copyright strikes and actual lawsuits against small creators have been very rare if they happen at all.  However, with the CASE Act, it is logical to ask whether the same automated system could be used to mass generate these mass 'parking tickets' to small creators.  Hopefully not, as doing so might overwhelm the intended streamlining even for the CCB. 

So, I checked my own channel.  You can go into your channel, 'Manage Videos', then look at the left side of the entire management page for 'Copyright' and you can navigate to a link that shows (separately) strikes and claims. 

Doing so, I found four claims.  Three of them were from 2016, one from 2018.  Three of them were shorter than 20 seconds, one (taken at a Smithsonian folk exhibit) ran about three minutes.  The 2018 video was at a science exhibit on the Mall.  All were from background music that happened to be playing at the time. 

What is copyright law on incidental background music that intrudes into a video?  Here is a good take on the question, 'What’s Legal: When Are Background Sounds With A Copyright In Video Clips OK?', January 1, 2010, by Mark Levy and Mike Szydlo.  Sorry, the onus seems to be on the small creator as far as the law is concerned, taken literally.  The video creator, given their expectation of 'freedom of reach', could reasonably be expected to master the skills of video editing and take out any intruding music.  More professional creators usually subscribe to low-cost licensed music providers for background (and some composers I know in NYC provide music to this system as part of their making a living, so it matters to them).  But there can be other situations.  For example, what about a video of a public folk-dancing exhibit on the Washington DC Mall by the Smithsonian (usually around July 4), or of patriotic holiday concerts, or say Easter sunrise services?  I have sometimes filmed and uploaded these in the past and received no claims or complaints.

It's interesting that here are no claims since 2018. That’s partly because YouTube now does automatic checks during video processing and catches them. But it's also true since about 2019 or so I generally have become more skittish about filming when there is background music. I don't film dancing in bars now, for example, because the establishments object, but also because disco music is heavily controlled by licenses.

I've decided, out of abundance of caution, to delete those four videos from my own YouTube channel this morning, although I have downloaded copies saved off in a separate directory.  Later this summer I could, after upgrading my editing capacity in house, re-edit them by removing the sound, and present a combined video with vocal commentary by me on the copyright issue, as things develop.  I will occasionally check the channel.

The content-id system is surely inspired somewhat by the EU Copyright Directive and Article 17, where the need for filters is practically mandated by law (and where there was great controversy about three years ago, as to how it would spill over into the US and Canada/Australia). 

But mention of the EU Copyright Directive also reminds one of the link tax in Europe and the controversy that resulted (especially in Spain at one point).  

Back around 1999 or so, when the Internet and Web 1.0 were new, some older publishers, slow to get online at first, objected to being hyperlinked to internally, fearing loss of exposure and ad revenue if visitors didn’t get to the specific stories through their own site architecture first.  As I recall, there was an appeals court opinion in 2000 that a hyperlink is nothing more than a term paper footnote.  It is not infringing.  Even embeds are considered to hyperlinks, protected by the so called “server rule”.  But in 2018 there was a report a serious case in New York State (2nd Circuit) that might jeopardize the server rule (my older story), at least with video or image embeds.  There have also been some cases where would-be plaintiffs have tried to claim that for a content creator to embed a video that the creator knows or believes is likely to be infringing (by inspection), itself is infringement.  I don’t know how well tested in court this is. 

I will review the hyperlink problem in the next few weeks and try to find more specific information. One news outlet, in my experience, Fox News, throws 403-forbiddens when linked internally (as if Fox actually fears revenue erosion, or maybe exposure or somehow loss of effectiveness).  Sites can control this with hta-access, but very few actually do.  

When one ponders the idea that a link tax is even used or tried, it suggests the idea that some companies in the media establishment do not believe 'amateurs' should publish to the world at all, without going through channels set up by others (ironically that seems to be falling in line with "wokeness" recently).

One could also ponder questions about hyperlinking to sites behind paywalls.  I don’t think that should be a problem; the content owner (often a corporate media publisher owned by a larger company) can simply throw in the paywall and require subscription and log-in if it wants to – although the “fact” that it had reported have been repeated by the creator.  But (normally) facts cannot be copyrighted (they can be security classified, however), or lead to other torts (defamation. Etc).  A few television stations (which do not normally have paywalls) have statements “this story may not be written or rebroadcast” or words to that effect. But the information in them cannot be copyrighted. It’s a bit like 'Hawking radiation'. . 

Along these lines, I have suggested in the past that maybe a startup could be created to offer consumers consolidated paywall accounts that are easier to use and keep track of, and that would offer more varied reading, as an antidote to our political polarization in social media. I’ve even mentioned the idea to a couple of tech 'friends' on Twitter.  I’ll come back to this idea with feedback, I hope.  I think you could set up a company like this for maybe $80 million or so (which would have to be raised). 

But I expect the CCB to follow existing case law to the letter, as closely as it can. I don’t believe the CCB will invent new theories of infringement based on some (possibly 'woke') social ideology, like some individual content creation offered for free interferes with established journalists making a living (I have heard that one), or that it interferes with activism by marginalized groups (I’ve heard that also, like I’m supposed to join up as a member of an oppressed group rather than do things for myself).

(Posted: Tuesday, June 21, 2022 at 11 AM EDT by John W. Boushka)