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Unfiltered: How YouTube’s Content ID Discourages Fair Use and Dictates What We See Online

Introduction YouTube's Content ID: Culture of Fear Case Study 1: hbomberguy How Content ID Dictates Expression on YouTube: Practically, Fair Use Has No Effect Case Study 2: Todd in the Shadows Creators Cannot Leave or Meaningfully Challenge the System: Where Am I Supposed to Go? Case Study 3: Lindsay Ellis Conclusion

Introduction

The Internet promised to lower barriers to expression. Anyone with access to a computer and an Internet connection could share their creativity with the world. And it worked— spurring, among other things, the emergence of a new type and generation of art and criticism: the online creator—independent from major labels, movie studios, or TV networks.

However, that promise is fading once again, because while these independent creators need not rely on Hollywood, they are bound to another oligopoly—the few Internet platforms that can help them reach a broad audience. And in the case of those who make videos, they are largely dependent on just one platform: YouTube.

That dependence has real consequences for online creativity. Because YouTube is the dominant player in the online video market, its choices dictate the norms of the whole industry. And unfortunately for independent creators, YouTube has proven to be more interested in appeasing large copyright holders than protecting free speech or promoting creativity. Through its automatic copyright filter, Content ID, YouTube has effectively replaced legal fair use of copyrighted material with its own rules.

These rules disproportionately affect audio, making virtually any use of music risky. Classical musicians worry about playing public domain music. Music criticism that includes the parts of songs being analyzed is rare. The rules only care about how much is being used, so reviewers and educators do not use the “best” examples of what they are discussing, they use the shortest ones, sacrificing clarity. The filter changes constantly, so videos that passed muster once (and always were fair use) constantly need to be re-edited. Money is taken away from independent artists who happen to use parts of copyrighted material, and deposited into the pockets of major media companies, despite the fact that they would never be able to claim that money in court.

Understanding these consequences has never been more pressing, given how many are succumbing to the siren song of automated systems to “fight” online copyright infringement—from the European Union’s Copyright Directive to recent media industry calls for a discussion about “standard technical measures.” In this environment, it is important for lawmakers to understand exactly what such a regime has already wrought. 1

Lawmakers must also understand that the collateral damage of filters would only worsen if they are mandated by law. For one thing, YouTube’s dominance would be assured, as no competitor could afford to pay out to rightsholders the way YouTube does under Content ID, not to mention the costs of creating a similar system. And creators would truly be stuck, with no alternatives that might prioritize their needs over those of major rightsholders. (Most parties involved in Content ID can be content creators, rightsholders, and/or YouTube partners. For simplicity, this paper is always going to refer to those making videos on YouTube as “video creators” and those claiming matches as “rightsholders.”)

This white paper will first lay out how YouTube’s Content ID works and how it interacts with the Digital Millennium Copyright Act (DMCA). Then it will discuss fair use and how Content ID restricts creators far beyond what the law allows. Finally, it will explain how Content ID leverages fear of the law, large media companies, and YouTube’s dominance to prevent creators from changing the system, either by challenging it from within or leaving.

To illustrate the issues raised, this paper includes three case studies of long-time video creators who were interviewed about their experiences with Content ID, filters, and YouTube as a platform. For each creator, it is clear that Content ID dominates their creative experience, as does the belief that they have no choice but to be on YouTube. They are:

• Harry Brewis, known online as “hbomberguy.” Brewis is a video essayist covering a variety of topics, with over 600,000 YouTube subscribers. Also interviewed was his producer, Kat Lo.
• Todd Nathanson, known online as “Todd in the Shadows.” Nathanson is a music reviewer and historian, with over 300,000 YouTube subscribers.
• Lindsay Ellis, a New York Times best-selling author, film critic, and video essayist with over one million YouTube subscribers. Also interviewed was her channel moderator, Elisa Hansen.

Ultimately, it is hard to see any benefit to small, independent creators or viewers in mandating filters. Content ID is so unforgiving, so punishing, so byzantine that it results in a system where those who make videos—“YouTubers”—are so dependent on YouTube for audience access, and promotion by its suggestion algorithm, that they will avoid any action which would put their account in jeopardy. They will allow YouTube to de-monetize their videos, avoid making fair use of copyrighted material they want to use in their work, and endlessly edit and re-edit lawful expression just to meet the demands of YouTube’s copyright filter. The result is that, as a YouTuber with over one million subscribers put it, YouTube is a place where “the only thing that matters is are you smarter than a robot.” 2

YouTube’s Content ID: A Culture of Fear

Content ID is incredibly complicated. Even laid out in its simplest form, it is a labyrinth where every dead end leads to the DMCA. This complexity is not a bug; it is a feature. It prevents YouTubers from challenging matches, and lets rightsholders and YouTube expend as little time and resources dealing with Content ID as possible.

In January 2020, NYU Law School posted a video of a panel called “Proving Similarity,” moderated by Vanderbilt Law Professor Joseph Fishman and featuring Judith Finell and Sandy Wilbur—music experts from opposite sides of the “Blurred Lines” lawsuit, in which the estate of Marvin Gaye claimed Robin Thicke and Pharrell’s song infringed “Got to Give It Up.” The whole point of the panel was to show how experts analyze songs for similarity in cases of copyright infringement, so portions of the songs were played. When the panel was posted to YouTube, it was flagged by Content ID.

While the experts in intellectual property law at NYU Law were certain that the video did not infringe, they ended up lost in the byzantine process of disputing and appealing Content ID matches. They could not figure out whether or not challenging Content ID to the end and losing would result in the channel being deleted. And while it eventually restored the video, YouTube never explained why it was taken down in the first place. 3

All of this is to say that information about how Content ID works comes either from YouTube—which, as NYU Law discovered, is not as helpful as anyone might wish—or from educated guesses made from experiencing the system first hand. Any description of Content ID will by necessity be very involved. If you are confused, then you are in the same position as the YouTubers who deal with Content ID every day. Their livelihoods depend on guessing correctly.

How Content ID Works

There are two sides to Content ID: the side of the creators whose videos are being scanned and that of the rightsholders whose content triggers a match.Here is how YouTube says Content ID works: videos uploaded to YouTube are scanned against a database of files that have been submitted by rightsholders. If there is a match, one of three things happens:

1) The whole video is blocked from view—the public can not see it.

2) The rightsholder “monetizes” the video by having ads placed on it or by claiming the revenue from the ads already on it. In some cases, they will share the revenue with either the video creator or other rightsholders who have matches. 4

3) The video’s viewership statistics will be shared with the rightsholder. 5

Rightsholders can pick one of these three penalties to be automatically applied, requiring no further action on their part unless a video creator wants to challenge the match.

Challenging a match is an involved process. First, the video creator has the option to dispute the match. The rightsholder can either release the dispute, which will eliminate whatever penalty had been automatically applied, or uphold the claim, which will not. Second, the YouTuber can appeal the rightsholder’s choice to uphold the claim. Then the rightsholder can either accept the appeal (which will release the claim and the penalty) or invoke the DMCA takedown process. That is how it is described by YouTube in this chart 6 :

However, this does not capture the lived experience of the few YouTubers who go through the process. Let’s look at just this step:

“Video gets a Content ID claim”: A Content ID claim occurs when the automated algorithm that powers Content ID detects a match between a YouTuber’s video and the database of material submitted by rightsholders. Only certain rightsholders are allowed to add content to the database: those who “own a substantial body of original material that is frequently uploaded by the YouTube creator community.”. 7 This tilts the database and Content ID matches in favor of major movie and TV studios and music labels.

Matches may be made based on mere seconds of material. While YouTube itself does not say on its user support pages how much copyrighted material will trigger a Content ID match, anecdotal evidence puts the threshold under ten seconds. 8 (A ten-hour video of white noise had less than a second claimed by a rightsholder. 9 ) Matches are also made against anything in the database, regardless of any deal made between a rightsholder and a video maker. So, even if a video creator has licensed music for a video—either has paid to use something or was granted permission to use something without paying—it will still trigger a match and thus incur a penalty.

Multiple rightsholders may add the same content to the database. A commercial, a music video, a movie that all use the same song, and so on—will all trigger matches on the same video. This means that multiple entities can make multiple demands on a video, regardless of who the primary rightsholder is. The same white noise video that had less than a second claimed also had five other bad matches made on it. 10 This is because Content ID assumes that anything in the database is under the exclusive control of the rightsholder that added it, rather than something multiple people have the legal right to use.

This means that video creators who did the work of contacting a rightsholder or paid for a subscription that grants them the right to use something will still get punished by Content ID.

Those punishments include, as the YouTube flowchart describes, a video being blocked or money being diverted from the video creator to the rightsholder. Or, a video will have ads put on it against the wishes of the video creator. Depending on circumstances, these penalties can be applied even throughout the period when the video creator is challenging the match.

Finally, Content ID matches can occur at any time. While many matches occur at time of upload, matches can be made when new content is added to the database or whenever the algorithm used by Content ID changes.

If the video has been blocked or monetized for a rightsholder—either depriving the video creator of income or putting ads on a video against their wishes—and the video creator wants people to see it without re-editing, then they have to dispute it. Disputing can mean a blocked video goes back up, but that outcome is not certain. Additionally, while both the match and the penalty are usually done automatically—98 percent of Content ID claims are made automatically—filing an official dispute means drawing the attention of a rightsholder and YouTube. 11 This will likely be the first time in the process a human other than the video creator is involved.

In theory, the rightsholder has 30 days to respond to a dispute. If the rightsholder releases the claim or does not respond, the video is back in control of the video creator. If the rightsholder upholds the claim, the penalty they chose to impose on the video creator continues.

At this point, the video creator can appeal, and then the rightsholder can choose whether to let the claim go, or issue a takedown under the Digital Millennium Copyright Act, or DMCA. Rightsholders can also choose to issue a takedown at any point in this process. The takedown demand will take the video down and result in a “copyright strike” against the video creator. Or, the rightsholder can tell the video creator that a DMCA takedown will be issued in seven days, giving the creator the chance to retract their dispute and simply accept the Content ID match. (The interaction of the DMCA and Content ID will be explored in depth in the next section of this paper.)

The few video creators who bother to challenge claims find simply navigating YouTube’s user interface difficult, especially since it changes frequently and without warning. 12 They are also reminded frequently that they risk losing their accounts entirely if they go through this process.

YouTube says that “overclaiming” can lead to a rightsholder being kicked out of Content ID, but the whole system is mostly automated unless there is a challenge of some kind from a video creator. The only check on Content ID is the willingness of video creators to dispute Content ID matches, a willingness that is undermined by the system itself.

Challenging matches mean drawing a rightsholder’s attention to a video. Once that has been done, the rightsholder can, at any point in this process, file a DMCA takedown. And video creators rightfully fear DMCA takedowns.

Content ID Gets Power From Fear of the DMCA

The DMCA takedown process is very intimidating. There’s a built-in possibility of legal action, the requirement to reveal personal information, and the chance of losing your entire account and having all your videos deleted. As a result, video creators try to avoid it at all costs. By creating a private system that dead-ends in the DMCA if disputed, YouTube has leveraged fear of the law to discourage video creators from challenging Content ID. Therefore, it is important to understand how the DMCA works, and how Content ID has been attached to it, in order to understand why video creators are so willing to submit to Content ID.

The complicated nature of Content ID’s relationship to the DMCA and the consequences of the DMCA prevent many from challenging Content ID. In the case of NYU Law’s panel on copyright infringement, while the experts there were confident that their video was not copyright infringement, they were less able to figure out how challenging the Content ID matches would affect their account under the DMCA. They opted not to challenge the matches until they got an answer on that. They never did. Ultimately, the Content ID matches simply went away without explanation. 13

The safe harbor provisions of the DMCA give online service providers like YouTube immunity from liability for copyright infringement by users. As long as YouTube meets the requirements laid on in Section 512 of the DMCA, it cannot be held liable for its users’ infringing activity. Those requirements include, among other things, expeditious removal of material once a valid takedown notice is received, and a “repeat infringer policy” that terminates the account of those repeatedly accused of infringement. 14

“Valid” takedown notices are those that come from the actual rightsholder or an authorized agent of that rightsholder, have all the identifying information required by the DMCA, and are sent under a “good faith belief” that the use of copyrighted material was not authorized by the “owner, its agent, or the law.” However, the threat of liability and the large damage awards possible in copyright cases encourages YouTube and other service providers to take things down quickly in response, even when the notices are flawed.

YouTube and other services rely on another part of the DMCA to serve as a check on false and abusive takedowns: the counter notice. Under the DMCA, if someone receives a bad takedown notice, they can send a counter notice. If the other party does not respond with a lawsuit within two weeks, the service provider can restore the content without fear of liability. Counter notices must contain all of a creator’s contact information, and the creator must consent to jurisdiction in a United States Federal District Court. 15

In general, large numbers of takedown notices are flawed. Counter notices are rarely used and are not protecting users’ rights as intended. 16 On YouTube, specifically, the platform rarely scrutinizes takedowns, and creators rarely send counter notices. In 2017, YouTube received 2,500,000 takedowns targeting 7,000,000 videos, and rejected or requested more information for takedowns on just 300,000 videos. By contrast, it received only 150,000 counter notices for 200,000 videos. YouTube rejected 2/3 of these counter notices out of hand. 17

In theory, another provision of the DMCA, Section 512(f), should help discourage false takedowns. Section 512(f), allows creators to sue for damages, including attorneys fees, if they are the victim of a bad faith DMCA notice. 18 In practice, it has not served as much of a deterrent.

First, such challenges are expensive and public. What is worse, courts have interpreted Section 512(f) to effectively require subjective knowledge that the takedown is improper. In Lenz v Universal , the Ninth Circuit correctly held that the DMCA requires a rightsholder to consider whether the uses she targets in a DMCA notice are actually lawful under the fair use doctrine. However, the appeals court also held that a rightsholder’s determination on that question passes muster as long as she subjectively believes it to be true.

This leads to a virtually incoherent result: a rightsholder must consider fair use, but has no incentive to actually learn what such a consideration should entail. After all, if she doesn’t know what the fair use factors are, she can’t be held liable for not applying them thoughtfully. Particularly relevant to the subject of this paper, Judge Milan Smith noted in his dissent that “in an era when a significant proportion of media distribution and consumption takes place on third-party safe harbors such as YouTube, if a creative work can be taken down without meaningfully considering fair use, then the viability of the concept of fair use itself is in jeopardy.” 19 If the sender of an improper takedown cannot suffer liability under Section 512(f) no matter how unreasonable her belief, the Lenz decision effectively eliminates Section 512(f) protections for even classic fair uses upon which creators rely. 20

One of the other requirements for safe harbor protection under the DCMA is the aforementioned “repeat infringer policy,” that terminates the account of those repeatedly accused of infringement. YouTube fulfills this requirement with its infamous “three strikes”rule. On YouTube, getting three copyright strikes—in other words, having a video removed three times with an official DMCA notice—within 90 days will lead to a creator losing their account, having all their videos removed, and losing the ability to make new channels.

How Content ID Leverages Fear of the DMCA

Losing one’s account, having one’s videos deleted, or taking the chance on a lawsuit against a better-funded and resourced rightsholder are all too great a risk for most independent video creators. The DMCA hangs over the entire Content ID process—in comparison to the DMCA’s possible penalties, Content ID seems like a better bet for video creators, no matter how unfair it actually is.

On the one hand, it seems like YouTube is merely advising video creators of the risks when it repeatedly reminds creators that disputing Content ID matches could result in a DMCA claim, a strike, and, if enough strikes accumulate, the loss of their channel. 21 On the other, it also seems YouTube incentivizes video creators to accept unfair restrictions and penalties by holding over their heads the chance of losing their entire account under the DMCA.

Remember, if a video creator disputes the Content ID claim and the rightsholder—who has nothing to lose—rejects the dispute, the video creator can appeal. But if the rightsholder objects to the appeal, the only option left is a DMCA takedown, i.e., a copyright strike. Moreover, YouTube gives rightsholders an additional club by giving the option of a “scheduled copyright takedown notice.” 22 With this, rightsholders can let a video creator know that if they do not give up on their dispute or appeal within seven days, they will get a DMCA takedown and therefore a copyright strike.

Rightsholders also have the right to file a DMCA takedown at any point in the Content ID process. Disputing or appealing Content ID decisions may increase the chance of this happening, because it calls the rightsholders’ attention to the video in question.

And, as one YouTube creator noted, that is “is especially a problem when the video is critical.” 23 One of the case studies in this paper received DMCA takedowns only after he challenged Content ID claims. 24 Disputing a claim opens the creator up to DMCA abuse—that is, the use of DMCA takedowns to remove non-infringing material in order to silence criticism or for some other, non copyright-related, reason. This leads to the video being blocked and the video creator to get a copyright strike. Therefore, many video creators have made the calculation that simply accepting a Content ID match and either acquiescing to the penalty or re-editing the video is the safest course of action.

As another YouTube creator sums up the situation: “People are so afraid of being deplatformed or losing that income that it is sort of a culture of fear.” 25

Case Study 1: hbomberguy

Harry Brewis, known online as “hbomberguy,” is a video essayist with over 600,000 YouTube subscribers. In July 2020, he posted a video called “RWBY Is Disappointing, And Here’s Why,” which has been viewed over 1.5 million times. The review criticizes an animated series called RWBY, using clips as part of that criticism. However, prior to posting the video, Brewis and his producer, Kat Lo, found themselves dealing with a very complicated Content ID situation.

Because of the length of the video—two and a half hours—Brewis uploaded 20-minute chunks of it to YouTube as he was editing, so that he could see what triggered Content ID and make changes. Each portion of the video passed Content ID. But, after uploading the full video, Brewis saw it come back with one or two Content ID matches. He re-edited the video, only to find new matches. He repeatedly edited and uploaded the video, getting a small number of matches every time. “The shocking part was every time it happened I thought, ‘Oh that’s great, it only got hit twice, that’s really encouraging’ and then the next one would get hit three times,” said Brewis.

Part of the problem was that the show Brewis was criticizing, RWBY, is owned by a company called Rooster Teeth, which has set Content ID to automatically block any video with a match. Rooster Teeth tells users to dispute the match— a response that, as noted, is intimidating to creators and actively discouraged by YouTube. If creators do dispute, Rooster Teeth either monetizes the video for itself or “removes the claim,” based on its own determination of whether the use is lawful. 26 Rooster Teeth monetized at least one of Brewis’s drafts of the video, meaning that it would make money off of the review and Brewis, who planned to donate the proceeds, would not.

Eventually, Brewis manually checked every part of his video to make sure no clip was over five seconds. Overall, the process of re-editing the video to pass Content ID took a week and a half of extra work and cost $1,000 in fees to a lawyer to assess the clips. Brewis noted that YouTube’s own recommendations make this problem very clear. “This is my favorite part of the whole process,” said Brewis, heavy with irony. “YouTube’s system is such a mess that when you are uploading the video, it says ‘upload it unlisted and wait a while to see if it gets picked up because it will take a while.’ It just warns you, ‘This will be strange.’”

