> That sort of situation should be considered fair use, and copyright owners who attempt to make trouble for people caught up in this situation should be slapped down, hard, and fined.

It is considered fair use, but we're not dealing with government law here. We're dealing with a private company's TOS. In fact, Youtubes entire Copyright "strike" system is just a layer in front of "proper" DMCA.

The large, corporate copyright holders are happy with the setup since they can basically strike down anything they want without worry of legal repercussions (which DMCA addresses). Youtube is happy since the large copyright holders are happy. Small creators get screwed over, but it doesn't really matter to Youtube since there's essentially an endless supply of Youtube content creators.

Exactly -- and the situation arises because "fair use" determinations aren't scalable. It literally ultimately takes a court and a jury to determine if something is fair use or not, which is incredibly expensive.

Now in 99.999+% of individual human situations, it never gets that far because it's pretty clear to a person in advance whether something is fair use or not, or they ask a lawyer and assess the risks, etc.

But when you're dealing with user media at scale, that system falls apart. YouTube can't have a human lawyer manually review each clip for fair use, YouTube certainly can't trust uploaders because there are tons of people trying to upload entire Hollywood movies, and asking copyright owners to manually review each flagged match is similarly not scalable.

So YouTube simply implements a content matching system that disallows more than a certain amount of copyrighted material period. There's no other scalable solution given existing copyright law.

And honestly, this new eraser tool is a really good solution if it works. If it can simply and effectively remove unwanted background music that was never wanted/intended to begin with, then it works for everyone -- pirated content uploads are still blocked scalably as well as unlicensed sountracks on webisodes etc., but people can still upload personal clips and instead of them being blocked, they can just remove the music instead.

> There's no other scalable solution given existing copyright law.

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No, practicality does not demand "binding shitty algorithmic decisions for thee, extreme latitude for egregious errors from me." Determinations don't need to be scalable to backstop a system of back-and-forth escalating claims that keeps the incentives correct for everyone at all stages: human beats algorithm, identified human beats unidentified human (note that at this point and all subsequent points rights holders have an enormous, automatic scalability advantage), identified human with legal commitment to consequences for being incorrect beats uncommitted human, and finally bump it to the legal system if all else fails, but by now everyone has skin in the game committed to their claims so none of the disagreements will be spammy.

This is all possible, it's not even particularly difficult, but it wouldn't create a cozy relationship with big rights holders which is what youtube actually wants, so instead we get "binding shitty decisions for thee, extreme latitude for egregious errors from me."

> Determinations don't need to be scalable to backstop a system of back-and-forth escalating claims that keeps the incentives correct for everyone at all stages

That's yesterday's game. It might have been possible to do this in the 90s, but today's copyright claims are automatic, authoritative and legally legitimate enough to scare a platform owner. This is entirely legal, too; nothing stops Sony from dumping 800,000 alleged infringements on YouTube's lap and giving them a 2 week notice to figure it out. If Google doesn't respond to every claimed abuse, then Sony can force them to arbitrate or sue them in court for willful copyright violation.

> This is all possible, it's not even particularly difficult

But it's not automatic, it creates unnecessary liability, and it's more expensive than their current solution. It's not overly generous to Google to assume that they also hate the rights-holders, but literally can't be assed to do anything about it because the situation is stacked against them. Even assuming the overwhelming majority of copyright-striked content is Fair Use, the losses incurred by the 0.1% that isn't could make defending YouTube a net-negative. Record labels and movie studios keep IP-specific lawyers on-payroll for this exact purpose, and fighting it out is a losing battle any way you cut it.

This is what the DMCA safe harbor policy was meant to deal with. Hosts are not held liable for user content if they respond to a DMCA takedown notice in a timely manner. The other half of the system is that users are supposed to be able to submit a counter notice to have content immediately restored without judicial intervention. At that point the host is immune from litigation and the original party can seek remediation in the court system.

YouTube doesn't provide an implementation of the second half of the DMCA process because they have a side deal with big media to manage royalties in exchange for a system biased in their favor.

> supposed to be able to submit a counter notice to have content immediately restored

Not immediately AFAIK - the provider has to wait ~2 weeks (in which case the original issuer of the notice can sue).

> YouTube doesn't provide an implementation of the second half of the DMCA

AFAIK YouTube does implement this: https://support.google.com/youtube/answer/2807684?hl=en

However, most copyright disputes on YouTube happen within YouTube's own process (where usually the claimant gets the revenue from the video but the content usually stays up), not the DMCA process (takedown and copyright strike)

They tried the safe harbour argument against Viacom. It didn't go that smoothly.

https://en.wikipedia.org/wiki/Viacom_International_Inc._v._Y....

That whole debacle spawned Content ID and yes, now they're happily in bed together. They probably prefer it like that, while we'd prefer safe harbour actually works as intended.

How are small creators screwed over?

I watch FTL game vods regularly. Recently the whole FTL community was hit by id claims on the music in the game, from a company that doesn't own the copyright, on behalf of the author, who has nothing to do with it. He replied that he's aware but cannot do much with it. And FTL is too small to bubble up in social media. It's not the first time it happens.

The situation resolved in two weeks, but for that time all monetization was "shared" with a scam entity. The name of the scammer is "TuneCore".

Explanation: https://www.youtube.com/watch?v=sHBhM7PNRYA

Reddit: https://www.reddit.com/r/ftlgame/comments/1cj0hkt/ftl_youtub...

TuneCore scam: https://en.wikipedia.org/wiki/Believe_Music#:~:text=Copyrigh...

