YouTube Demonetization and Vlogging Woes

In the age of technology, it is not such a far flung idea that people can make a living by filming themselves speaking about whatever comes to mind, posting that video on a website, and waiting for the money to roll in. The most prolific of these host sites is YouTube, which traffics an estimated 1,000,000,000 unique monthly visitors.1 But how do the content creators profit from their videos through YouTube, and what say does YouTube have in which videos are eligible to earn revenue?

YouTube content creators, or ‘vloggers’, can make their money a number of different ways, one of which is to allow advertisements to be displayed prior to their videos.23 YouTube has recently come under fire from content creators after they began flagging multiple videos a day as being unable to earn money through advertising.4 YouTube’s current guidelines for being ‘advertiser-friendly’ mean that a video cannot show things including, but not limited to, “[s]exually suggestive content […], violence, […] promotion of drugs and regulated substances, […] or controversial or sensitive subjects and events, including subjects related to war, political conflicts, natural disasters and tragedies, even if graphic imagery is not shown.”5 YouTube has assured its users that their content is not facing stricter guidelines, but their method of alerting creators of the demonetization of their videos has been modified.6 However, just because YouTube hasn’t further restricted their ‘advertiser-friendly’ guidelines doesn’t mean that creators are accepting of what many deem to be censorship according to vague guidelines that are enforced using a simple algorithm, capable of making errors.7 It will be important to see what recourse a creator will have against YouTube in the event that a video is incorrectly demonetized, causing them to lose advertising revenue. A creator can earn an estimated $18.00 per 1,000 views of a video.8 If a video is demonetized for a full 24 hours, the loss in revenue can be hundreds, even thousands of dollars. This problem may be further exacerbated by YouTube’s new YouTube Heroes initiative, “a global community of volunteer contributors who help create the best possible YouTube experience for everyone.”9 This crowdsourced censorship allows volunteer YouTube viewers to report inappropriate videos to earn points.10 Much like Twitter bashing, this platform may open up an avenue for individuals to over-report videos they do not agree with, leading to additional inaccurately demonetized videos. Whichever method causes videos to be incorrectly deemed not advertiser friendly, YouTube will have to deal with content creators who demand to be compensated for a loss in advertising revenue, leading to litigation with thousands of individuals who have the support of the internet masses behind them.

Control Your Cloud So It Will Not Rain on You

The Digital Millennium Copyright Act (DMCA) creates a “safe harbor” provision exempting an internet service provider’s (“ISP”) contributory liability for the copyright infringement of the work that ISP user uploaded to the ISP’s hosting environment.[1] However, the protection is available to the ISP only when it “does not receive a financial benefit directly attributable to the infringing activity, in a case in which the service provider has the right and ability to control such activity.”[2] The question arose from this requirement is whether “the provider must know of the particular case before he [sic] can control it.”[3]

In Viacom Int’l, Inc. v. YouTube, Inc., the Federal Court of Appeal of Second Circuit ruled that the safe harbor provision of the Digital Millennium Copyright Act (DMCA) does not require an ISP have specific knowledge of the infringement activity in order to control the content the ISP user uploaded to the ISP’s cloud storage and cloud service.[4] In its ruling, the Second Circuit explicitly rejected the Ninth Circuit’s holding that “’until [the service provider] becomes aware of specific unauthorized material, it cannot exercise its ‘power or authority’ over the specific infringing item.’”[5] Therefore, the Second Court’s ruling created circuit splits and an uncertainty of whether an ISP can quality for DMCA’s safe harbor protection where it does nothing to control the infringement activities occurring in its cloud services because its unawareness of specific infringements.

Furthermore, the Second Circuit applauded one case in which the ISP “institute a monitoring program . . . [and] forbade certain types of content . . . .”[6] This case exemplifies that “the service provider exert[ ] substantial influence on the activities of users, without necessarily—or even frequently—acquiring knowledge of specific infringing activity.”[7] The dictum seems to suggest that, for establishing the ability to control, an ISP shall implement some proactive monitoring measurements over the contents uploaded to its cloud service or cloud storage. And, it may create two issues. First, what level of monitoring and actions will be sufficient to control. Second, whether the monitoring program will adversely infringe the ISP user’s right of privacy.

[1] 17 U.S.C. § 512(c)(1) reads as follows “[a] service provider shall not be liable for monetary relief . . . for infringement of copyright by reason of the storage at the direction of a user of material that resides on a system or network controlled or operated by or for the service provider.”

[2] 17 U.S.C. § 512(c)(1)(B).

[3] Viacom Int’l, Inc. v. YouTube, Inc., 676 F.3d 19, 36 (2d Cir. 2012).

[4] Id. at 38 (holding that “§ 512(c)(1)(B) does not include a specific knowledge requirement . . . .”).

[5] Id. at 38 (citing MG Recordings, Inc. v. Shelter Capital Partners LLC, 667 F.3d 1022, 1041 (9th Cir. 2011)).

[6] Id. at 38 (citing Perfect 10, Inc. v. Cybernet Ventures, Inc., 213 F.Supp.2d 1146, 1173 (C.D. Cal.2002)).

[7] Id. at 38.