“A big problem on top of that is the appeals process. Where if you say, ‘No, this is fair use,’ the person who holds the copyright gets to decide if it is fair use,” said Brewis. He and his producer also emailed YouTube. As a “partner” channel with YouTube, they thought they could contact a human representative and ask for help. The partner program gives YouTube creators access to a suite of resources—access to editing tools, the stripped-down version of Content ID, and, in theory, greater support from YouTube’s Creator Support teams. YouTube channels get “partner” status through meeting a threshold for subscribers and hours watched, as well as a few other requirements like having the channel linked to Google’s ad system, Adsense. 27 When Brewis reached partner status, he was contacted by someone who worked for YouTube who claimed to be “his” representative at the company. But during this problem, Brewis contacted this person, only to be told that they only rarely help people and that direct contact with a YouTube representative only lasts for six months after reaching partner status.

This experience shaped the entire video-making process for Brewis. He has an upcoming video timed to an anniversary, and he “has” to finish a draft and upload it to YouTube weeks before the scheduled publish date because “If I try uploading it on the day, it might not be allowed.”

Brewis’s final word on Content ID? “It cost me a lot of time, and revenue, and emotional damage. If Content ID were a person, I would have taken him to court.”

How Content ID Dictates Expression on YouTube: Practically, Fair Use Has No Effect

Content ID pervades the lives of YouTube creators. Which makes sense because Google claims 98 percent of copyright claims are handled through Content ID. 28 So, using Google’s own numbers, if YouTube received 2,500,000 million DMCA takedowns in 2017, that means 122,500,000 claims were handled by Content ID that year. 29

Content ID scans its creations when they are uploaded and periodically thereafter. It can prevent a video from ever being seen or from making any money. What and how Content ID makes matches therefore determine what viewers get to see—not free expression, fair use, or what a creator thinks makes for the strongest video.

It is important to underscore a few key points about fair use because it is central to much of what YouTube creators do. The Internet opened up the world of criticism and commentary to anyone with a computer. Those who were traditionally locked out of traditional careers in criticism or simply wanted to be their own boss have found a place online. And those who want to make parodies or mashups or other transformative works have tools and audiences never before available to them.

Fair use, enshrined in law as Section 107 of the Copyright Act, allows the creators to do this work without getting permission or paying a rightsholder. Whether or not a use is “fair” is a context-dependent determination made based on four factors:

(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

(2) the nature of the copyrighted work;

(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

(4) the effect of the use upon the potential market for or value of the copyrighted work. 30

The first factor often turns on whether a use is “transformative,” i.e, whether it serves a new and different purpose from that of the original. Criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, and research are all classic fair uses that can be found on YouTube 31 And because YouTube is a video-streaming site those uses often involve bits of copyrighted audio and video material.

The second factor considered whether the original work is more or less creative, and also whether it is published or unpublished. Where a work is long since published and/or highly factual, this factor will tend to tilt in favor of fair use.

The third factor considers whether the user has borrowed more or less than what is needed to serve the purpose identified in the first factor. Importantly for this analysis, the third factor does not have a bright-line limit on how much copyrighted material can be used—you can take as much or as little as you need for your purpose. So while the use may be a few seconds, as for some kind of music criticism, it can also be the whole piece, such as in a music parody. 32

Finally, the fourth factor concerns whether the use caused harm to the rightsholder by replacing the original work in the market. Crucially, the “harm” considered here does not include harm caused by parody or a negative review that suppresses demand for the original by pointing out its flaws. 33 Instead, it considers whether the use in question could substitute for the original.

Let us look at the ways in which Content ID undermines the first, third, and fourth factors in particular, thereby restricting online content beyond what copyright law actually requires.

Transformative Music Content Suffers Because Content ID Disproportionately Affects Audio Material

While the law does not make fair use of music more difficult to prove than fair use of any other kind of work, Content ID does.

The key problem is one of mechanics. It is easier for Content ID to find a match just on a piece of audio material compared to a full audiovisual clip. And then there is the likelihood that Content ID is merely checking to see if a few seconds of a video file seems to contain a few seconds of an audio file.

For an example of the mechanical problem, classical musicians filming themselves playing public domain music— compositions that they have every right to play, as they are not copyrighted—attract many matches. 34 This is because the major rightsholders who have qualified to join Content ID have put many examples of copyrighted performances of these songs in the system. It does not seem to matter whether the video shows a different performer playing the song—the match is made on audio alone. This drives a lawful use of material off YouTube.

Similarly, music that is part of a larger work will be claimed, but the audiovisual work as a whole will not. So creators commenting on a film that includes music will still get a match for that music, but not the film. 35 It is therefore easier to choose to include parts of the film that have no music, even if it is not the best illustration of their point. Or, as YouTube itself advises, to remove or replace the music, which could mean compromising the point being made about that part of a film. YouTube even gives creators a tool set that makes removing portions of a video, removing music, or replacing music easier. 36

It obviously does not matter to Content ID if the music is being transformed. While those commenting on film or TV may be able to find a way to get their point across without music, music reviewers and historians cannot. At least, not in a way that is clear and interesting for the audience.

Content ID’s sensitivity to audio material and the large number of musical partners that choose to monetize matches makes it difficult to succeed on YouTube in anything music-related. Especially for those just starting out, who cannot rely on the external revenue streams that more-established creators have built (sponsorships, crowdfunding, etc.).

The difficulty of getting music clips past Content ID explains the dearth of music commentators on YouTube. 37 It is common knowledge among YouTube creators. Ellis, not normally a music reviewer, did not even bother trying to put ads on a video she did about music because “this is why you don’t make content about music”—the advertising revenue is going to go to the labels. 38

A whole genre of art is covered far less than others simply because Content ID makes more music matches than audiovisual ones. While fair use would protect music reviews as transformative, Content ID makes doing them on YouTube nigh impossible.

Creators Edit to Content ID’s Time Constraints

Content ID only determines whether a few seconds of a video matches a few seconds of something in its database. So while fair use has no bright-line rule about how much a creator can or cannot use, Content ID does. And it’s just a few seconds. 39

Because Content ID matches can result in either a rightsholder getting the revenue of the video or a video being blocked (also resulting in a loss of revenue for a creator), there is every incentive for video creators to simply make videos that will not get Content ID matches.

Creators know that, if a video is blocked because of a content ID match, they will suffer. It does not matter if they dispute it and win; they need to avoid it happening in the first place. Internet publishing is time-sensitive, and an ill-timed block can severely impact views and, therefore, revenue. To mitigate this risk, YouTubers again and again make creative decisions based not on what will strengthen their video, but on what will allow them to pass Content ID.

Avoiding a match is especially important because, although Content ID claims to have a timeframe for disputes and appeals, that claim does not comport with the practical experience of both Nathanson and Ellis. For Brewis’s producer, Kat Lo, the potential delay created an additional concern: “The thing we had to prepare for was the circumstance where if it got Content IDed and blocked after it had been out for a day, it would completely tank the views,” said Lo. “So it would not get the views it normally would,” which would cost them income and placement in search results and recommendations. 40

Therefore, creators have to ensure that the copyrighted material they use is under Content ID’s threshold for matches. YouTubers report keeping their clips under seven seconds if possible, under ten at most. “I understand fair use as if I’m using copyrighted material for commentary, or critique, or review then I can use it. That’s how I understand it legally. Practically, it has absolutely no effect on what I do,” said music reviewer Nathanson. 41 While every clip he uses is for commentary or criticism, the most important factor in his calculations is not fair use but whether the clip will get past Content ID.

Thus, instead of showing audiences exactly what they are criticizing or the best illustration of an issue in an educational setting, creators pick an example that is under ten seconds long. Their comments are thus built around Content ID’s restrictions, not what they have the legal right to use.

Rather than wait the indeterminate time period for a Content ID dispute to be resolved or chance a DMCA takedown and resulting copyright strike, YouTube creators will also, like Brewis in the case study above, endlessly edit and re-edit videos until they pass Content ID. In some cases, they will re-edit videos that had been available for years—and passed Content ID all that time—but then suddenly received new claims.

Some of those new claims may be the result of new works being added to the Content ID database, or changes in the Content ID algorithm. 42 For creators who have hundreds of videos, this can mean weeks of work either re-editing or disputing the claims. 43

Content ID Directs Money Away From Creators and to Rightsholders

When a rightsholder joins Content ID, it gets to choose what penalty is automatically applied to any video that contains its copyrighted material. Ninety percent of Content ID partners choose to automatically monetize a match—that is, claim the advertising revenue on a creator’s video for themselves—and 95 percent of Content ID matches made to music are monetized in some form. 44

That gives small, independent YouTube creators only a few options for how to make a living. Creators can dispute matches and hope to win, sacrificing revenue while they do and risking loss of their channel. Fewer than one percent of Content ID matches are disputed. 45

Those who have large enough followings can use alternative platforms like Patreon, which allows fans to directly contribute to their favorite creators, often with tiers that give access to extras, merchandise, or so on for higher donations. YouTubers also get sponsorships directly from companies, sell merchandise, or share affiliate links. 46 As an example, Ellis has over 1,000,000 subscribers on YouTube. She estimated she makes five times as much from Patreon and twice as much from sponsorships as she does from YouTube. 47

But even that can come with dangers. At one point, a Content ID match put ads on a video that Ellis had purposefully not monetized, since she had a sponsorship deal that precluded other promotions. Content ID’s automation potentially put her in violation of her contract. 48

Another option available to YouTube creators of a certain size is simply letting the money go. Nathanson chose for years to let major labels—he reviews mostly well-known artists and songs from major labels—claim all the advertising revenue on his reviews through Content ID. Because he built a loyal fanbase prior to his move to YouTube, they have followed him to Patreon. 49 This is the only reason he can afford to let Content ID divert advertising revenue away from him and to the rightsholders whose work he critiques.

This is a patently absurd result. The law does not require critics to get permission from or share revenue with the rightsholder of the work they are critiquing. Fair use does not let rightsholders claim market harm in court from a review. But Content ID does let rightsholders claim the revenue from them.

While both Ellis and Nathanson have the right, under fair use, to use copyrighted material without paying rightsholders, Content ID routinely diverts money away from creators like them to rightsholders in the name of policing infringement. While fair use is an exercise of your First Amendment rights, Content ID forces you to pay for that right. WatchMojo, one of the largest YouTube channels, estimated that over six years, roughly two billion dollars in ads have gone to rightsholders instead of creators. 50

YouTube does not shy away from this effect. In its 2018 report “How Google Fights Piracy,” the company declares that “the size and efficiency of Content ID are unparalleled in the industry, offering an efficient way to earn revenue from the unanticipated, creative ways that fans reuse songs and videos.” 51 Hansen, who is employed by Ellis to moderate and manage her channel, said that she felt that YouTube sells Content ID to the entertainment industry as a way of making money off of others’ transformative works and that YouTube discourages disputes so it can keep paying large rightsholders. 52

The final option for creators is simply editing videos until no Content ID matches occur, guaranteeing that they get the advertising revenue from their hard work.

Content ID prevents a whole medium from being meaningfully critiqued and taught, penalizes creators for using more than a few seconds of a work—no matter how they use it, and diverts money away from creators and to righsholders. All of these things are incompatible with fair use.

Case Study 2: Todd in the Shadows

Todd Nathanson is a music reviewer and historian who makes videos reviewing hit songs, going through the history of one-hit wonders, and dissecting the history and quality of albums that ended musicians’ careers. Online he is known as Todd in the Shadows and has over 300,000 YouTube subscribers.

Nathanson has been making videos online for almost 11 years, starting in September of 2009. He switched to YouTube when his previous platform, Blip.tv, went defunct. He has noticed a clear change from Blip to YouTube, saying, “On Blip we were largely protected from copyright. On YouTube it is a constant presence in my life, Content ID and the DMCA.”

Nathanson has had no help from YouTube, explaining that the system “is very byzantine and it’s changed many times and they don’t inform us of how things work.” (Another Youtuber used the same term). So his understanding of what to do is “100% from other YouTubers and almost nothing from YouTube.”

His understanding is that Content ID is an algorithm that scans videos for copyrighted material and “if it’s more than whatever arbitrary length of time they have chosen this week, then you will get flagged.” He can tell when there has been a major change to Content ID because hundreds of videos that had previously passed are flagged. While he edits newer videos to pass Content ID—“I do try and limit how much I use of copyrighted material just trying to keep on the right side of Content ID, as I think do most people who do what I do”—older videos have been taken down and only some of them have been reinstated. He says, “If I get flagged I can claim I was using it for fair use, but I don’t think they care.”

Nathanson says “I try to use clips as short as possible. Which affects what I say, how I say things, how I have to word things. It’s about how much I can get past Content ID, not how much I want to discuss, which is a frustration.”

But Content ID still claims the revenue generated by advertisements on the video for someone else. Explains Nathanson:

Every single one of my videos will get flagged for something and I choose not to do anything about it, because all they’re taking is the ad money. And I am okay with that, I’d rather make my videos the way they are and lose the ad money rather than try to edit around the Content ID because I have no idea how to edit around the Content ID. Even if I did know, they’d change it tomorrow. So I just made a decision not to worry about it.

Nathanson is lucky enough to be able to make a living on Patreon instead of from YouTube’s advertising, but even so must rely on YouTube. Asked whether he has the choice to leave, he answers, “No, obviously not. I had Blip.tv for a while, and that came with its drawbacks. It was less public so you got less views. But now there is absolutely no way I could do this without YouTube.”

Creators Cannot Leave or Meaningfully Challenge the System: Where Am I Supposed to Go?

Between the size of YouTube and the confusing and intimidating nature of Content ID, creators feel they have no choice but to acquiesce to whatever YouTube demands.

For example, one YouTuber had to rebuild his channel after being laid off from making videos for the videogame website Kotaku. He now makes the same videos himself as an independent small business. Having gone through the process of reestablishing a YouTube channel, he said he is even more cautious about losing the new one he has built. 53 He says that for the kinds of videos he makes, there is nowhere but YouTube. Ellis echoed that sentiment when asked if she had a choice of platforms. “No,” she said. “Where am I supposed to go?” 54

Creators Have Been Conditioned Against Challenging Content ID

YouTube creators feel they do not have any leverage in challenging Content ID. There is little communication from YouTube itself—creators mentioned a need for a dedicated helpline, with a human being on the other end, as a way to improve the system.

The most success creators have is when they go outside the system itself. Ellis found the email for someone at YouTube who helped for a while. 55 Brewis tweeted about the problems he was having and was contacted by the rightsholder. 56 NYU Law School eventually had its matches vanish after it also reached out to YouTube through personal connections. 57

For creators with many videos who get large numbers of claims every time Content ID changes, disputing becomes a game in which they have to make sure they are never in danger of crossing over into more than three strikes in a 90-day period and therefore in danger of losing their account. 58

The only check on Content ID is the willingness of YouTubers to dispute Content ID matches, a willingness, remember, that is undermined by the system itself. YouTube only allows certain rightsholders to add material to the Content ID database, from which matches originate. So it is not small creators guarding their livelihoods who benefit from Content ID. Instead, it is the largest media companies—those with a lot of resources—that small, independent creators cannot hope to match. The same imbalance that prevents counter notices under the DMCA is amplified under Content ID. And then, fear of the DMCA is used to buttress it.

The desire to fight Content ID simply is not there. “It’s such a risky thing to consider doing, especially when your livelihood is on the line, that I’ve never let anything get that far,” said Brewis. 59

All YouTube creators interviewed said they rely on a community of fellow creators to help them navigate the system. But while Ellis and her moderator—also a YouTuber—urge other creators to dispute bad Content ID claims, most people are simply too scared to take the chance. Ellis summed up the situation as “[t]hey try to scare you out of disputing Content ID claims.”

And it succeeds. YouTube reported in 2018 that 98 percent of copyright issues are handled through Content ID, not DMCA notices and counter-notices. Disputes are rare. YouTube touts that “fewer than 1 percent of Content ID claims are disputed and of that number, over 60 percent resolve in favor of the uploader.” 60

Lack of Meaningful Competition Keeps Creators From Leaving YouTube

There is a terrible, circular logic that traps creators on YouTube. They cannot afford to dispute Content ID matches because that could lead to DMCA notices. They cannot afford DMCA notices because those lead to copyright strikes. They cannot afford copyright strikes because that could lead to a loss of their account. They cannot afford to lose their account because they cannot afford to lose access to YouTube’s giant audience. And they cannot afford to lose access to that audience because they cannot count on making money from YouTube’s ads alone, partially because Content ID often diverts advertising money to rightsholders when there is Content ID match. Which they cannot afford to dispute.

Content ID is restrictive, confusing, and difficult to navigate. But video creators know there is nothing that can compete.

YouTube is the largest video streaming website—by far. As of September 2019, YouTube averaged 163 million monthly average users, compared to Netflix’s 46 million, Hulu’s 26 million, Amazon Prime’s 16 million, and Vimeo’s 15 million. 61 Almost 20 percent of Americans watch YouTube for more than three hours a day. 62

According to a study of the online creative economy, in 2017, over two million U.S. creators posted on YouTube, earning about four billion dollars per year. 63 Between 2016 and 2017, the number of U.S. creators grew by 81 percent and the amount of money they earned grew by 21 percent. None of the other platforms included in this study had anywhere near YouTube’s growth in number of creators. 64

Ellis and Nathanson both became reliant on YouTube when the competitor service they were on was shut down in 2015, cementing YouTube’s dominance. In 2010, 24 hours of video was uploaded to YouTube every minute. 65 Now, it is more than 500 hours of video per minute. 66 In 2010, more than two billion videos were being watched per day. 67 Now, that number is over five billion. 68

Ironically, creators need YouTube because they cannot rely on making money from YouTube. They need the audience YouTube provides in order to amass enough fans to be attractive to sponsors or convert some of that audience to pay them directly through Patreon or a like service because of YouTube’s rules about monetization and the way Content ID diverts advertising revenue away from them.

YouTube’s dominance also means that the decisions it makes—how Content ID works, what policies it enacts, what kinds of videos it promotes, what it demonetizes 69 —become de facto norms for the entire online video industry.

Case Study 3: Lindsay Ellis

Lindsay Ellis is a video essayist and New York Times best-selling author with over one million YouTube subscribers. She has been making videos online for about 12 years, starting out on a platform called Revver, which no longer exists, and then Blip.tv, which also no longer exists, and was then “shunted on to YouTube for lack of better options.”

Here is how Ellis describes Content ID:

It’s almost like a game. You don’t know exactly what the rules are, but you have a general idea of what the rules are. Unless you are resigned to going completely unmonetized, which I did do for a recent video because it just had too many clips in it. So it’s an issue of uploading your video, re-editing, and doing it again and again until it doesn’t ping Content ID.

Ellis eventually found an email address for a YouTube help desk unrelated to Content ID that was a) answered by a human who was b) willing to push the disputes up the chain. Some other claims against Ellis’s channel were resolved not through YouTube’s appeals system, but by getting the claimants’ contact information and sending letters directly to them explaining that Ellis was willing to assert fair use in court, which got the claims released. Ellis ended up going outside YouTube’s system to fix problems generated by the system, which is dysfunctional.

Ellis’s manager, Elisa Hansen, eventually learned that once a dispute is denied, you have seven days to withdraw the appeal of a dispute denial and avoid it becoming a DMCA claim and therefore a strike. But, says Hansen, that knowledge did not come from anyone at YouTube but through “trial and error. We took that risk.” Hansen says that after a major change to the Content ID algorithm, it took three weeks to deal with the new claims that came in. During our interview, Ellis and Hansen also discovered that YouTube had changed its system again, and they struggled to figure out how to look up how many Content ID claims they had and what they were.