... at what point does Believe Music just get put in its own timeout for this shit?

Fair use is one of those laws that is worthless because normal people cannot use the courts to defend themselves.

> corporate copyright holders are happy with the setup since they can basically strike down anything they want without worry of legal repercussions (which DMCA addresses).

In practice they never have much to fear from legal repercussions. There are countless examples of DMCA notices sent by corporations in error, or sent for things like suppressing criticism, or to find out someone's identity, or to try to extort money, or as an attack/DoS but I'm not aware of any CEO or corporate lawyer being charged with perjury.

Even if someone wanted to fight a corporation in the court system they can't just prove that the DMCA notice wasn't valid, they also have to prove intent (that the corporation knew it was invalid when it was sent) and even if they manage to win, they'd be lucky to get enough money to cover their legal expenses (http://copyrightsandcampaigns.blogspot.com/2010/02/court-nar...)

"the government" has been known to use the copyright strike system to their benefit. Want to ensure that bystander/witness footage of your illegal / unconstitutional acts don't go viral? Blast a <pop artist> song as you go about your business. anyone recording will have the video removed.

No, i won't cite. Even bing can find numerous publications on this very topic with "cops playing copyrighted music to prevent video uploads" which is basically what i said.

Agreed. It is stupid and vile to use a few words.

I am all for enforcement if it reaches a significant audience with commercial interests. But now anyone for any reasons gets this crap.

> walk around outside, making a video of what they're doing, and post it, without having to worry that some copyrighted music is playing in the background for some portion of it.

You can, this is called "incidental use" and is an exception to copyright in the USA. If you're filming yourself going down the street and someone starts playing a song, and you're not going out of your easy to capture the copyrighted content, it is legal.

YouTube's copyright strike system is more strict than the law, probably to kowtow to the music companies serving the YouTube Music product in exchange for not having to defend against a lawsuit.

If we weren't subject to their monopoly on online video, someone could just start telling copyright trolls to pound sand when a frivolous complaint comes up.

> If we weren't subject to their monopoly on online video, someone could just start telling copyright trolls to pound sand when a frivolous complaint comes up.

In principle, maybe. But realistically, even if we had a competitive and healthy video hosting market, the RIAA would still have a legal imperative to moderate those platforms. Although we don't perceive them in direct competition with YouTube, copyright takedowns still happen on TikTok, Twitter and Instagram. Platforms of a certain size become targets for IP holders, and platform-owners lack the time or accountability to deal with each claim on a case-by-case basis. It's less about finding a "someone" to tell-off copyright trolls, and more about paying enough lawyers to fight Sony & Friends when they make dubious claims.

It's a status-quo that sucks for us humans, but this is what intellectual property laws look like as-applied to real life. Art, video and even code are all obsessively licensed to prevent the accidental proliferation of good ideas.

It's also easier said than done to fend off intelligent and determined legal adversaries.

It is pretty ridiculous what their copyright bots flag too.

I recorded a live performance of an orchestra in Barcelona at some cathedral. Some version of the song got copyright flagged. Really? Flagging live performances of (checks notes) a song composed in 1954?

Just bananas.

Each live performance of a work creates a separate copyrightable work (a derivative work of the composed song, I believe). And composed in 1954 is almost certainly copyrighted still, given that most European countries follow a life+70 rule.

In addition to incidental use and and law enforcement and investigative purposes , copyrighted music in a YouTube video could also be Academic Use, journalism / criticism, sufficiently transformative, a mixtape-style compilation,.

Someday hopefully the musical copyright folks on YouTube will share revenue with Visual Artists on there, too.

They can, they just shouldn't expect to be paid for it.

Personally I would say people should not be able to make money off someone else's copyrighted content without permission, but someone putting a lot of work into making a good video and having someone else claim all the money over 10 seconds of audio doesn't seem right either.

Recursive attribution (e.g. a profitable video used 10 seconds of a remix of a song ultimately belonging to xyz) would be fair. It should be easy for YouTube engineers to engineer profit sharing.

Say hypothetically that the song writer gets paid 100% every time their song gets played 100% in any video, why does copyright care at all? It's right to safeguard the primary creator's intellectual property to the extent of allowing them to claim share in profits, but it's strange to use copyright to restrict use.

Mathematically it would be simple, but I don't think it's as simple as just splitting based on time. They'd probably argue the song or movie clip added more value e.g. if I used a famous song in my 10 second introduction clip, that's a major branding move, is that still only worth 1/60 of the revenue from my 10 minute video? Or would I have many fewer viewers with weaker branding week on week?

There is also the right of the creator to have their work not used in ways they don't approve of. This a commonly heard about when politicians play songs at rallies. It's not just about the dollars.

Unless the purpose and value of the video is solely distribution of the copyrighted music it should be protected fair use. If copyright holders don't like it they are free to not license their music to be played in public ever.

I agree, but this conversation immediately goes to hell if you use that video to train AI, among other problems.

> I guess it's good that there's a new solution to this problem, but I wish it just wasn't a problem in the first place.

Youtube created the problem and now have this tool to help the problem they created. Indeed, it would be better to not have the problem in the first place!

Having some background music, or short clips, is absolutely fair use and from a pragmatic point of view, just common sense. But all the youtube content creators I know are in constant panic of letting even the slightest bit of external sound into their videos. It is completely unnatural.

No, the people created the problem by voting (indirectly) for the legislation that led YouTube to create its system. Do you think YouTube wants to spend resources implementing a copyright strike system when they could just let that content exist on their platform?