Ellis and Hansen have a nuanced understanding of fair use. But Ellis feels like she had to become a fair use “unexpert” because “it’s never about fair use, it’s about beating Content ID.” Hansen added, “If I understand fair use but I’m still losing these appeals, what does it matter? I’m becoming an expert in how to use the YouTube system.”

For Ellis and Hansen the most frustrating parts of Content ID are the lack of human review and YouTube’s failure to follow its own rules. For example, after appealing a denial of a dispute, YouTube advised them that the claim would be released if the rightsholder did not respond within 30 days. Instead the claim lingered far past that month.

Ellis’s account sat with hundreds of Content ID claims for years because they did not know they could contest them. Eventually, once they decided to assert fair use, risking the DMCA strikes and litigation, they found that they could have been getting the revenue from advertisements the whole time. “We were scared to do it because of the way YouTube wants you to think it works. Like, ‘are you sure you want to do this? You could lose your channel,’” said Hansen.

The only advice they can give other YouTubers is “make the clips shorter or cut out a few frames or put licensed music under the video.” Ellis says she finds herself wondering “why I bothered playing by the rules all these years because fair use doesn’t matter. Content ID is all that matters.”

Because of the way that YouTube pays, Ellis considers YouTube mostly a promotional tool, rather than a viable source of income. Ultimately, says Ellis, “Content ID is pinging clips I am actually discussing, which is a pretty clear case of fair use. Or it would be, if they looked at that, but they don’t.”

The restrictions that Content ID puts on expression—and the pervasiveness that YouTube’s dominance gives those restrictions—not only harm creators, they harm culture as a whole.

The Internet was supposed to open up the world of creativity, not only lowering barriers of entry for creators but expanding the options for the rest of us. With so much of the creative arts dominated by just a few large companies—the very few music labels, movie studios, and TV networks—we were supposed to have more of a say in what we saw, instead of those few gatekeepers. We were also supposed to get more information from a diversity of voices. Criticism and commentary from those who traditionally could not get jobs doing that work in traditional outlets.

We all have limited time and money, and we should be able to choose how to spend both. A movie review, for example, helps people decide whether they want to spend their hard-earned money and/or time on a ticket, DVD, or stream of it. But in the current system, takedowns and filters become barriers to informed decisions.

When dealing with the Internet, it is all too easy to assume that problems can be solved by some novel technology. Calls for platforms to do more about copyright infringement, either through mandating action or encouraging private agreements between rightsholders and tech companies, often lead to copyright filters like Content ID.

While rightsholders often complain about YouTube, the new generation of creators trying to independently make and share work online is even more trapped and exploited by the platform. We must take care not to implement laws, regulations, or incentives that are easy for YouTube to comply with by passing the buck to the creators whose work fuels its site.

Nathanson has only one answer to the question of what could make filters like Content ID better:

“I wish Content ID wasn’t there. That is basically the long and short of it. I know YouTube has a copyright infringement problem with legit abusers, but for my purposes I’d like it gone. That’s the only thing I can think of to say."

See: Katharine Trendacosta and Corynne McSherry, Copyright and Crisis: Filters Are Not the Answer, EFF (April 21, 2020), available at https://www.eff.org/deeplinks/2020/04/copyright-and-crisis-filters-are-not-answer (Accessed September 29, 2020); Christoph Schmon, Copyright Filters Are on a Collision Course With EU Data Privacy Rules, EFF (March 3, 2020), available at https://www.eff.org/deeplinks/2020/02/upload-filters-are-odds-gdpr (Accessed September 29, 2020).  ↩

Lindsay Ellis and Elisa Hansen, Interview with author, July 31 2020.  ↩

Engelberg Center on Innovation Law & Policy NYU School of Law, How Explaining Copyright Broke the YouTube Copyright System, available at

https://www.law.nyu.edu/centers/engelberg/news/2020-03-04-youtube-takedown?fbclid=IwAR1ruv0KnYwVawITN1uEv9J5FCxzVkPEUySSVEEZ7S78eeKFRmOX2tefnNA (last accessed Nov. 25, 2020).   ↩

It is worth noting that the phrasing around this option can get a little confusing. Video creators will often lump Content ID monetization in with “demonetizing.” Demonetizing is when YouTube prevents ads from even appearing on a video, usually because the subject is one advertisers do not want to be associated with or because a video has been reported for having such content. (This is a tactic, much like DMCA abuse, used to harm creators whom someone disagrees with or wants to harass in some way.) Content ID monetization still places ads on a video, but the video creator’s share of the revenue diminishes or vanishes. In both cases, they may see no money from the video they have made, but the difference is in whether or not there are ads at all.   ↩

Content ID Overview, YouTube Creator Academy, available at https://creatoracademy.youtube.com/page/lesson/respond-to-content-id-claims_copyright-content-id-overview_image?cid=respond-to-content-id-claims&hl=en (last accessed November 30, 2020).  ↩

Content ID Overview, YouTube Creator Academy, available at https://creatoracademy.youtube.com/page/lesson/respond-to-content-id-claims_copyright-content-id-overview_image?cid=respond-to-content-id-claims&hl=en (last accessed November 30, 2020)  ↩

YouTube Help, How Content ID Works, Support.google.com,

https://support.google.com/youtube/answer/2797370?hl=en&ref_topic=9282364 (last visited Sep 29, 2020)  ↩

From our interviews, Ellis and Nathanson say they keep their clips to under ten seconds to pass Content ID. Brewis keeps his to under five.  ↩

EFF Takedown Hall of Shame, “Ten Hours of Static Gets Five Copyright Notices,” Electronic Frontier Foundation,

https://www.eff.org/takedowns/ten-hours-static-gets-five-copyright-notices, (last visited Sep 29, 2020).  ↩

How Google Fights Piracy at 24.  ↩

During the author’s interview with Lindsay Ellis and her moderator Elisa Hansen, Ellis and Hansen found that the interface had changed since they last used it and could not even navigate to see how many Content ID claims Ellis’ channel had. (Ellis and Hansen interview.)  ↩

Engelberg Center on Innovation Law & Policy NYU School of Law  ↩

17 USC § 512.  ↩

17 USC § 512(g)(3).  ↩

See Jennifer M. Urban, Joe Karaganis, & Brianna Schofield, Notice and Takedown in Everyday Practice 44 (UC Berkeley Public Law Research Paper No. 2755628, Mar. 24, 2017), https://ssrn.com/abstract=2755628.  ↩

How Google Fights Piracy, 30-31.  ↩

17 USC § 512(f).  ↩

Lenz v. Universal, 815 F.3d 1145, 1160 (9th Cir. 2016)  ↩

Ellis and Hansen interview.  ↩

What is a scheduled copyright takedown request?, Support.google.com, https://support.google.com/youtube/answer/9167045?hl=en (last visited November 30, 2020).  ↩

Harry Brewis and Kat Lo, Interview with author, September 23, 2020  ↩

Nathanson interview.  ↩

Ellis and Hansen interview.   ↩

Content Usage Guidelines, Roosterteeth (2020),

https://support.roosterteeth.com/hc/en-us/articles/360045358831-Content-Usage-Guidelines (last visited Sep 29, 2020).  ↩

YouTube Partner Program overview & eligibility - YouTube Help, Support.google.com, https://support.google.com/youtube/answer/72851?hl=en (last visited Sep 29, 2020).  ↩

That is the most conservative estimate, since the 2,500,000 actually affected 7,000,000 videos. But for the sake of giving the benefit of the doubt, we are using the lower number.  ↩

17 USC 107  ↩

Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 584 (1994).  ↩

Id at 592, citing Fisher v. Dees, 794 F.2d 438 (9th Cir. 1986).  ↩

Micheal Andor Brodeur, Copyright Bots and Classical Musicians Are Fighting Online. The Bots Are Winning. Washington Post (May 21, 2020),

https://www.washingtonpost.com/entertainment/music/copyright-bots-and-classical-musicians-are-fighting-online-the-bots-are-winning/2020/05/20/?arc404=true (last visited Sep 29, 2020).  ↩

Taylor B Bartholomew, The Death of Fair Use in Cyberspace: YouTube and the Problem With Content ID, 13 Duke Law & Technology Review 66-88, 84, (2015).  ↩

Katharine Trendacosta, A Tool That Removes Copyrighted Works Is Not a Substitute for Fair Use, EFF (January 20, 2020),

https://www.eff.org/deeplinks/2020/01/tool-removes-copyrighted-works-not-substitute-fair-use (last visited Sep 29, 2020).  ↩

Todd Nathanson (@ShadowTodd), Twitter, November 7, 2019, 10:05 PM, https://twitter.com/ShadowTodd/status/1192684569427877888.  ↩

Nathanson and Ellis keep their uses to under ten seconds, Brewis to under five.  ↩

Brewis and Lo interview.  ↩

Todd Nathanson, Interview with author, September 9, 2020.  ↩

See: Todd in the Shadows (@ShadowTodd), Twitter, May 2 2019, 1:05 PM. https://twitter.com/ShadowTodd/status/1124766905057841152  ↩

How Google Fights Piracy, 14, 25.  ↩

Id at 28.  ↩

BBC, Evan Edinger: The Five Ways YouTubers Make Money, BBC (December 17, 2017), http://www.bbc.co.uk/newsbeat/article/42395224/evan-edinger-the-five-ways-youtubers-make-money (last visited Sep 29, 2020).  ↩

Lindsay Ellis (@thelindsayellis), Twitter, October 23, 2019, 11:52 AM, https://twitter.com/thelindsayellis/status/1187079685705879552.   ↩

Todd in the Shadows (@ShadowTodd), Twitter, November 7, 2019, https://twitter.com/ShadowTodd/status/1192684000306970625  ↩

See WatchMojo, E Are Rights Holders Unlawfully Claiming Billions in AdSense Revenue?

(May 9, 2019), https://www.youtube.com/watch?v=-w1f3olwqcg&feature=youtu.be

(last visited Sep 29, 2020).  ↩

How Google Fights Piracy, 25.  ↩

Chris Person, Interview with author, September 23, 2020.  ↩

Ellis interview.  ↩

Ellis interview  ↩

See WatchMojo, Exposing Worst ContentID Abusers! #WTFU (May 2, 2019), https://www.youtube.com/watch?v=Gbs9UVelEfg (last visited Sep 29, 2020).  ↩

Brewis and Lo interview  ↩

How Google Fights Piracy, 28 (2018).  ↩

Amy Watson, Most Popular Video Streaming Services in the United States as of September 2019, by Monthly Average Users, Statista (Aug 24, 2020), https://www.statista.com/statistics/910875/us-most-popular-video-streaming-services-by-monthly-average-users/ (last visited Sep 29, 2020).  ↩

US Media Consumption Report 2019, Attest (2019), available at https://www.askattest.com/original-research/us-media-consumption-report-2019 (last visited Sep 29, 2020).  ↩

Robert Shapiro and Siddhartha Aneja, Taking Root: The Growth of America’s New Creative Economy, Re:Create (2019), 1, available at https://www.recreatecoalition.org/wp-content/uploads/2019/02/ReCreate-2017-New-Creative-Economy-Study.pdf.  ↩

Ben Parr, YouTube Is Huge: 24 Hours of Video Now Uploaded Every Minute, Mashable (March 17,2010), available at https://mashable.com/2010/03/17/youtube-24-hours (last visited Sep 29, 2020).  ↩

J. Clement, YouTube: Hours of Video Uploaded Every Minute as of May 2019, Statista (Aug 25, 2020), https://www.statista.com/statistics/259477/hours-of-video-uploaded-to-youtube-every-minute (last visited Sep 29, 2020).  ↩

Ben Parr, YouTube Surpasses Two Billion Video Views Daily, Mashable (May 16, 2010), available at https://mashable.com/2010/05/16/youtube-2-billion-views (last visited Sep 29, 2020).  ↩

Grant Eizikowitz, How to Get a Billion Views on YouTube, Business Insider (April 30, 2018), available at

https://www.businessinsider.com/how-to-get-billion-views-viral-hit-youtube-2018-4 (last visited Sep 29, 2020).  ↩

See Rachel Dunphy, Can YouTube Survive the Adpocalypse?, Intelligencer (December 28, 2017),

https://nymag.com/intelligencer/2017/12/can-youtube-survive-the-adpocalypse.html (last visited Sep 29, 2020).  ↩

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Article Contents

Introduction, limitations.

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How does the public perceive music copyright law? A content analysis of YouTube videos on the Flame v Perry ‘Dark Horse’ case

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• Figures & tables
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Ann C Luk, How does the public perceive music copyright law? A content analysis of YouTube videos on the Flame v Perry ‘Dark Horse’ case, Journal of Intellectual Property Law & Practice , Volume 17, Issue 9, September 2022, Pages 704–726, https://doi.org/10.1093/jiplp/jpac066

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Ann Luk is a lecturer in Law at the University of Kent, Darwin Road, Canterbury, UK. She specializes in interdisciplinary study, specifically between law and psychology.

This study undertakes a qualitative content analysis of YouTube videos on the Flame v Perry ‘Dark Horse’ case in order to analyse public discussion regarding music copyright law ( n  = 59).

Results show that YouTube creators are engaged with complex issues in copyright law. It is found that disagreement exists over how to apply the ‘substantial similarity’ test and that there is a widespread concern that copyright law is becoming excessive in its protection of common musical elements, which should be available to all, are. Results indicate that those from a music background are particularly concerned with these issues and that this is reflected in their more likely decision of no copyright infringement in this case. Concerns with the ability of the law to provide unbiased and neutral decisions were expressed by many.

Overall, the results indicate that copyright law is in a challenging position and that there is a need to rebuild trust in the ability of the law to distinguish genuine copyright claims from frivolous charges.

Copyright law has increasingly been in the public eye due to several high-profile music cases. These have notably included the charges made against Pharrell Williams and Robin Thicke’s ‘Blurred Lines’ by the estate of the late Marvin Gaye, 1 which has since led to a plethora of large-scale cases, including Jessie Braham suing Taylor Swift for her lyrics in ‘Shake it Off’, 2 Marcus Gray suing Katy Perry for copyright infringement in ‘Dark Horse’, 3 and more recently the copyright case against Ed Sheeran’s ‘Shape of You’. 4

The ‘Blurred Lines’ case received high levels of attention due to not only the prominent status of the musicians involved but also the general criticism of the case. 5 A jury unanimously held that ‘Blurred Lines’ did infringe upon Marvin Gaye’s ‘Got to Give it Up’, with the final damages award held at $5.3million. Thicke had acknowledged in prior interviews that he did take inspiration from Gaye’s song, specifically stating that he wanted to make something similar to its groove. 6 The dissenting judgment from Justice Nguyen reflects many of the main concerns that the final judgment unfairly punishes ‘inspiration’ as ‘copying’ and allows the ‘Gayes to accomplish what no one has before: copyright a musical style’. 7 The case has been described as ‘frivolous’ 8 and setting a dangerous precedent, which creates a hindrance rather than a protection for artists. 9 Some have challenged whether too much in damages were rewarded, 10 with others arguing that the current test in copyright law of ‘substantial similarity’ is too subjective and confusing. 11

As it has been noted, the foundational nature of copyright has been constantly disputed. 12 It faces numerous issues including widespread non-compliance and multiple ongoing debates regarding what its justifications are. 13 While the basic purpose of copyright law to protect and encourage creativity is generally undisputed, there are important questions regarding how the law should do so and to what extent. 14 This has led to arguments that a justificatory pluralist toolbox is needed to take into account the diverse stakeholders and competing interests involved. 15 With regard to music in particular, the modern context of how society uses and engages with music challenges the adaptability of our current legal provisions. Particular instances referred to include the use of music in political campaigns 16 and the increasing complexity of music production today, complicating the question of ownership. 17

This article focuses on the particular question of how the public perceives the current state of copyright law particularly in the music context. This is an important question that will shed light on how the public engages with these debates, highlighting what they perceive to be some of the main issues and challenges.

A recent study shows that the public is capable of engaging in deliberative discourse regarding complex issues in copyright law. 18 Another study demonstrates how YouTube can be used as an effective research tool to gauge public reaction to copyright infringement strikes. 19

This article will similarly utilize a content analysis method to analyse public perceptions over the ‘Dark Horse’ copyright case. This case is chosen for its relevance to the current debates regarding copyright protections over music and also because of its interesting legal procedure, which involved the overturning of a jury’s verdict.

The ‘Dark Horse’ case was brought in 2014 by Christian rapper, Marcus Gray, from now on referred to by his stage name of Flame, who argued that Katy Perry’s ‘Dark Horse’ copied an eight-note ostinato from his song ‘Joyful Noise’. A jury found that there was copyright infringement, awarding $2.8 million in damages. This was overturned by Judge Snyder in a US District Court, who distinguished this case from ‘Blurred Lines’, stating that the elements did not comprise the entire musical composition of the song and were made up of common building blocks (CBB) of music, which cannot be protected. 20 Under US copyright law, a two-part test for substantiality is used. First, the extrinsic test is applied by the court to decide if there is a ‘similarity of ideas and expression as measured by external, objective criteria.’ If the extrinsic test is passed, the case is then passed to the jury who must consider the intrinsic test. This asks ‘whether the ordinary, reasonable person would find the total concept and feel of the works to be substantially similar’. 21 Judge Snyder argued that the previous court had incorrectly found evidence of the extrinsic test, and for this reason, it should not have reached the jury in the first place. This decision was upheld following an appeal in the Ninth Circuit.

The data for this study consist of a manual search on YouTube videos that was carried out between 29 March and 31 March 2022. The keyword search terms were ‘dark horse copyright’, ‘katy perry copyright’ and ‘katy perry flame –immortal’. The ‘–’ operator was used in the last search term to force the results to omit reference to an unrelated Katy Perry song entitled Immortal Flame. The search included all videos that have been uploaded since Dark Horse was released on 17 September 2013.

The search terms were purposefully kept broad to ensure maximum coverage. However, this led to irrelevant videos such as those covering the Dark Horse song without mentioning any copyright issues, which were therefore excluded from the analysis. Also excluded were YouTube shorts, videos that duplicated content with previously uploaded videos and videos that were not in English.

This resulted in a total of 118 videos. A preliminary check identified that 59 consisted entirely of factual information regarding the case. This left 59 videos in total for the final analysis. Tables 1–3 provide overviews of these datasets. The videos collected encompass a range of accounts, from those with subscribers of below 1000 to over 1 million ( Table 1 ). There is evidence of high levels of engagement with the uploaded videos, with over 12 million views in total, over 500 000 likes and over 50 000 comments ( Table 2 ). Based on an analysis of the videos uploaded by the YouTube channel, the background of the YouTube creator was identified. The channels cover several creator backgrounds including from music, law, general (no overriding topic of interest identified from the uploaded videos), Christian religion and sports ( Table 3 ).

Overview of videos, showing the distribution by date, search term and subscribers to the channel. F = videos containing factual information only. R = videos containing material relevant for further content analysis

Overview of videos by length, number of views, number of likes and number of comments. F = videos containing only factual information. R = videos relevant for further content analysis

Overview of the number of videos included in the data analysis, broken down by YouTube creator’s background, which is identified by the topic of videos uploaded by the channel

A pilot study was carried out on eight randomly selected videos ( n  = 8) to identify core themes and issues. Two researchers independently analysed these videos before comparing them. This ultimately resulted in the development of a codebook, which included one closed-ended section for manual analysis; did the creator think a copyright infringement had occurred or not? (positive, negative or not stated), and qualitative categories for further thematic analysis. The qualitative categories were developed using a grounded approach 22 and consisted of four central themes. First, ‘relevant factors’ includes discussion regarding how to decide if a copyright infringement has occurred and what factors should be taken into account. Second, ‘consequences’ refers to comments made regarding the legal consequences of the case, such as conversations around damages, as well as any other broader implications from the case on the parties or on the general public. Third, ‘challenges’ refers to the discussion revolving around issues that can negatively impact the legal proceedings for copyright cases, for instance potential biases the jury might have. Lastly, ‘emotional responses’ referred to explicit statements made regarding creators’ emotional response to the case or emotive language used indicative of an emotional response to the case.

An overview of results in each of these categories will be broken down into key legal event to test for any differences in public perceptions across the timeline of the case. These key legal events are defined as follows: firstly, before the first case was heard on 29 July 2019; secondly, after the jury verdict and before the reversing of the jury verdict on 16 March 2020; thirdly, after the reversing of the jury verdict and before the Ninth Circuit decision on 10 March 2022; lastly, after the Ninth Circuit decision. Results will also be analysed according to background of the creator and correspondence to the creator’s decision of whether copyright infringement has occurred.

This study focuses on one particular case and one particular social medial platform. Future studies can build on these findings by applying similar methods to test how public opinion differs across social media platforms, including non-English speakers, or between users of social media platforms versus non-users and in relation to different copyright cases. This study is also a snapshot of current public opinion and so does not capture any longitudinal changes, meaning that it cannot contribute to questions of what affects public perceptions to music copyright law. As this is an analysis based on YouTube videos, the background of the speakers could be identified based on the types of videos uploaded by the channel, but more discrete information such as age or nationality was not available. Nevertheless, the sample was able to include speakers from a variety of backgrounds including music, law and a strong proportion from more general backgrounds.

I. Was there copyright infringement?

Of the 59 YouTube creators, 44 provided an opinion on if there was a copyright infringement. Opinions were finely balanced with an almost equal proportion at each stage ( Fig. 1 ). Breaking this down by background of the creator, the majority of music creators decided that there is no copyright infringement. There was an almost equal balance for general creators. The majority of legal and Christian religion creators decided either that there was copyright infringement or did not provide any opinion on this ( Fig. 2 ).

Opinions on whether a copyright infringement has occurred. Results are broken down by key legal event.

Opinions on whether a copyright infringement occurred broken down by background of YouTube creator.

II. Relevant factors

During the pilot study, a grounded theory approach was used to identify a core issue that was discussed by the majority of YouTube creators ( n  = 41, 69.49 per cent, Fig. 3 ). This was the question of what the relevant factors for a decision of copyright infringement are.

Number of creators discussing factors relevant for copyright infringement. Results are broken down by key legal event.

Following the notes made from the content analysis, comments regarding relevant factors were delineated into six main groups: feel and atmosphere, musical elements, access, proportion and substantiality, CBB of music, history and intention of parties. These groups are not mutually exclusive, and as discussed below, the category of musical elements is further divided.

Feel and atmosphere refers to comparisons regarding the overall tone or feeling of the songs. ‘Musical elements’ includes any discussion around the technical musical elements that are compared, such as melody and lyrics, tempo, rhythm and pitch. ‘Access’ refers to discussions regarding whether Katy Perry or other music producers involved had heard Joyful Noise. ‘Proportion and substantiality’ includes views regarding the proportion of Dark Horse that is made up of the ostinato in dispute. ‘Common building blocks of music’ refers to comments made regarding how common the ostinato is, or how easily found in other musical works. Several YouTube creators discussed whether either of the parties had previously been involved in copyright disputes or ‘copying’ behaviour. This is included under the ‘history’ group. Lastly, ‘intention’ refers to any comments on the intentions of either party. For Flame, this included comments on whether his intention to bring the copyright claim was genuine. For Perry, this included discussion on whether Perry intended to copy and whether this was relevant to a copyright infringement decision. Relevant factors were discussed by creators across the different backgrounds, most prominently music and general creators ( Table 4 ), and included creators who both decided against and for a copyright infringement decision ( Table 5 ).

Opinions on the relevant factors for a copyright infringement decision, broken down by background of YouTube creator

Factors discussed as relevant for a finding of copyright infringement. Results are broken down by key legal event.

Breakdown of those who discussed relevant factors by their copyright infringement decision

A very small minority ( n  = 3, 0.05 per cent, Fig. 4 ) mentioned the feel or atmosphere of the song as a relevant factor, with all of these being music creators ( Table 4 ). The particular differences that were pointed to were that Joyful Noise appeared to be more ‘upbeat and energetic’, while Dark Horse was ‘relaxed and casual’ (2019-14). Another creator focused on the ‘vibe’ of the song, stating that it was different for each song and that they did not know people could own a ‘groove’ (2019-35). However, one creator thought that the pairing of the baseline with the melody set up a similar vibe (2019-34). Generally, those who thought the feel was similar held there was a copyright infringement and those who thought the feel was not similar held there was no copyright infringement ( Table 6 ).

Breakdown of those who discussed ‘feel’ by their copyright infringement decision

B. Musical elements

The most common factor discussed as relevant for deciding if copyright infringement had occurred was musical elements ( n  = 23, 38.98 per cent, Fig. 4 ). This was made up of views expressed on seven different musical elements: melody, beat, rhythm, lyrics, chord progression, tempo and pitch. For creators who gave a copyright infringement decision, those who perceived the musical elements as similar found that there is copyright infringement, while creators who perceived musical elements as either not similar or expressed mixed views (stating some elements as similar and some as different) decided that there was no copyright infringement ( Table 7 ).

Breakdown of those who discussed the similarity of musical elements by their copyright infringement decision

There was a general consensus that the melodies of the songs were not similar ( n  = 8 out of 11, 72.73 per cent, Table 8 ). The one creator who decided differently did so by likening the beat of the song to a melody itself (2019-24). Two YouTube creators remained neutral but nevertheless brought up melody as one of the components of a musical piece that taken together with the other building blocks of music could create a protectable piece (2020-5; 2020-7).

Views on similarities of melody

Several creators expressed surprise that a beat or ostinato could be protectable: ‘For what I always thought, my very limited legal musical mind, was you can’t copyright a bass line, you can’t copyright a groove and these kinds of things…So it was always about stealing melody and/or lyrics and especially any kind of connection between those…These were the old Tin Pan Alley copyright laws that were really guiding the industry for years and years and years, decades and decades and decades’ (2019-35). Also: ‘Lets talk about the melody and the lyrics. Those are not anything the same and that’s really what a song is. A song is melody and lyrics’ (2019-42).

Overall, those who discussed the beat considered that the beat was indeed similar between the songs ( n  = 11 out of 15, 73.33 per cent, Table 9 ). For some, this was obvious, with one creator playing the beat and claiming that ‘anyone would be able to tell which part was disputed over’ (2019-25).

Views on similarities of beat examples

Views on similarities of rhythm

Views on similarities of lyrics

In contrast, those who disagreed pointed to specific elements, such as tempo and pitch, which led to them concluding that the beats were not similar (2019-8, 2019-11). Another creator who considered that the beats were similar thought that differences in tempo and pitch were not at all important (2019-19). They indicated that such changes were merely evidence that the copier was trying to take something and tweak it in order to avoid copyright claims. One creator, after stating that the beat did not sound similar to them, went on to express some amazement with the idea that this should be a relevant factor at all: ‘You can’t copyright a back beat—come on!’ (2019-1).

Generally, those who found the beats similar followed through with this to give the opinion that copyright infringement had indeed occurred, and vice versa. However, some creators thought the beat was similar but nevertheless remained neutral on the copyright infringement issue. There was one creator who thought that the beat did have similarities but overall did not judge copyright infringement to have occurred due to other factors (2019-24).

Only a minority of YouTube creators mentioned rhythm as relevant to consider ( n  = 3, 5.08 per cent, Fig. 5 ). One YouTube creator highlighted how the rhythms look completely different when written down, coming to the conclusion that no copyright infringement had occurred. The other two remained neutral, only mentioning rhythm as one of the musical elements that can be taken into account.

Musical elements discussed as relevant to the similarity test. Results are broken down by key legal event.

A minority of the YouTube creators interested in relevant factors commented on lyrics when deciding if there was a copyright infringement ( n  = 5, 8.47 per cent, Fig. 5 ). One creator focused on a singular phrase that was used by the artists, finding that this was similar, but nevertheless holding that this was not enough to find that the song had been copied. The same call-out phrase was mentioned by another YouTube creator who came to the conclusion that this was common and therefore not sufficient for a copyright claim (2019-14).

5. Chord progression

Five of the YouTube creators commented on chord progression as relevant ( n  = 5, 8.47 per cent, Fig. 5 ), with four deciding that the chord progressions were not similar due to the fact that Dark Horse had a chord progression underneath the ostinato, while Joyful Noise did not. However, one creator, who considered that there had been a copyright infringement, emphasized that the ostinato serves a very different function to chord progression and that because of this it deserves to be a protectable element.

Views on similarities of chord progression

Overall, all those commenting about the tempo agreed that it was different with Dark Horse’s beat being slower than Joyful Noise ( n  = 6, 10.17 per cent, Fig. 5 ). This was followed through with most of these creators deciding that there was no copyright infringement. However, one creator, even though considering that the tempo is different, thought that otherwise the songs were the same and that Dark Horse had copied Joyful Noise (2019-19).

Views on similarities of tempo

A very small minority thought that pitch was relevant when comparing the songs ( n  = 2, 3.39 per cent, Fig. 5 ). For one creator, a more suitable way of comparing the songs would be to slow the tempo and lower the pitch (2019-13). This was a similar approach to the other creator who considered that aside from the tempo and pitch, the ostinatos were similar enough to substantiate copyright infringement (2019-19).

Views on similarities of pitch

Eight creators ( n  = 8, 13.56 per cent, Fig. 4 ) discussed access to Joyful Noise as an important factor, including those from a law, music, general and Christian religion background ( Table 4 ). The majority found that there was evidence of access, highlighting the relative popularity of ‘Joyful Noise’ with the Christian community; ‘Not only the fact that they’re both in music but Katy Perry used to grow up in the Church…I think she possibly or somebody on her team could have heard that same melody’ (2019-19), its presence on the internet and radio (2014-1, 2019-42), and that it would be ‘fair to assume that producers who are actively engaged in music would have heard it’ (2019-43). Many of these creators used this as supporting evidence that a copyright infringement had occurred, although one focused on dissimilarities in musical elements to argue that regardless of potential access, the song was not copied (2019-42) ( Table 15 ).

Breakdown of those who discussed whether Perry had access to Flame’s song by their copyright infringement decision

Views on whether Katy Perry’s team had previous access to ‘Joyful Noise’

D. Proportion and substantiality

A minority discussed whether the ostinato made up a substantial enough proportion of Dark Horse ( n  = 4, 6.78 per cent, Fig. 4 ). These views were equally split and included views from the law, music and Christian religion background ( Table 4 ). For one creator, the ostinato under dispute was part of the build up of the song, and the ‘best part’ of the song was totally original (2019-29). Another creator described the copying as ‘so minor’ (2020-1). Both these creators concluded that there was no copyright infringement ( Table 17 ). The creators who disagreed commented that the ostinato did make up a ‘reasonable proportion’ of the song (2019-38), with one of them arguing that ‘You don’t get away with some kind of copyright infringement or not if you only copy three seconds of the song…It isn’t about the seconds. It’s about the heart. It’s about the meaning’ (2019-43), and both deciding that therefore there is copyright infringement.

Breakdown of those who discussed proportionality by their copyright infringement decision

Views on whether the ostinato under dispute is a CBB of music

Breakdown of those who discussed CBB by their copyright infringement decision

Breakdown of those who discussed Flame or Perry’s history of copying behaviour by their copyright infringement decision

E. CBB of music

Slightly over half of the creators discussing whether copyright infringement had occurred mentioned CBB as relevant ( n  = 22 out of 41, 53.66 per cent, Fig. 4 ), with many of these music creators ( Table 4 ). Many did this by pointing to other songs that also used a similar sounding melody to the ostinato (see 2019-41, 2019-39, 2020, 1). All these creators thought ultimately that copyright infringement had not occurred ( Table 19 ). A few creators disagreed with some arguing that it was ‘ridiculous’ to think that all that had been taken were CBB of music (2019-4), ultimately deciding that infringement has occurred ( Table 19 ). Others made some more neutral comments regarding the difficulty in identifying what a CBB of music is (2020-7, 2019-14). One creator discussed an issue that pop music is becoming ‘more homogenous’ (2019-14) and therefore that it is likely a lot of elements in pop music are CBB of music.

A minority considered that the previous practice of the parties was relevant ( n  = 4, 6.78 per cent, Fig. 4 ), all coming from a general or music background ( Table 4 ). Three focused on Flame’s past behaviour, indicating that if he has previous practice of copying, he should not win as this would be ‘ironic’ (2014-2) or ‘hypocritical’ (2019-18). One creator discussed Perry’s previous history of copying (2019-39), focusing on Perry’s ‘Roar’ being compared to Sara Bareilles’ ‘Brave’. The creator emphasizes how Bareilles was actually pleased with the press and extra sales and brushed any similarities off. This creator ultimately decided that there was no valid claim of copyright infringement ( Table 20 ).

Breakdown of those who discussed if Flame’s intention to bring a claim is genuine and those who discussed Perry’s intention to copy by their copyright infringement decision

G. Intentions of parties

The intentions of the parties involved were discussed by five creators ( n  = 5, 8.47 per cent, Fig. 4 ) from the general and music backgrounds ( Table 4 ). There were contrasting opinions on whether it should matter if the accused meant to copy or not (2014-3; 2019-29). Two creators focused on Flame’s intentions, indicating that a delay in bringing the claim could suggest the claim is not genuine (2019-42; 2019-11). This corresponded with their decision that this was not a valid claim for copyright infringement ( Table 21 ).

III. Consequences

The second core issue identified during the pilot study was the consequences of the case, with a substantial majority discussing this ( n  = 45, 76.27 per cent), coming from all the different backgrounds ( Table 22 ). This included any discussion regarding what was significant about the case in terms of effects on the parties or the general public.

From the content analysis, the comments from the creators were delineated into four main groups: damages, effect on songwriters, protection of creativity and reputation. These groups are not mutually exclusive. ‘Damages’ refers to any comments regarding the amount of damages to be paid and who should be responsible for paying the damages. The ‘effect on songwriters’ includes any discussion on the potential prohibitive effect that a copyright infringement finding would have on future songwriters. ‘Protection of creativity’ covers comments regarding how a finding of copyright infringement could provide protection for songwriters and other creators against copying behaviour. The category ‘reputation’ refers to comments regarding the impact on the reputation of Perry and/or Flame as musical artists, as well as on the Christian community through Flame’s position as a Christian rapper, and the reputation of the case on the legal system.

A number of creators discussed damages as an important aspect of this copyright case ( n  = 12, 20.34 per cent, Fig. 6 ). Several focused on the damages, with some commenting that the damages were too high, ‘That’s a lot of money, oh my god’ (2019-11). Others commented that although the amount would be a lot for most people, Katy Perry might not be affected (2019-10) and that it was a small fraction of the profit actually made by the song (2019-37). One creator considered that it was understandable to put damages at 10/15 per cent of the song’s profits but thought that giving songwriting credits on top of this would be excessive (2019-42). Perceptions on the damage award tended to correspond with copyright infringement decisions. Those who found the amount too high thought there was no copyright infringement, while those who found it too low thought there was ( Fig. 7 ).

Number of creators discussing the consequences of the case. Results are broken down by key legal event.

Breakdown of those who discussed damages by their copyright infringement decision.

Perceptions on the consequences of the case, broken down by creator’s background

One creator expressed frustration with understanding how damages are calculated. ‘How is that determined? Did they put together some kind of focus group that helped them find that percentage?’ (2019-39). They then provided reasons for why Perry should be seen as wholly responsible for the financial success of the song and therefore why giving away part of its profits would be unfair: ‘it was sung by one of this century’s most popular artists and had a huge marketing campaign behind it.’

A few of the creators discussed who should be responsible for paying the damages. There was controversy here, some arguing that damages should be paid by those who made the beat and not Perry (2019-7), and others arguing that Perry should pay more of the contribution (2019-19).

B. Effect on songwriters

The effect on songwriters was the most frequently discussed aspect regarding the consequences of the case ( n  = 17, 28.81 per cent, Fig. 6 ), with many from a music background ( Table 22 ). Concern was expressed over how a finding of copyright infringement in this case could have a prohibitive effect on songwriting and creativity. This was from the perspective of songwriters: ‘As a songwriter myself, honestly, all these lawsuits – I’m like shaking just thinking about this. They make me scared to make music’ (2019-29), as well as from the perspective of creativity in general: ‘I truly believed that the lawsuit was bad for musicians, bad for creativity, and bad for the art form of music making’ (2020-1). Many were concerned with how this case could open the floodgates to spurious copyright claims: ‘Set a dangerous path for creativity down the road because if we are going to engage in gigantic lawsuits off the most cursory similarities’ (2019-40), with one creator claiming that this case would help to bring about a ‘musical dystopia’ (2019-41).

There was one outlier, a legal creator, who argued that these concerns are over exaggerated: ‘This idea that this one bad case is going to set this terrible precedent that’s going to destroy creativity…These types of lawsuits have been going on for a very long time. They are case by case’ (2019-38).

The concern over prohibitive effects on creativity was expressed regardless of creator’s ultimate copyright infringement decision ( Fig. 8 ).

Breakdown of those who discussed the effect on songwriters by their copyright infringement decision.

C. Protection of creativity

A minority of those discussing the consequences of the case provided comments on how Flame winning the case signalled greater protection for songwriters against copying ( n  = 7, 11.86 per cent, Fig. 6 ), with many of these from a general background and all of these deciding that Flame’s claim was valid ( Table 22 and Fig. 9 ).

Breakdown of those who discussed protection of creativity by their copyright infringement decision.

YouTube creators saw this case as particularly important due to Flame’s status as the ‘underdog’ and thought that suing someone as popular as Katy Perry was evidence that the law could protect smaller artists (2019-6). As one creator phrased it, ‘no one is too above being sued’ (2019-10).

Others (from the sports and Christian religion background) saw this case as evidence of protection for the Christian community and Christian music in particular (2019-31; 2019-2): ‘I think this will be a big L for Christian rappers cuz I know the community hasn’t had much money’ (2019-32).

D. Reputation

A proportion of YouTube creators discussed reputational issues, which might occur as a consequence of the case ( n  = 13, 22.03 per cent, Fig. 6 ). These can be split into three general subthemes. First, concerns over the reputation of the Christian community if one of their songs is used for non-Christian purposes. These comments highlighted the importance, which the Christian community placed on protecting the reputation of the Christian community as a whole. One creator claimed that Dark Horse was ‘tarnishing something that is pure and holy’ (2014-1), with accusations that the song was being used for ‘witchcraft’ (2014-3). However, other creators who engaged in this debate argued that there needs to be more evidence to substantiate claims that Dark Horse has had a bad impact on Christian community (2019-39). These creators mostly found that there is no valid claim of infringement here ( Fig. 10 ).

Breakdown of those who discussed reputational impact by their copyright infringement decision.

Second, discussions regarding the reputation of the parties themselves. There were concerns over the consequence of a false allegation: ‘If you didn’t steal it, you don’t want people to think that you stole somebody’s music that you didn’t steal’ (2022-3). Other creators indicated how bringing a copyright infringement case could impact negatively on the accuser. One creator thought Flame had ‘over-reacted’ and that pursuing a legal claim should not be used unless in the last resort (2019-12). Another disagreed with the mindset of Flame, calling it a ‘clown move’ to bring the copyright claim (2019-18). These creators also held that Flame’s claim for infringement was not valid ( Fig. 10 ). Opposed to this, there was emphasis from one creator that the case is not about ‘stealing’ and that people should not accuse the parties of ‘having an irrational fight’, considering that it was valuable for the parties to make use of the civil law procedures available to them (2019-43).

Third, discussion regarding how reversing the jury verdict could impact negatively on the reputation of the legal system. This concern was found across law, music and general backgrounds ( Table 22 ), with many of these creators holding that there is a valid claim of copyright infringement ( Fig. 10 ). It was described as ‘crazy’ that the decision was overturned so that ‘now Flame gets nothing’ (2022-5). Others expressed disbelief: ‘I don’t even understand how you go to court. You win the case. And now all of a sudden they counter sue, and then you lose the case’ (2020-4). One creator expressed the opinion that it was ‘unfair’ that the judge could overturn a jury’s decision and that it seemed ‘suspicious’ for one man to find differently to a jury (2022-1).

IV. Challenges

The third core issue identified during the pilot study was challenges affecting the legal process ( n  = 37, 62.71 per cent). This included discussion from the creators regarding factors that could impact the ability of the law to remain neutral and unbiased, to achieve its goals and/or to ensure equal access of individuals to legal protection. Four subthemes were delineated from the content analysis: Neutrality, Access to law, Flaws in the legal process, and Abuse of copyright law. These groups are not mutually exclusive.

A. Neutrality

The ability of the law to provide a neutral and unbiased legal judgment was the most discussed topic regarding issues that affect the legal process ( n =42, 71.19 per cent, Fig. 11 ). The concerns mentioned are split into four subthemes. First, concerns were expressed regarding potential biases the jury might have due to being fans of either artist. This concern was expressed across the different backgrounds, except for the law background ( Table 23 ), and by those both for and against a copyright infringement decision ( Fig. 12 ). As one creator commented ‘everyone has a bias which will affect their decision’ (2019-10). One creator considered that ‘fans think Perry can do no wrong’ (2019-8), while others claimed that the ‘fandom needs to calm down’ (2019-10). Some creators broadened this issue to potential biases between Christians versus non-Christians (2019-7; 2019-26), with statements that ‘religious discrimination is at play’ (2019-15). Several found it important to acknowledge their own personal biases in terms of whether they liked the artists or songs concerned and how this might affect their judgment (2014-3; 2019-6; 2019-7).

Number of creators discussing challenges affecting the legal process. Results are broken down by key legal event.

Perceptions on the ability of the law to maintain neutrality, broken down by YouTube creator’s background. Negative responses to the musicologist included those that viewed them as having inadequate expertise or misleading jurors while positive responses included those who thought they had a positive contribution to make to the jury’s decision

Breakdown of those who discussed the issue of neutrality by their copyright infringement decision.

Secondly, concern that the jury is ‘uninformed’ (2019-13) and incapable of deciding on copyright infringement cases in an appropriate manner. One creator suggested that the ‘jury weren’t able to get it’ (2019-35), while another thought that the jury might not be educated enough to understand legal differences (2022-6). There were also concerns that jurors may be easily misled by musical jargon and experts (2019-37). On the other hand, several argued that the jury should be involved as the law should be deciding on the basis of a reasonable listener (2019-38) and that the decision was well within the discretion of the jury: ‘It is about the layman, not a music expert or a professional musician’ (2019-43).

The third topic that was discussed related to the musicologists used in the case. Some challenged the expertise and statements of the musicologists involved, questioning the opinion that music has ‘colour’ (2019-5) or that the timbres were the same (2019-41). Another creator thought that it was the musicologist’s fault for not being able to persuade the jury that the claim was ‘bogus’ (2019-42). However, some considered that the musicologist’s expertise in the music field was sufficient (2020-5) and that due to legal processes such as cross-examination, the jurors should not have been confused by the musicologists’ statements (2019-33). The more positive perceptions of the musicologist were held by those from a law background ( Table 23 ).

Lastly, several creators made general comments that the case was too close to call, with this being a perception found across all creator backgrounds ( Table 23 ). It was described as a ‘case where it is really on the border’ (2019-43). Emphasis was placed on the ‘diversity of opinion’ that exists (2019-30). One creator questioned ‘where do you draw the line?’, concluding by not being sure if the similarity was enough in this case (2022-4), while another discussed the difficulty that exists in telling what is an original versus copied work (2019-5).

Results showed that concern that the jury was not informed and negative perceptions towards the musicologist were held only by those who disagreed that there is a copyright infringement ( Fig. 12 ).

The ability of parties to access equal protection under the law was the second most discussed topic under issues affecting the legal process ( n  = 7, 11.86 per cent, Fig. 11 ). The comments revolved around what was assumed to be a power difference between the smaller artist, Flame, going up against the larger artist, Katy Perry. This was described by one creator as ‘David going up against Goliath’ (2019-30). Another highlighted that those with more money can afford to drag out legal trials, commenting that Perry’s team was ‘gonna let this linger for a minute and he’s gonna get tired. He’s an indie petty artist. He probably is gonna run out of money’ (2019-31). These concerns were found regardless of the decision on copyright infringement ( Fig. 13 ), and across different backgrounds, with three general and music creators and two Christian religion creators.

Breakdown of those who discussed the issue of access by their copyright infringement decision.

Another topic that was discussed to a slightly lesser extent was the issue that the legal system could be abused ( n  = 4, 6.78 per cent, Fig. 11 ), in particular that copyright claims could be pursued merely for the purpose of increasing exposure of the original song (2019-1). Creators claimed that this lawsuit will ‘bring more attention to Joyful Noise’ (2014-2) and that the legal controversy ‘benefits the original’ (2022-4). These creators came from the law ( n  = 1), general ( n  = 2) and music ( n  = 1) backgrounds and gave both decisions for and against copyright protection ( Fig. 14 ).

Breakdown of those who discussed issue of abuse of the legal process by their copyright infringement decision.

Commentators discussed general flaws they considered to exist in the legal system ( n  = 5, 8.47 per cent, Fig. 11 ), including the length of time that this case has been going for, expressing surprise and critique (2019-20; 2019-30; 2022-2). Another creator stated that ‘anyone can sue anyone at any time for any reason’, concluding that ‘the system is broken’ (2019-29). These comments came from the general ( n  = 2), music ( n  = 2) and Christian religion ( n  = 1) backgrounds, with many not providing an opinion on whether there was an infringement ( Fig. 15 ).

Breakdown of those who discussed issue of flaws in the legal process by their copyright infringement decision.

V. General emotional responses

While some creators remained neutral in their language and analysis, a substantial proportion did express an emotional response to the case ( n  = 19, 32.20 per cent), with many of these deciding that there is no copyright infringement decision ( Fig. 17 ).

Many of these occurred after the jury verdict, with creators expressing outrage and frustration that the jury had found in favour of Flame (2019-15; 2019-12; 2019-11). The case was described as a ‘whole bunch of BS’ (2019-42) and ‘disappointing and gross’ (2019-40). This view was supported by creators from a general and music background ( Fig. 16 ) and particularly from those who disagreed that there is copyright infringement.

Breakdown of emotional responses from YouTube creators by background.

Others expressed nervousness and anxiety regarding what was perceived as a judgment against the creativity of musicians. Thus: ‘I am finding this all rather nerve-wracking as should other songwriters. The more I researched the court case, the more I am frustrated’ (2019-39). For another creator: ‘It makes me really sad that it makes me scared to put out my own music because, you know, a lot of things just happen to sound the same’ (2019-29). This concern was carried on in videos published after the jury verdict as well (2020-2; 2020-3). It was mostly those with a music background and who disagreed with Flame’s case who expressed anxiety regarding the judgment ( Fig. 16 ).

On the other side, some who agreed with the jury verdict expressed happiness and excitement: ‘I was so excited to hear this verdict because I was just like wow, this is not just a win for Flame. This is a win for the kingdom’ (2019-31). One creator also stated that he would ‘feel bad if Perry didn’t know, but shame on her if she did’ (2019-6). Notably, those who expressed happiness for Flame’s win all came from a Christian religion background ( Fig. 16 ) and from those who agreed that there is a copyright infringement ( Fig. 17 ). Some conveyed frustration and disdain at what was considered to be ‘pointless copyright claims’ (2019-13), describing the case as a ‘clown move for Flame’ (2019-18) and ‘petty’ (2019-10).

Breakdown of emotional responses by copyright infringement decision.

The results from this content analysis indicate an even balance in public opinion between those who think that Dark Horse did infringe on the copyright of Joyful Noise versus those who do not. This implies that there is a dispute regarding this case, supported by several YouTube creators who considered that this case was too close to call. As discussed later, much of this disagreement seems to be a concern over what is ‘substantial’ similarity. Interestingly, when broken down by background of the YouTube channel, music creators were more likely to find that there is no copyright infringement, while Christian religion and law creators were more likely to find that there was. This could imply that those with a legal background are more accepting of the legal rulings on this issue, particularly because these opinions were expressed before the decision was reversed, and that those with links to one party may indeed be biased and more likely to find in favour of them, for instance those with a Christian background more likely to find in favour of Christian rapper Flame. These results also imply that those involved with music may be more concerned with the possibility that copyright is becoming over-excessive and therefore may be more biased towards finding against a copyright infringement. This is something that can be tested in future studies.

There was interest in multiple issues regarding this copyright case, most significantly with regard to what factors should be included as relevant when deciding if a copyright infringement has occurred, what the consequences of a copyright case are and what factors could impact the ability of the law to remain unbiased. This provides supporting evidence that the general public is indeed interested in the more complex aspects of copyright law and engaged in these debates. 23

Starting with relevant factors to a copyright claim, creators mentioned feel and atmosphere, musical elements, access to the alleged copied song, whether the disputed section was based on CBB of music and previous practice and intention of the parties as important to consider. This mostly aligns with the main criteria found in most legal systems, with the exception of intention of parties. Only a minority discussed the feel and atmosphere of the song when comparing the songs, all coming from the music background. This calls into question the emphasis that the US legal system places on the intrinsic test. As others have commented, the role of the intrinsic test itself can be criticized for remaining too vague and open to likelihood that ‘essentially any song “feels” like another one’. 24 This study suggests that the general public do not feel that this is a useful factor, indicating public support for these criticisms 25

For the most part, there was agreement regarding the musical elements of the songs, with the majority deciding that there were differences in the melody that is sung in Dark Horse, the lyrics, the tempo of the ostinato and the chord progression used for the ostinato, and the majority aligning their copyright infringement decisions with their opinions on similarities of musical elements. This indicates that the public do make broadly similar judgments regarding the technical similarities and that they are more likely to find a copyright infringement if there are similarities in musical elements. When disagreements occurred, these seemed to be because there was some confusion between what part of the song counts as the ‘melody’—does it includes the tune that is sung or does it also includes the tunes of musical instruments? This may be something the law needs to clarify or consider in greater detail as several commentators expressed some surprise that the law seems to have moved beyond protecting melody and lyrics to protecting ostinatos.

One area where there was the most disagreement was with regard to the extent of similarity of a beat required to distinguish it from copying. Some considered that if the beat is in a faster tempo and in a different pitch, this is sufficiently different, while others considered that this was simply evidence of someone changing the original beat to absolve themselves of copyright infringement claims This disagreement lends support to previous claims that the ‘substantial similarity’ test remains unclear for many and can lead to subjective results. 26

Whether the musical element under dispute is a CBB of music was discussed by a substantial number of creators, including many from the music background, indicating that this is a persuasive factor and particularly to those who are more knowledgeable about music. The general sentiment aligned very much with the legal position—if it is a common element found in many songs, this should not be a protectable element under copyright law, and indicates that the public is aware too of the balance that needs to be made to protect public access to material. 27 The majority agreed that the ostinato was made up of CBB of music. However, even here there was a minority who considered that such an argument was ‘ridiculous’, proving that there can be disagreement with such judgments, and perhaps greater clarification is needed on what CBB of music are.

The results showed that the majority agreed that there was potential access in this case, basing their decision on the modern context of internet access, which makes this easier to prove. This indicates that today, the test of access may be relatively useless since many songs are able to attract a high number of views online. 28

A minority of creators considered that if someone has previous evidence of copying, then this should be included as a relevant factor. Courts appear to be starting to agree with this. 29 However, others have argued that it could be unfair to bring in such evidence particularly because much of it may depend on past settlements made, which do not prove copyright infringement. 30 Drawing an analogy with equitable principles, while it is stated that those who come to equity must do so with clean hands, this is limited to behaviour that is strictly relevant to the claim at issue. 31 Another analogy may be under criminal law, whereby evidence of past incriminating behaviour may serve as a justification to increase punishment. This could perhaps provide an argument for past behaviour being relevant when deciding on the damages for copyright infringement. This therefore seems to be an area of copyright law, which requires more consideration. Another aspect of previous practice that creators considered was that if you have previously copied, you should not be allowed to sue someone else for copyright infringement. This may be something that needs to be clarified to jurors that they should not take into account when deciding a copyright claim.

The potential chilling effect that illegitimate copyright claims could have on musical creativity was the top issue discussed by creators regarding consequences of the case, particularly voiced from those with a music background. This concern was not affected by the ultimate decision of whether copyright infringement had occurred, indicating that even those who considered there to have been a valid infringement still thought that the case has a negative impact on the creativity of music. This emphasizes the double-edged sword of copyright protection, and how false, and even true, allegations can have a significantly prohibitive impact on other artists and creators. This has come to the fore particularly with regard to how third companies such as YouTube enforce copyright strikes, providing a good example of how the law has perhaps focused too much on ensuring the enforceability of copyright protection without considering whether adequate protection is given to those accused of copyright infringement. 32 These results suggest that the law may need to consider finding alternative ways to incentivize creativity that do not have such prohibitive effects on creativity.

One of the other main issues discussed regarding the consequences was that of damages. The content analysis indicates three debates that may require future attention. Firstly, disagreement over how damages should be calculated. Some considered that everyone should be held liable for a copied song, indicating that the purpose of copyright law is to act as a general deterrent. Others considered that only those who were responsible for the copying should be held liable for damages, indicating that the purpose of copyright law is to punish the copier. Another suggestion was that if Perry was the main reason for the success of the song, then damages should not be paid. This indicates the opinion that copyright law should be based less on the usual justifications of promoting creativity by preventing copying behaviour and more on pure economic analysis of whether the fact that the song was copied contributed to the economic success of the song or not. This latter opinion is supported by others who have argued that similarly in the ‘Blurred Lines’ case, a smaller amount of damages should have been rewarded to take account of the fact that much of the commercial success arose from marketing and media attention. 33 Secondly, discussion over how damages fit with other remedies that are available for copyright infringement, with one creator considering that granting songwriting credits on top of damages would be excessive. The third main debate revolved around the effectiveness of damages. Several commented that basing the damages on a fraction of the song’s profit may not be effective if it accounts for a very small proportion of Perry’s wealth. This may be a general issue with how legal systems typically calculate damages according to the damage caused so that the plaintiff can be returned to their original position, rather than as a distribution of the defendant’s wealth. 34 This has been described as a model based on corrective rather than distributive justice. 35 The results suggest that some of the public may be more open to a model that incorporates distributive justice concerns. 36 A fourth issue that arises from the results is an indication that whether the amount of damages appears to be fair seems to impact the substantive decision of copyright infringement. Thus, those finding that the damages were too high seemed more likely to hold that there was no copyright infringement.

Interestingly, only a minority of creators discussed the significance of damages following a copyright infringement in protecting songwriters, particularly underdogs, despite this being the usual justification provided for copyright law. This might be explained by the fact that the first decisions were in favour of Flame and therefore seemed to show that the law was already providing adequate protection against copying behaviour.

Another notable result was the emphasis that some creators placed on reputational costs to copyright claims. Some claimed that bringing a copyright claim can seem ‘petty’ and negatively affect the reputation of the individual who brings a case. The perception of copyright claims and language that is used may be something that needs to be considered in order to help individuals feel comfortable in bringing genuine copyright claims. There were also concerns that inability to protect the creative output of an individual could impact negatively on the ‘group’ the individual belongs to, especially if the new source uses the material in a way that damages that group. This indicates that individuals place importance on the role of copyright in protecting identities not only of individuals but also of the groups that individuals may represent. The issue of overturning the decision was discussed too as impacting negatively on the impression of the legal system and the role of the jury, especially by those who agreed with the jury’s verdict that there was copyright infringement. This emphasizes the importance of clarifying the US laws on copyright so that a correct decision on the intrinsic/extrinsic similarity test is reached before the jury is involved.

Aside from relevant factors to a copyright claim and the consequences of the case, a large proportion of creators discussed general challenges to the legal system itself as an issue. Many focused on the ability of the jury to remain impartial particularly if they are fans of either of the parties involved. In this particular case, there were also concerns that Christians might side with Flame. This could be an issue that needs to be considered and further researched to test if particular groups associated with either party, or being a fan of either party, leads to potential bias. Several creators questioned the expertise of the musicologists representing the parties. While some commented that the legal process does make use of cross-examination, there may be scope for potential reconsideration of the qualifications required to be a music expert in a copyright infringement case. Criticism for the use of expert witnesses has been made before especially for analysing pop music. 37 This content analysis suggests that the public may also be in agreement with such an argument. There seemed to be less concern over some of these issues for creators from a law background. Future research could investigate if this is due to lack of knowledge from the public regarding legal safeguards that are in place to deal with these issues or if this is due to a desire for those from a legal background to have faith in the legal system.

Several creators drew attention to what they perceived to be a power differential between the parties, commenting that they would have expected Perry as the more mainstream artist to win. While this may be a more general issue affecting the legal system, consideration can be given to how the law can change the perception that the party with more money necessarily has the advantage. Whether there is some truth behind larger parties winning in copyright infringement cases could also be an interesting question for future research.

A small minority of creators expressed an opinion that copyright law was open to abuse, with individuals willing to make illegitimate claims in order to win some money. This is an issue that has started to be discussed, and this research study provides evidence that it is an issue of concern for the public. 38 The fact that individuals bringing copyright claims may have opposite motivations to those of the legal system has also been demonstrated by another study. 39

Importantly, the results highlight that this is an area that has attracted a lot of attention and is a topic that people are passionate about. There were relatively high numbers of views for some of the videos, reaching over 2–3 million. A number of YouTube creators expressed strong emotional responses to the case. Some who disagreed with the jury verdict were outraged and frustrated, with others expressing fear and concern for songwriters who might face illegitimate copyright infringement cases. Many of these concerned voices arose from those with a music or general background, indicating that as well as musicians, this is something which the general public is worried about. On the other side, those who agreed with the jury verdict expressed excitement and happiness that Flame’s copyright had been protected. These responses seemed to arise particularly because Flame was considered as the ‘underdog’ and a representative of Christian music, a minority music genre. All of these responses arose from those with a Christian religion background which, consistent with the fact that none of those from a Christian background disagreed with Flame’s copyright claim, indicates there may be bias from the public according to party allegiances when making copyright infringement decisions.

This current study highlights the relatively high level of public engagement in copyright law discourse, particularly regarding high-profile cases that deal with music copyright, sometimes leading to strong emotions being expressed. This indicates that music copyright is an important issue, which can affect the way people view the legal system and the way in which we engage with creative activities. An important emphasis within the results was the fear from songwriters and the general public that copyright law is too restrictive and overprotective. This fear corresponded to the consensus decision from music background speakers that there is no copyright infringement in this case. This anxiety is also reflected by speakers asking if there are ways for songwriters to protect against copyright infringement claims (2019-19) and suggesting that there should be researchers or lawyers checking songs for potential copyright issues (2019-6). While this may be an approach that is needed now, with Ed Sheeran recently stating that he would film all of his recording sessions as a safeguard, 40 it serves to highlight that an excessive copyright system can unfairly burden particularly smaller artists who must take extra measures. This goes against the main aim of copyright to incentivize creation and could also give rise to bias with musicians being potentially less likely to find any copyright infringement in the fear that this will have a negative future impact on them.

Many have already commented on the confusion and subjectivity of the ‘substantial similarity’ test used in many legal systems to prove copyright infringement. This study emphasizes that while there was broad public consensus regarding technical elements such as similarity of musical elements, the ‘substantial similarity’ test is one area that the public do seem to disagree over, particularly with regard to what counts as a ‘melody’ for music and what counts as a ‘substantial proportion’ of copied material. These issues require further research, and the study suggests that copyright law may require particular guidance for different types of creative output.

A substantial number voiced concern over challenges to the legal system including how to protect against jury biases, whether the less powerful party is at a disadvantage and what the role of the music expert is. There were also voices questioning how damages are calculated, with some finding the damages award in this case to be too high and others too low. Since these issues were frequently raised by YouTube commentators, this suggests that they are important areas for future research in order to maintain public confidence in the copyright legal system.

This study has focused particularly on YouTube creators regarding public perceptions over one copyright case. Future research can utilize similar methods to draw on different social media platforms, covering a wider range of copyright law issues beyond music or taking a longitudinal approach. However, what seems evident from this study is that there is a need to rebuild trust in our copyright legal systems and, in particular, ways to prove to the public that there is effective protection against what are perceived to be frivolous or illegitimate copyright claims.

Williams v. Gaye , 895F.3d 1106 (9th Cir. 2018) (No. 15-56880).

Mark Savage, ‘Taylor Swift to face trial in shake it off copyright case’ (BBC News, 10 December 2021). Available at https://perma.cc/67WM-ABS4 (accessed 1 March 2022).

Laura Snapes, ‘Katy Perry wins £2.1 m copyright appeal over hit single Dark Horse’ (The Guardian, 11 March 2022). Available at https://perma.cc/8Y6L-LRNB (accessed 12 March 2022).

Emily Zemler, ‘Ed Sheeran Wins ‘Shape of you’ copyright infringement case’ (Rolling Stone, 6 April 2022). Available at https://perma.cc/2FPX-6ZYR (accessed 6 April 2022).

Hannah Patton, ‘From blurred lines to blurred law: an assessment of the possible implications of Williams v. Gaye in Copyright Law’ (2020) 28 Journal of Intellectual Property Law 251.

Supra note 1, 1138.

Mindaugas Beniušis, Justinas Drakšas, & Paulius Jurčys, ‘So you wanna play with magic? ‘There is no going back’, says Californian court in copyright infringement case against Katy Perry’ (2020) 15 Journal of Intellectual Property Law & Practice 586.

Taylor Turville, ‘Emulating vs. infringement: the ‘blurred lines’ of copyright law’ (2017) 38 Whittier Law Review 199.

Doug Bania, ‘Apportioning copyright damages: the case of ‘Blurred Lines ’ (2015) 10 Journal of Intellectual Property Law & Practice 940.

Ben Challis, ‘More ‘Blurred Lines’ when it comes to writing songs?’ (2015) 10 Journal of Intellectual Property Law & Practice 586; Jason Palmer, ‘Blurred Lines” means changing focus: juries composed of musical artists should decide music copyright infringement cases, not lay juries’ (2016) 18 Vanderbilt Journal of Entertainment and Technology Law 907; Joseph M., Santiago, ‘The ‘Blurred Lines’ of copyright law: setting a new standard for copyright infringement in music’ (2017) 83 Brooklyn Law Review 289.

Simone Schroff, ‘The purpose of copyright—moving beyond the theory’ (2021) 16 Journal of Intellectual Property Law & Practice 1262.

Katie Sykes, ‘Towards a public justification of copyright’ (2003) 61 University of Toronto Faculty of Law Review 1.

Robert P Merges, Justifying Intellectual Property (Harvard University Press, 2011); Michael Spence, Intellectual Property (Oxford University Press 2007) 43–73.

William Dibble, ‘Justifying intellectual property’ (1994) 1 UCL Juris. Rev 74; Justin Koo, ‘A Justificatory Toolbox: Constructing a Modern Approach to Justifying Copyright Law’ (2020) 42 European Intellectual Property Review 469; David Reznik, ‘A pluralistic account of intellectual property’ (2003) 46 Journal of Business Ethics 319; Lior Zemer, ‘On the value of copyright theory’ (2006) 1 Intellectual Property Quarterly 55.

Catherine Bond, ‘Political use of copyright-protected music in Australia and New Zealand: Part I’ (2002) 44 European Intellectual Property Review 27.

Supra note 10.

Lee Edwards and Giles Moss, ‘Evaluating justifications of copyright: an exercise in public engagement’ (2020) 23 Information, Communication & Society 927.

D. Bondy Valdovinos Kaye and Joanne E. Gray, ‘Copyright Gossip: Exploring Copyright Opinions, Theories, and Strategies on YouTube’ (2021) 7 Social Media + Society 1–12.

Supra note 8.

Pasillas v. McDonald’s Corp., 927F.2d 440, 442 (9th Cir. 1991) (No. 89-55602).

Juliet M. Corbin, & Anselm L. Strauss, Basics of qualitative research: Techniques and procedures for developing grounded theory (3rd edn SAGE 2008); Barney G. Glaser, & Anselm L. Strauss, Discovery of Grounded Theory: Strategies for Qualitative Research (1st edn Routledge 2017).

Supra note 20.

Supra note 11.

Nicholas R. Monlux, ‘An invitation for infringement: how the Ninth Circuit’s extrinsic and intrinsic similarity tests encourage infringement; an analysis using Reece v. Island Treasures Art Gallery’ (2009) 56 Journal of the Copyright Society of the U.S.A . 543.

Supra note 11; note 12; note 13.

Kelly-Marie Smith v Kesi Dryden & Ors , EWHC, 2277 (IPEC 2021); supra note 1.

Rachel Hall, ‘Music is so different now’: Copyright laws need to change, says legal expert’ (The Guardian, 13 March 2022). Available at https://perma.cc/UG6N-H8GV (accessed 13 March 2022).

Sheeran v Chokri , EWHC, 827 (Chancery Division, 2022).

Thomas G. C. Hood, ‘Can the courts of England and Wales establish a ‘character of copying’ in the assessment of similar fact evidence for cases regarding musical copyright?’ (2021) 16 Journal of Intellectual Property Law & Practice 1333.

Bert, B., Meek, ‘Equity: The “Clean Hands” Doctrine’ (1945) 33 California Law Review 143.

Supra note 21.

General Tire & Rubber Co Ltd v Firestone Tyre & Rubber Co Ltd , 7, WLUK, 130 (Court of Appeal, 1971).

Arthur Ripstein, Private Wrongs (Harvard University Press 2016); Ernest J. Weinrib, Corrective Justice (Oxford University Press 2012).

Marc Loth, ‘Corrective and distributive justice in tort law: On the restoration of autonomy and a minimal level of protection of the victim’ (2015) 22 Maastricht Journal of European and Comparative Law 788.

Matthew W. Daus, ‘The abrogation of expert dissection in popular music copyright infringement cases: suggested modifications for the implementation of the lay listener standard’ (1992) 8 Touro Law Review 615.

Justin Hughes & Robert P. Merges, ‘Copyright and distributive justice’ (2017) 92 NOTRE DAME L. REV. 513; Glynn S. Jr Lunney, ‘Copyright and the 1%’ (2020) 23 Stan. Tech. L. Rev. 1.

Jeanne Fromer, ‘Should the law care why intellectual property rights have been asserted?’ (2005) 53 Houston Law Review 549.

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Copyright Infringements: Exploring Fair Use Policies on YouTube

Abstract 

Copyright infringement and fair use are critical issues for YouTube creators, especially ones who primarily work with content they do not own. This research investigates how copyright is understood and navigated by YouTube creators from the genre of commentary YouTube. The investigation sought to uncover discourses by creators through a genre-specific, iterative, and inductive content analysis of 18 YouTube videos. We have found that creators mainly address the topics of monetization, appeal of a claim, YouTube absence, and claimed content. We have found these approaches and overall discourse to relate to broader issues of platformization of cultural content, specifically how entanglements of different actors, such as users, platforms, and legislative institutions, produce a system that is difficult to navigate. With our findings, we hope to shed light on a process of cultural production which, while resulting in extremely popular and relevant content, is increasingly complicated and limiting.

YouTube, Platform Governance, Copyright Laws, Fair Use Policies, Content Moderation, Popular Culture

By Marta Ceccarelli, Paola Gardino, Maria Vittoria Ravaioli

Introduction 

As new technologies continue to emerge, governments and authorities must rapidly create, modify, and enforce regulations to ensure conformity and safety for users navigating online platforms (Eggers, Turley & Kishnani 2018). A challenge faced by authorities today is the notion that web spaces inherently transcend regional laws as they cross-national and international borders (Tanneeru 2009), thus making legislation challenging to create and enforce. This study contemplates the implementation of copyright law on the contemporary digital landscape and the introduction of fair use policies as a direct consequence. In its most basic definition, fair use refers to any copying or repurposing of copyrighted material done for a transformative purpose; this includes commenting, criticizing, and parodying any original content (Stim 2019). 

The notion of fair use on YouTube has been subject to scrutiny in the past decade as the platform has not provided adequate clarity on how to practice it. The battle over online copyright infringement was expected to be resolved decades ago. The United States Congress recognized the necessity for updating and improving copyright laws in the late 1990s, consequently enacting the Digital Millennium Copyright Act or “DMCA” (Solomon 2016, 237). The DMCA established a carefully calibrated compromise between the rights of copyright owners and those of online companies and content creators, ensuring that both parties were moderated (Seidenberg 2009, 47). Although unassailable at the time that it was instated, the law has not been altered since, while internet platforms such as YouTube have grown exponentially. The DMCA’s failure to modernize to fit the twenty-first-century media landscape bears heavy repercussions for users and creators operating in the new media environment. In the context of the copyright and fair use regulations on YouTube, new legislation is crucially needed to cater to the user and content creators’ needs as the platform continues to evolve. Due to the outdated nature of the DMCA, the legislation fails to enforce clear and precise guidelines, often resulting in users’ malpractice of the law when navigating digital platforms. 

Copyright infringement has established itself as one of the most pressing constraints to video production for YouTube creators. The danger of having a video demonetized or permanently removed from the platform due to a copyright strike is high especially for ones who employ external content for their own videos, and “copyright remains at the centre of industry struggles for power and control” (Burgess and Green 2018, 44). YouTube has historically struggled to develop precise and homogeneous automated copyright moderators; therefore, manual fraudulent or weaponized copyright claiming has become an issue for the platform’s content creators (Sands 2018). Excessive copyright striking can cause severe problems for YouTube creators. It can lead to suspension of revenues and, in extreme cases, result in a permanent ban from the platform.  

In April 2016, YouTube personality Matt Hoss filed a civil action lawsuit against husband-and-wife team Ethan and Hila Klein, also known as H3H3 (BBC News 2017). H3H3 Production is a commentary YouTube channel, a genre that is based on a critical replication of other individual’s content. Plaintiff Hoss filed the lawsuit under three significant claims: misrepresentation, copyright infringement and defamation. The court concluded that the reaction video H3H3 Productions uploaded on YouTube constituted under fair use, despite it replicating a large portion of Hoss’s copyrighted content (Carrington 2018). Furthermore, Judge Katherine Forrest ruled that “the defendants’ comments regarding the lawsuit are either non-actionable opinions or substantially true as a matter of law”, and for this reason, the plaintiff’s defamation claims failed. Ethan Klein subsequently posted a video celebrating their monumental win, proclaiming that “this is a landmark case, not just for us, but the wording the judge put in is going to strengthen fair use across YouTube”. This lawsuit had profound repercussions on the future of copyright on YouTube as it established a lawful precedent for future legal disputes. Although YouTube copyright laws continue to be ambiguous, this lawsuit has shed light on the situation. 

This study investigates the discourse of copyright infringement and fair use policies on YouTube. Through a qualitative content analysis of 18 videos, we explore how YouTube content creators understand copyright enforcement laws on the platform and how they navigate this exceedingly technical operation system. Our study offers valuable insights into how platform moderation systems such as copyright bylaws influence cultural producers such as YouTube content creators. 

Research Context 

In recent years, the concept of platformization has been developed to explain how platforms have become central organizers of different spheres of life. Most relevantly, Poell, Nieborg, and van Dijck defined it as “the penetration of the infrastructures, economic processes, and governmental frameworks of platforms in different economic sectors and spheres of life […] the reorganization of cultural practices and imaginations around platforms.” (2019, 5). Rather than being independent entities, platforms construct a sort of ecosystem which, at least in the European/North American context, is currently dominated by the so-called Big Five: Google, Amazon, Facebook, Apple, Microsoft (GAFAM) (van Dijck, Poell, and de Waal 2018, 15). YouTube is a connective platform owned by Alphabet. This umbrella corporation encapsulates all of Google’s products and services, making it part of one of the most influential platform corporations worldwide. Through the frame of platformization, platforms have been identified as complex, multi-sided markets in which the interests of several actors intersect (Poell, Nieborg, and van Dijck 2019). Connective platforms such as YouTube depend on creators to provide products or services, in this case, videos, rendering video producers platform complementors. But they also depend on actors such as advertisers to make monetization possible. YouTube is then a multi-sided platform orchestrating the relationships between different actors, from end users to advertisers. This includes relations to the judiciary system, in particular the one of the United States. While operating on a global scale, YouTube must then respond to the legal limitations set and enforced by the US legal system.

Theories of platformization have also addressed how cultural products are inherently contingent on the fast-changing platform ecosystem (Nieborg and Poell 2018, 4289). Because of their role as platform complementors, digital creators are incentivized to optimize their production in the interests of other actors of the multi-sided market, making platform distribution and monetization significant constraints in content production (ibid., 4287). YouTube creators, often referred to simply as YouTubers, have been defined as social media entrepreneurs who professionalize video production of original content while creating and closely interacting with a community (Kaye and Gray 2021). Professional YouTube creators depend on monetization systems dictated by the platform, making them particularly susceptible to changing governance. 

Copyright infringement, then, is a central issue for YouTube creators. According to the platform, when rights holders submit legal and complete takedown requests, the account posting the contested video will receive a ‘strike’. After three strikes, the account may be terminated and content removed from the website (Youtube 2021). While this policy is in place to safeguard content, YouTube’s system of copyright enforcement is “notoriously prone to error” and “largely insensitive to exceptions to copyright such as fair use or fair dealings.”(Kaye and Gray 2021, 2). 

Methodology

The approach by Kay and Gray (2021) was taken as a point of departure for this study, however, an adjustment of methods to the scale and scope of our investigation was in order. Rather than conducting manual sentiment analysis, we opted for an iterative and inductive content analysis of videos. Furthermore, the focus of this investigation was specifically the genre of YouTube creators belonging to the commentary genre. 

Genres are challenging to pinpoint and isolate, posing some methodological challenges to the conceptualization and operationalization of commentary YouTube and hence to the creation of a representative corpus. We define commentary YouTube as an umbrella term for various videos in which the creator actively engages with and proposes a critical perspective on content they did not create for the purpose of entertainment. The videos in question must include the creator watching and actively commenting on such external content, which must be shown in the video. We selected this genre as relevant to the copyright question because of its continuous engagement with material to which they have no rights beyond fair use. The inclusion in this category is also contingent on the understanding and self-categorization of creators. For example, film commentary is also a sub-category under this general definition, but creators engaging with this sort of content tend to categorize their videos as a separate genre. 

For our corpus, we selected 18 videos from a range of YouTubers belonging to the commentary genre , mainly focusing on the ones with a more established audience, viewership, and community. We did this to obtain a representative sample of popular commentary creators who confronted themselves with copyright on YouTube for a longer time throughout different iterations of copyright regulations.

There are a few limitations to this methodology. The selection of videos is somewhat affected by a few biases, including possibly personalized YouTube search results based on our previous use of the platform. Furthermore, since tackling a genre that is somewhat challenging to circumscribe, we partially had to rely on our situated knowledge of such a genre to identify creators whose content was to be considered part of commentary YouTube . Nonetheless, this reflexivity and reliance on personal experiences to create the corpus could be regarded as a valid and positive contribution to the method. This is because our subcultural, community-based knowledge could contribute to selecting relevant individuals within the genre. 

Findings and Discussion

Two problems immediately arose: at the start of our research, we wanted to see how the conversation had changed before and after the H3 lawsuit. Right away, we noticed that the conversation around copyright infringement and copyright claims mainly started after the h3h3production and Matt Hosseinzadeh lawsuit. This finding made us consider the relevance of the H3 lawsuit, which is, in fact, often used by other YouTubers as an example of how fair use was treated in court. As a matter of fact, the H3 lawsuit is the only example (together with the Ray William Johnson and Jukin Media lawsuit in 2014 and 2015) of how fair use was disputed and fought in court. 

The videos where YouTube creators first brought up the issue primarily dated back to 2016, and then resumed in 2018 and 2019. So whereas our initial research wanted to focus on how the conversation about copyright infringement had changed pre and post H3 lawsuit, in the study and analysis of the data, we realized how the conversation was almost wholly absent pre-2016.

Another crucial aspect to indicate is how from 2016 until the beginning of 2018, there were many aspects of confusion among the analyzed creators, questioning YouTube transparency and what fair use truly stands for. Only from the end of 2018 until now creators seem to have a complete understanding of the issue behind fair use. We also noticed how the conversation around YouTube copyright issues revolved around four main themes: monetization , appeal of a claim, YouTube absence , and claimed content .

The main argument of most, if not all creators, was regarding the financial aspect. The idea of creating content for pleasure and passion was often mentioned, but the notion that YouTube is where their primary revenue comes from is persistently reminded to the audience. So that is where the matter truly comes in: the fact that videos are usually claimed in the first three days from the release (which is the time frame in which most of the monetization comes in) and that the revenue from that video will go directly to the complainant constitute a big issue. Furthermore, despite the monetization of the video itself, sometimes the video has to stay up and cannot be removed for contractual reasons. For instance, it is set out in a partnership between a creator and a brand.

The second most debated issue was regarding the appeal of a claim. Most creators explained that once a copyright claim is issued and they, as creators, receive the notice, it is almost impossible, if not ineffectual, to appeal the claim as fair use. Since YouTube decides not to take any part in the issue but instead leaves the resolution of the problem between the creator and the rightsholder. Most of the time, creators described the rights holders as third party companies with little to no understanding of how the platform actually works. So if the creator decides to appeal the claim, the request would directly go to the rights holder, who will still refuse the request in most cases. That would result in the creator receiving a strike on their channel, or if still convinced to be correct, they will have to fight the claim in court. That is a risk nobody is willing to take as YouTube has a 3-strike policy on copyright infringement: the first strike is a warning, the second strike is also a warning. Still, it might also cause demonetization, whereas the third strike will permanently delete the creator’s account and ban him from creating any other account. 

YouTube, in this regard, is entirely absent from supporting its creators. The only cases where YouTube actually intervened in any claim complaint were the ones where creators had connections with YouTube headquarters or in situations where there was public outrage, and so YouTube felt pressured to look into the matter, most analyzed YouTubers point out. This brings us to another point: the only backlash of filing a false claim comes through public outcry towards people who abuse the system. Although failing a false copyright claim is illegal, there are no consequences for a potential system abuser. 

The last theme that YouTube creators significantly talked about was regarding who files the claim and why copyright claims are filed. Rights Holders do not always complain when their content moves from their platform to one of the commentary channels. Every creator that we analyzed noticed that the claimed content were videos where the rights holder was made fun of or criticized. That brought us to the conclusion that rights holders are aware of how commentary channels that re-share and react to their videos bring new subscribers and views to their channels. That is, for example, the case with The Nintendo Creators Program, which shut down in November 2018 when they realized that commentary channels were giving free publicity to their games (Kokatu.com). But, somehow when creators are mocked and made fun of, it is as if the free marketing is not accepted anymore, given that the traffic the rightsholder receives will mainly come from critical viewers. 

Conclusion  

This research project sought to uncover the discourse surrounding copyright infringement and fair use policies on commentary YouTube . In the iterative and inductive content analysis, 18 videos were analyzed to find four main themes that creators deal with, namely monetization , appeal of a claim, YouTube absence , and claimed content. Our study proposes that the discourse around copyright infringement laws on YouTube has become increasingly more prevailing throughout the last 5 years. Furthermore, it found that amongst the analyzed creators, YouTube’s lack of transparency and involvement in the issue is what concerns them the most. 

As cultural content becomes contingent, it is essential to bring a critical perspective towards the objects we can find on platforms, as they are inherently informed by sometimes opaque and restrictive platform policies. To complicate this, such forms of platform governance are deeply entangled with the judiciary system. And even if such institutions remain external to platforms, their position and reach are profoundly influential on the possible field of action for cultural producers, such as in the case of YouTube. Hence, researchers must take critical evaluations and investigations of the pitfalls of copyright law to uncover the constraints to cultural production online. The replication and remix of external content seem to be an integral and endemic aspect of digital culture. Still, as platforms extend their power over more and more parts of the web, such practices become increasingly more challenging to sustain.

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CodyKo, bad news :( , December 29, 2018, https://www.youtube.com/watch?v=_x2pHhbZheA&ab_channel=CodyKo   

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How Explaining Copyright Broke the YouTube Copyright System

This is a story about how the most sophisticated copyright filter in the world prevented us from explaining copyright law. It doesn’t involve TikTok dance moves or nuanced 90s remixes featuring AOC . No, it involves a debate at a law school conference over how and when one song can infringe the copyright of another and how exactly one proves in a courtroom if the accused song is “substantially similar” enough to be deemed illegal. In the end, because it was blocked by one of the music companies who owns the song, it also became a textbook study in how fair use still suffers online and what it takes to pushback when a video is flagged. A copyright riddle wrapped up in an algorithmic enigma, symbolic of the many current content moderation dilemmas faced by online platforms today.

If you want to watch the video it is available here . If you prefer to listen to it you can subscribe to the Engelberg Center Live Events podcast here . And if you are curious about how new European laws about copyright filtering may impact this sort of situation in the future both inside and outside of Europe, you might be interested in our upcoming conference examining online copyright liability A New Global Copyright Order? on April 20, 2020. You can find out more information about that conference here.

Embedded content: https://www.youtube.com/watch?v=UVQTz65Bq70

The video in question was a recording of the “Proving Similarity” panel, which was part of the Engelberg Center’s Proving IP symposium in May of 2019. The panel, which was moderated by Professor Joseph Fishman , featured presentations and discussions by Judith Finell and Sandy Wilbur . Ms. Finell and Ms. Wilbur were the musicologist experts for the opposing parties in the high profile Blurred Lines copyright infringement case. In that case the estate of Marvin Gaye accused Robin Thicke and Pharrell Williams of infringing on Gaye’s song “Got to Give it Up” when they wrote the hit song “Blurred Lines.”

The primary purpose of the panel was to have these two musical experts explain to the largely legal audience how they analyze and explain songs in copyright litigation. The panel opened with each expert giving a presentation about how they approach song analysis. These presentations included short clips of songs, both in their popular recorded version and versions stripped down to focus on specific musical elements.

The Takedown

The video used clips of the songs in question to illustrate specific points about how they were analyzed in the context of copyright infringement litigation. As such, we were confident that our use of the songs were covered by fair use and disputed the claims using YouTube’s internal system.

Shortly thereafter we received notice that the rightsholder was rejecting our dispute on multiple songs.

The Decision and the Question

Still confident that our uses were covered by fair use, we researched the YouTube counternotification process . We discovered that if we continued to challenge the accusation of infringement and lost, our video would be subject to copyright strikes . If the account was subject to multiple strikes its ability to live stream could be restricted or the account could be terminated. While our colleagues in the communications department were highly supportive of our efforts, they were concerned that one misstep could wipe NYU Law’s entire YouTube presence off the internet.

In deciding how we could continue to press our case, one question was unclear. Our single video was subject to multiple copyright infringement claims. If we failed to prevail, would that mean that the account was subject to one copyright strike because all of the claims were against a single video, or multiple strikes tied to each claim against the single video? As there were four remaining claims against our video, and three claims could result in the termination of the account, the distinction was highly relevant to us.

Unfortunately, we still do not know the answer to that question. This page seems like the closest to one having an answer, but it does not provide one to our specific question. We tried using the ‘Was this helpful?’ link at the bottom to get additional information, but YouTube did not respond.

The Resolution

This would have been a dead end for most users. Unable to understand how the already opaque dispute resolution process might impact the status of their account, they would have to decide if it was worth gambling their entire YouTube account on the chances that their some combination of YouTube and the rightsholder would recognize their fair use claim.

Since we are the center at NYU Law focused on technology and innovation, it was not a dead end for us. We reached out to YouTube through private channels to try to get clarity around the copyright strike rules. While we never got that clarity, some weeks later we were informed that the claims against our video had been removed.

The Takeaway

What lessons can be learned from this process.

First, it highlights how challenging it can be for users with strong counter-arguments to dispute an allegation of infringement by large rightsholders. The Engelberg Center is home to some of the top technology and intellectual property scholars in the world, as well as people who have actually operated the notice and takedown processes for large online platforms. We had legal confidence in our position that would cost an average user tens of thousands of dollars (if not more) to obtain. Even all of those advantages were not enough to allow us to effectively resolve this dispute. Instead, we had to also rely on our personal networks to trigger a process - one that is still unclear - that resulted in the accusations being removed. This is not a reasonable expectation to place on average users.

Second, it highlights the imperfect nature of automated content screening and the importance of process when automation goes wrong. A system that assumes any match to an existing work is infringement needs a robust process to deal with the situations where that is not the case. Our original counterclaim included a clear explanation of the nature of the video and the reasons for using the clips. It is hard to imagine someone with any familiarity with copyright law watching the video, reviewing our claim, and then summarily rejecting it. Nonetheless, that is what happened. No matter how much automation allows you to scale, the system will still require informed and fair human review at some point.

Third, it highlights the costs of things going wrong. The YouTube copyright enforcement system is likely the most expensive and sophisticated copyright enforcement system ever created. If even this system has these types of flaws, it is likely that the systems set up by smaller sites will be even less perfect.

Nonetheless, we are happy that the video has been restored. You can watch it - along with all of the other videos from Proving IP - on the NYU Law YouTube channel. You can also listen to the audio from it and all of the Engelberg Center’s events by subscribing to our live events podcast .

Finally, Europe has recently passed legislation designed to oblige more websites to implement automated copyright filters. Our event A New Global Copyright Order? on April 20 will examine how that legislation will impact Europe and the worldwide conversation around copyright law. We hope to see you there.

139 MacDougal Street Room 408, New York, NY 10012

[email protected]

@nyuengelberg

YouTube must face artists' lawsuit over copyright protections

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Copyright Infringement on YouTube: Understanding Consequences and Best Practices

Introduction

In today's digital age, where content creation is king, protecting one's intellectual property rights has become increasingly important. One form of intellectual property that is often at risk of infringement is copyright.

Copyright is a legal concept that gives the owner of a creative work exclusive rights to its use and distribution.

In this article, we will explore how YouTubers sometimes get away with copyright infringement and the consequences of doing so. We'll also discuss the importance of protecting intellectual property rights, tailored to our target buyer personas: cross-border e-commerce company owners, software companies looking to expand internationally, and intellectual property managers.

How Do YouTubers Infringe Copyright?

YouTubers may inadvertently or intentionally infringe copyright in several ways. The most common ways include:

• Uploading copyrighted material without permission

Using copyrighted material in their videos without permission

• Failing to attribute the source of the copyrighted material

Uploading Copyrighted Material Without Permission

Uploading copyrighted material, such as music, videos, or images, without permission from the owner, is a form of copyright infringement. 

This can lead to the video being removed from YouTube or even legal action being taken against the YouTuber.

YouTubers may use copyrighted material, such as footage from movies or TV shows, without permission from the copyright owner. 

This can be considered copyright infringement and can lead to a copyright strike or even legal action.

Failing to Attribute the Source of the Copyrighted Material

Even if a YouTuber has obtained permission to use copyrighted material, failing to attribute the source of the material can lead to copyright infringement. It's essential to give proper credit to the owner of the material used in the video.

By infringing copyright, YouTubers risk damaging their reputation and facing legal and financial consequences. In the following sections, we'll discuss how some YouTubers get away with copyright infringement and the best practices for avoiding it.

• One real-world example of this is the case of musician Pharrell Williams and his hit song "Blurred Lines." In 2015, a court ruled that Williams and his co-writer Robin Thicke had infringed on the copyright of Marvin Gaye's "Got to Give It Up." The court found that while "Blurred Lines" was not a direct copy of "Got to Give It Up," it did borrow many elements from Gaye's song without proper attribution.
• Another example is the case of YouTube content creator PewDiePie. In 2018, PewDiePie faced backlash when it was discovered that he had used racist and anti-Semitic content in his videos without proper attribution or context. While PewDiePie argued that the content was intended as satire, many viewers and advertisers were outraged, and several major brands pulled their ads from his channel.

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How Do YouTubers Get Away With Copyright Infringement?

While copyright infringement is a serious offense, some YouTubers have found ways to use copyrighted material without getting into legal trouble. Here are some common ways YouTubers get away with copyright infringement:

Fair Use Doctrine

Fair use is a legal doctrine that allows the limited use of copyrighted material without permission from the owner. This doctrine is often applied to situations where the use is transformative, for example, commentary, criticism, news reporting, teaching, scholarship, or research. The doctrine provides a defense against copyright infringement claims, but it is not an absolute defense and is decided on a case-by-case basis.

Using the fair use doctrine is one way that YouTubers may avoid copyright infringement when using copyrighted material in their videos. Fair use is a legal principle that allows the use of copyrighted material without permission from the copyright holder under certain circumstances, such as for criticism, commentary, news reporting, teaching, scholarship, or research.

For example, a YouTuber may use a clip from a movie or a song in their video to criticize or comment on the work or to provide news reporting or educational content. This use may be considered fair use if it is transformative and does not substitute for the original work.

However, it's important to note that fair use is not a blanket exception to copyright law and is assessed on a case-by-case basis. The determination of whether a particular use of copyrighted material qualifies as fair use is based on four factors: the purpose and character of the use, the nature of the copyrighted work, the amount and substantiality of the portion used, and the effect on the potential market for or value of the copyrighted work.

An example of fair use on YouTube is the channel "The Late Show with Stephen Colbert". The show often features clips of news segments or political speeches, which are used to provide comedic commentary and criticism. The use of the clips is transformative and does not substitute for the original works. Additionally, the show's use of the clips does not negatively impact the market for or value of the original works.

Parody and Satire

Parody and satire are forms of artistic expression that use elements of copyrighted material to create a new work. Parodies imitate the style and tone of the original work but often use exaggerated or distorted features to make a point. Satire uses humor, irony, or exaggeration to comment on society or politics. Both are often protected under fair use.

To qualify as parody or satire under the fair use doctrine, the work must comment on or criticize the original material in a transformative way, meaning it must add a new meaning or message to the original work. This often involves using the original work as a tool for commentary or criticism.

One example of a successful parody on YouTube is the "Bad Lip Reading" channel, which takes clips from movies, TV shows, and political speeches and dubs them over with humorous and nonsensical dialogue. Another example is the YouTube channel "Honest Trailers," which creates parodies of movie trailers that poke fun at the films in question. It's worth noting that not all parodies or satirical works will automatically be considered fair use under copyright law. The transformative nature of the work and its commentary or criticism of the original material must be taken into account on a case-by-case basis.

Public Domain Materials

Public domain materials are creative works that are not protected by copyright or whose copyright has expired, making them available for anyone to use without permission. This includes works whose copyright has expired, such as Shakespeare's plays or Beethoven's symphonies, as well as works that were never protected by copyright, such as government documents or laws.

Using public domain materials can be a great way for YouTubers to avoid copyright infringement. However, it is important to note that not all works are in the public domain, and determining whether a work is in the public domain can be complex. For example, while the works of Shakespeare are in the public domain, a specific translation or performance of his plays may be protected by copyright.

Some examples of public domain materials that YouTubers can use include:

• Classic literature and poetry, such as the works of Jane Austen or Edgar Allan Poe
• Historical documents, such as the U.S. Constitution or the Magna Carta
• Artworks that have fallen out of copyright, such as the works of Vincent van Gogh or Leonardo da Vinci
• Folk songs and traditional music that have been passed down through generations

Using public domain materials can not only help YouTubers avoid copyright infringement but also add depth and historical context to their content. However, it is important to do proper research to ensure that the materials being used are indeed in the public domain and not still protected by copyright.

Using Material Under Creative Commons Licenses

Using materials under the Creative Commons (CC) license is a great way to avoid copyright infringement on YouTube. Creative Commons is a non-profit organization that provides a legal framework for content creators to share their work while retaining some of their rights. The CC license allows creators to choose how their work can be used, whether it can be modified, and whether it can be used for commercial purposes.

There are several types of CC licenses available, each with different terms and conditions. For example, some licenses require attribution, while others do not. Some licenses allow for commercial use, while others do not. As a YouTuber, it's important to understand the terms of the license before using any CC-licensed material.

One example of a YouTuber using CC-licensed material is Hank Green, who runs the YouTube channel SciShow. In one of his videos, he used a photo from Flickr that was licensed under CC BY 2.0. He properly attributed the photo and used it in accordance with the license terms. Another example is the YouTube channel Crash Course, which produces educational videos on a variety of topics. They always properly attribute the sources of the material and use it in accordance with the license terms.

Using CC-licensed material not only helps YouTubers avoid copyright infringement, but it also helps support content creators who are willing to share their work under more permissive terms. As always, it's important to properly attribute sources and use the material in accordance with the license terms to avoid any legal issues.

It's worth noting that while these methods may offer some protection, they do not guarantee that a YouTuber won't face legal action for copyright infringement. It's always best to obtain permission from the copyright owner before using any copyrighted material.

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The Consequences of Copyright Infringement

While some YouTubers may get away with copyright infringement, the risks of doing so are significant. Here are some of the potential consequences:

Civil Penalties

Copyright owners can sue YouTubers for copyright infringement and seek damages. These damages can include lost profits and statutory damages, which can range from $750 to $30,000 per work infringed. If the infringement is found to be willful, the damages can increase to $150,000 per work.

Civil penalties are legal consequences that can arise from copyright infringement on YouTube. These penalties typically involve the payment of monetary damages to the copyright owner. The amount of damages can vary depending on the severity of the infringement, the duration of the infringement, and the extent of the harm caused to the copyright owner.

For example, in 2019, the popular YouTuber, Jake Paul, was sued by a composer for allegedly using his music in a YouTube video without permission. The composer sought damages of up to $150,000 per infringement, plus attorney's fees and costs. Although the case was later settled out of court, it serves as a cautionary tale for YouTubers who may be tempted to use copyrighted material without permission.

Another example is the case of Universal Music Group (UMG) vs. Stephanie Lenz, which became known as the "Dancing Baby" case. Lenz uploaded a video to YouTube of her toddler son dancing to a song by Prince. UMG claimed that the video contained copyrighted material and issued a takedown notice under the Digital Millennium Copyright Act (DMCA). Lenz filed a counter-notice, arguing that the video was protected under fair use. The case eventually went to court, where a judge ruled in favor of Lenz, stating that UMG had not considered whether the use of the copyrighted material in the video constituted fair use. The case highlights the importance of understanding fair use and the limitations of copyright law when uploading content to YouTube.

Criminal Penalties

In some cases, copyright infringement can result in criminal charges, especially if the infringement is willful and for commercial gain. Criminal penalties can include fines and imprisonment.

Criminal penalties are a more severe form of punishment that can be imposed on YouTubers who have committed copyright infringement. While most copyright infringement cases are dealt with through civil litigation, in some cases, criminal charges may be brought against the infringer.

In the United States, criminal penalties for copyright infringement can be severe. According to the U.S. Department of Justice, a first-time offender can be fined up to $250,000 and sentenced to up to five years in prison. Repeat offenders face even steeper fines and longer prison sentences.

One high-profile example of a YouTuber facing criminal charges for copyright infringement is the case of Megaupload founder Kim Dotcom. In 2012, Dotcom was arrested in New Zealand at the request of U.S. authorities, who accused him of facilitating massive copyright infringement through his file-sharing website. Dotcom has been fighting extradition to the United States ever since and has become a vocal advocate for internet freedom and privacy rights.

Other countries also have criminal penalties for copyright infringement. In the United Kingdom, for example, copyright infringement can result in a fine and a maximum sentence of 10 years in prison. In Germany, copyright infringement can result in a fine or imprisonment for up to three years.

Impact on the Reputation of the YouTuber

Copyright infringement can damage a YouTuber's reputation, especially if the infringement is intentional or seen as unethical. This can lead to a loss of subscribers, sponsors, and potential business opportunities.

When a YouTuber is found guilty of copyright infringement, it can significantly damage their reputation. Many people associate stealing content with dishonesty and lack of creativity, which can lead to a loss of respect from the audience, sponsors, and other stakeholders.

For instance, in 2017, PewDiePie, the most subscribed YouTuber at the time, faced backlash when he used racial slurs in one of his videos. Following the incident, several companies that had partnerships with him, such as Disney and YouTube Red, cut ties with him. PewDiePie's reputation took a hit, and he lost a significant amount of subscribers.

Similarly, in 2018, the popular beauty YouTuber Laura Lee faced criticism after old racist tweets resurfaced. As a result, many of her subscribers and sponsors withdrew their support, and she took a hiatus from creating content. Her reputation has been tarnished, and it has affected her ability to attract sponsors and new subscribers.

These examples show that copyright infringement is not the only factor that can harm a YouTuber's reputation, but it can be one of the most damaging. It is crucial for YouTubers to respect intellectual property rights and create original content to maintain the trust and support of their audience and sponsors.

DMCA Takedown Notices and Copyright Strikes

DMCA takedown notices and copyright strikes are two common consequences of copyright infringement on YouTube. The Digital Millennium Copyright Act (DMCA) is a law that provides legal guidelines for online service providers (OSP) to follow in dealing with copyright infringement claims. YouTube is an OSP, and it has a system in place to handle DMCA takedown notices.

When a copyright holder believes that their content has been used without their permission on YouTube, they can submit a DMCA takedown notice to YouTube. The notice must include certain information, such as a description of the copyrighted work, the location of the infringing material on YouTube, and contact information for the copyright holder. 

Once YouTube receives a valid DMCA takedown notice, it will remove the infringing material from its platform. The uploader may also receive a copyright strike on their account, which can lead to account termination if they accumulate too many strikes.

Copyright strikes on YouTube can have a significant impact on a YouTuber's ability to monetize their content and grow their audience. For example, if a YouTuber receives three copyright strikes, their channel will be terminated. Additionally, even if the copyright holder does not file a DMCA takedown notice, YouTube's Content ID system can automatically detect copyrighted material and issue a copyright claim against the video. This can result in revenue being redirected from the YouTuber to the copyright holder.

One high-profile example of DMCA takedown notices and copyright strikes on YouTube occurred in 2013 when video game developer Nintendo issued a large number of takedown notices against YouTubers who had uploaded videos featuring Nintendo games. This action was met with significant backlash from the YouTube community, and Nintendo eventually entered into a revenue-sharing agreement with some YouTubers to allow them to continue uploading Nintendo game videos.

Best Practices for Avoiding Copyright Infringement

As a YouTuber, it's important to understand the best practices for avoiding copyright infringement. Here are some tips to help you stay within the bounds of the law:

Obtaining Permission to Use Copyrighted Material: 

If you want to use copyrighted material in your videos, you need to obtain permission from the copyright owner. This can be done through licensing agreements or by contacting the owner directly. Keep in mind that obtaining permission can be a lengthy and costly process, so it's always best to create original content whenever possible.

Creating Original Content: 

One of the best ways to avoid copyright infringement is to create original content. This means coming up with your own ideas and producing your own videos, images, and audio tracks. By doing so, you'll be able to maintain complete control over your intellectual property and avoid any potential legal issues.

Properly Attributing Sources: 

If you do decide to use copyrighted material, it's important to properly attribute the source. This means giving credit to the original creator and providing a link to the source material in your video description. Failure to properly attribute sources can result in copyright infringement claims.

Understanding Fair Use and its Limitations: 

Fair use allows for limited use of copyrighted material without permission for purposes such as criticism, commentary, news reporting, teaching, scholarship, or research. However, fair use is a complex legal doctrine, and it's important to understand its limitations. Factors such as the purpose and character of the use, the nature of the copyrighted work , the amount and substantiality of the portion used, and the effect on the market for the original work will all be considered in determining whether a particular use is fair or not.

• Drawing Explanations
• Which Service Do I Need?
• Unlocking the Soundtrack: How to Obtain Permission for Music Use on YouTube

As you can see, copyright infringement is a serious issue that YouTubers need to be aware of. By understanding the legal implications of using copyrighted material, they can avoid costly penalties and protect their reputation. If you're a cross-border e-commerce company owner, a software company looking to expand internationally, or an intellectual property manager, it's important to educate yourself on copyright law to avoid infringement and protect your assets.

In conclusion, copyright infringement is a serious issue for YouTubers, and it's important to understand the potential consequences of violating intellectual property rights. While fair use and other legal doctrines may provide some protection, it's always best to err on the side of caution and create original content whenever possible. 

By following best practices such as obtaining permission, properly attributing sources, and understanding fair use, you can help ensure that your content stays within the bounds of the law. Remember, respecting intellectual property rights not only protects creators but also helps foster a culture of innovation and creativity.

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• "What Is Public Domain?," by Copyright Laws, https://www.copyrightlaws.com/what-is-the-public-domain/  
• “About the Licenses – What Our Licenses Do,” by the Creative Commons, https://creativecommons.org/licenses/  
• “Beauty Blogger Laura Lee Falls From Grace Over Racist Tweets,” by Becky Bargh, https://www.cosmeticsbusiness.com/news/article_page/Beauty_blogger_Laura_Lee_falls_from_grace_over_racist_tweets/146683  
• “Disney Severs Ties with YouTube Star PweDiePie Over Antisemitic Videos,” by Olivia Solon, https://www.theguardian.com/technology/2017/feb/13/pewdiepie-youtube-star-disney-antisemitic-videos  
• “How Long Dies Copyright Protection Last?,” by the U.S. Copyright Office, https://www.copyright.gov/help/faq/faq-duration.html  
• “How to Avoids Copyright Claims on YouTube,’ by Mary Woodcock, https://lickd.co/blog/music-licensing/avoid-copyright-youtube#:~:text=Only%20use%20content%20that%20you,ll%20be%20the%20copyright%20owner . 
• “Intellectual Property and Your Work,” by the Intellectual Property Office, https://www.gov.uk/intellectual-property-an-overview  
• “Jake Paul Sued After Reportedly Stealing Music for Litmas Song,” by Virginia Glaze, https://www.dexerto.com/entertainment/jake-paul-sued-after-reportedly-stealing-music-for-litmas-song-1302525/  
• “Lenz v. Universal,” by Electronic Frontier Foundation, https://www.eff.org/cases/lenz-v-universal  
• “Measuring Fair Use: The Four Factors,” by the Stanford Libraries, https://fairuse.stanford.edu/overview/fair-use/four-factors/#parody  
• “Nintendo Finally Allows YouTube Creators to Make Money Off Videos of Its Games,” by Blair Hanley Frank, https://www.geekwire.com/2015/nintendo-finally-allows-youtube-creators-make-money-off-videos-games/#:~:text=The%20company%20announced%20a%20new,channels%20only%20focused%20on%20Nintendo . 
• “Pharell Williams and Robin Thicke to Pay $7.4M to Marvin Gaye’s Family Over Blurred Lines,” by Associated Press, https://www.theguardian.com/music/2015/mar/10/blurred-lines-pharrell-robin-thicke-copied-marvin-gaye#:~:text=A%20jury%20awarded%20Marvin%20Gaye's,biggest%20hit%20song%20of%202013 . 
• “Policies & Guidelines,” by Youtube, https://www.youtube.com/creators/how-things-work/policies-guidelines/  
• “Prosecuting Intellectual Property Crimes,” by The Office of Legal Education Executive Office for United States Attorneys, https://www.justice.gov/file/442151/download  
• “Protecting Copyrighted Content Online: Understanding the Legal Process for Content Removal,” by DMCA, https://www.dmca.com/FAQ/What-is-a-DMCA-Takedown  
• “U.S. Copyright Office Faire Use Index,” by the U.S. Copyright Office, https://www.copyright.gov/fair-use/  
• “What Does Copyright Protect?” by the U.S. Copyright Office, https://www.copyright.gov/help/faq/faq-protect.html  
• “YouTube Content ID,” by YouTube Creators, https://www.youtube.com/watch?v=9g2U12SsRns  

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YouTube Case: Copyright Infringement of Music and Films Essay

Introduction, methodology, cases of copyright infringement by youtube.

In reference to Ottaviani and Pudelka (2007), YouTube is one of the most famous sites that enable users to share music and films. It was founded in 2005 and reported to be one of the fastest-growing public sites after one year. According to YouTube (2015), the company was purchased by Google in 2006. The website has been subjected to many lawsuits relating to copyright infringement. The research utilizes a case study design to analyze various cases relating to copyright infringement. It reveals that the most common penalty is the removal of the materials uploaded. The research concludes that copyright infringement limits the promotion of communication and culture.

Music and films are important in the promotion of culture (Ottaviani & Pudelka, 2007). Additionally, a copyright ensures that the owners of the music get credit and benefit from their efforts. In the presence of copyright laws, the owners are able to get creative and obtain economic benefits. Copyright infringement limits the role of music and films in culture. This research focuses on YouTube’s copyright infringement of music and films as it hinders the promotion of culture and communication. The company was purchased for 1.65 billion dollars, and Google had to cover more than 150 million dollars that were related to copyright infringement cases.

Viacom accused YouTube of copyright infringement and demanded the removal of unauthorized contents from the site. According to Ottaviani and Pudelka (2007), the case ended after both companies agreed to share revenues from advertising. Other cases presented in the research include Rand’s presidential campaign video, Pharrell Garcia’s lawsuit, and Lenz and Jonathan on fair use. YouTube (2015) indicates that most of the copyright infringement issues are brought about by its users.

Ottaviani and Pudelka (2007) note that the penalties for copyright infringement vary from cases to cases. In regard to the cases represented in this research, the penalties included the removal of the videos from the site. The aim of the current research is to assess YouTube’s copyright infringement of music and films. Additionally, the research utilizes a case study methodology to explore some of the copyright infringement cases that have faced YouTube in the past. Therefore, it connects to the research question, which is how is that case study contributes to the production and distribution of culture.

Law of YouTube on copyright, actions, and penalties

Mashable (2015) indicates that YouTube has faced a lot of lawsuits in the past that relate to copyright infringement. As a result, the company has various laws that try to limit the number of lawsuits. However, the incorporation of the advertising platform in 2006 has increased the number of copyright lawsuits (Breen, 2002). YouTube (2015) indicates that one of the laws involves the restriction of the materials uploaded on the website. Based on the website:

“ Under the Digital Millennium Copyright Act (DMCA), YouTube isn’t responsible for the copyright violations of its users, provided the company removes that content when notified by the rights holders” (Mashable, 2015).

The DMCA is a copyright law in the United States, and it protects the company from copyright infringement among the users. Specifically, the company cannot be sued if the copyright materials are removed after complaints from the owners. According to Ottaviani and Pudelka (2007), the DMCA’s section 512 offers a safe harbor for the company since violations from the users are inevitable. However, scholars have argues that one of the weaknesses of the DMCA is that it is too old a law (10 years) to protect a company that keeps changing its technologies.

It is important to say that the presence of the DMCA does not mean that the company will not face lawsuits but rather acts as a platform through which such cases can be argued and expose their infringements to their right through. There are three main requirements stipulated by the DMCA in a bid to protect the company from copyright liability (Ottaviani & Pudelka, 2007). The first requirement, a company has to fit the definition of a “service provider” (Ottaviani & Pudelka, 2007, p.10).

YouTube is recognized as a service provider under the DMCA. The second requirement, a company has to have copyright laws that terminate the accounts of those users who infringe the copyright law. You tube’s copyright law stipulates that repeat offenders of copyright infringement should have their accounts terminated. The last requirement, a company, should never alter the procedures in which copyright owners protect their materials. It is important to know that YouTube does not interfere with the copyright protection processes of the users. Therefore, the DMCA protects YouTube since the company complies with the three requirements. Conversely, the DMCA has not always provided a safe harbor for all the copyright infringement lawsuits against the company, which is another weakness of the law.

YouTube introduced better technologies to curb copyright infringement; in establishing the Content ID system. This system enables the company to get prompt notifications concerning infringement and apply the takedown requests. Mashable (2015) indicates that the Content ID allows the owners to get notifications when their materials are subjected to copyright infringement. It was established in 2007 after the website stakeholders agreed that technology would help the company to avert infringement. Specifically, the system applies fingerprinting technologies on films and music uploaded on the site.

In contrast, the service faced challenges because the available fingerprinting technologies were not very effective. In reference to YouTube (2015), the music or film owners must submit copies of their materials or identification files. These files are then compared with the materials uploaded by the different users. In addition, the company affords the owners of copyrighted contents the right to develop and give policies to their works to prevent infringement.

Mashable (2015) identifies three policy alternatives given to the owners. These policies explain the repercussions of any copyright infringement among users. First, the block policy, which stipulates that in case of a content match on a video, the company should remove it. Second, the track policy, which allows the content to stay online after the company, discovers any copyright infringement. However, the owner of the material is given the opportunity to track the number of views and is given the information concerning the reviewers. Lastly, the monetize policy allows the owners to serve ads on their materials. In addition, they are given any revenues that result from such advertisements. Users who infringe on the copyright of the videos are also subjected to the ‘copyright school’ to learn more about the policies. Their accounts are terminated until after the completion of the copyright course.

YouTube’s (2015) doctrine of fair use also provides a solution in dealing with copyright infringement in the United States. The doctrine allows users to reuse copyright-protected materials without seeking consent from the owners. However, one of the major weaknesses of the web service is that it lacks proper guidelines on the actions that fall under fair use. Additionally, there are variations concerning the freedom of fair use.

Thus, the application of the doctrine depends on the kind of content, the objectives of the materials, and the locality of the users. Many users accused of copyright infringement tend to argue that they are protected by the fair use clause. Ottaviani and Pudelka (2007) argue that American law is not very clear in regard to copyright infringement by service providers like YouTube. Despite this, the penalties can either be civil or criminal. In regard to the civil penalties, the guilty parties are ordered to pay the real or statutory compensations. In the criminal penalties, the guilty parties are subjected to imprisonment for up to five years or monetary penalties of up to half a million dollars.

The current research applies a case study methodology for the collection of data. According to Simons (2009), case studies are used as an alternative to surveys and other complex research designs. It is a critical method that is effective in narrowing a very broad area of study. Moreover, it allows the creation of hypotheses that can be tested further using other research designs by having much literature review. The author notes three instances that a case study design becomes the ideal methodology. The first one is when dealing with an explanatory question, which is what I am doing in this paper: The research will explain the events that followed various copyright infringement cases against YouTube.

The second one is when comparing the research of a certain aspect within its real-world context. The third, case studies are used in evaluations. The current research presents and compares different real cases associated with copyright infringement of YouTube. Then I will explore an analysis presenting similar cases, outlines, also the responses from the users and the court rulings toward the infringement of the copyright of music and films. These cases are then compared with each other and their implications in communication and culture outlined.

Case 1: Pharrell Williams versus YouTube and Viacom versus YouTube

According to Koziol (2014), Pharrell Williams was the representative of a group of Musicians who sued YouTube due to copyright infringement. The musicians argued that the service had posted over 2,000 songs belonging to Global Music Group. However, YouTube refused to remove the music from the site. The suit stated that the service had failed to provide evidence that it had the performance rights relating to the songs. Although the lawsuit had not been filed yet, the lawyers speculated that the case would earn the musicians about one billion dollars banality. In its defense, YouTube argued that they had obtained multi-year licenses to the service to allow them to upload such music freely on the site. Pharrell’s lawyers demanded to see the right performance licenses, but again, YouTube was not cooperating with them.

According to Ottaviani and Pudelka (2007), these licenses allow service providers to use songs uploaded on their sites for public broadcast. Koziol (2014) notes that the debate came amidst a planned unveiling of Music Key by the service. The subscription would allow the service to upload concert videos. In this regard, the lawyers wanted contended music to be excluded from the platform. The law affords the service the freedom not to take action until the owners identify the type of infringement. Although the case had not yet moved to court, Koziol (2014) argues that Pharrell is unlikely to win the case based on the decisions of past lawsuits against the company. The author predicts that Pharrell will lose the case by indicating that:

“ Those who take on Goliath better watch out. YouTube has dodged several bullets over the years, including a $1 billion lawsuit filed by Viacom, a cinema and television company, in 2007” (Koziol, 2014).

Case 2: YouTube versus Viacom

Peguera (2011) indicates that the lawsuit presented grave violations of copyright by the service users. Viacom accused the service of allowing the users to upload thousands of videos owned by the company without a prior agreement. In this regard, Viacom argued that the violations were real and not protected under the DMCA. In Viacom’s lawsuit, the focuses were on the principles of secondary liability and third party violation of copyright violations. The question now, what is a secondary liability? The author defines secondary liability as a type of violation where the service provider contributes to copyright infringement by the users. In regard to secondary liability accusations, the DMCA was unable to provide a safe haven for the service, which clearly was one of the weaknesses for the users to be protected.

Additionally, the two companies had different opinions over who should bear the burden of third party copyright infringement. Viacom stated that YouTube should bear the responsibility of its user’s violation of the copyright. Mashable (2015) indicates that the regulations of YouTube blame secondary liability on the users. Peguera (2011) argues that the users had violated the doctrines of contributory and vicarious accountability. As a result, YouTube was accused of failing to control the actions of the users. However, the article does not assess the response from the users. Koziol (2014) states that the court ruled in 2010 in favor of Viacom.

The judges argued that YouTube lacked adequate information on the users who had uploaded the copyrighted materials indicating its lack of control over the users. Moreover, the court stated that the service had not removed the materials even after the lawsuit by Viacom. However, the parties sorted the matter out of court. Breen (2002) focuses on the same case and describes it as a “ murky moving target ” (152). The author argues that the DMCA is a safe harbor for most of YouTube’s copyright infringement cases. However, the service needs to alter its copyright guidelines to conform to the requirements of the courts in the United States.

The two cases provide relate to music infringement and provide evidence that YouTube’s users play a huge role in most of the copyright infringement cases. As it was clearly implied in the reading of Van Dijck that YouTube, in its mechanism, allows users to produce and distribute their own cultural content :

“YouTube’s case perfectly illustrates the need for a more comprehensive approach to the user agency.. User agency in the rhetoric of production rather than consumption” (Van Dijck, 2009).

It is also clear that the company has been unable to control the actions of the users concerning the upload of videos. While the first case focused on third-party liability, the second case focused on both third party and secondary liability. However, both cases argued that the DMCA did not offer a safe haven for the copyright infringements presented. Moreover, the first case was merely an accusation, and the musicians had not yet filed the lawsuit. In the case of Viacom, the lawsuit had already been filed, and the court ruled against YouTube. In the case involving Viacom:

“ The complaint frames YouTube as an Internet pirate seeking its fortunes by brazenly exploiting the infringing potential of digital technology” (Ottaviani & Pudelka, 2007, pp. 9-10).

Generally, both cases are not as different as they focus on similar copyright infringement by the service users. As it was said before, music plays an important role in the promotion of culture (Ottaviani & Pudelka, 2007). Copyright infringement limits the production of music, as the real owners of materials are not recognized. Thus, they are unable to produce music, which is a critical part of American culture.

Case 3: Rand versus YouTube’ and Garcia versus YouTube

The third case focuses on Rand Paul, whose presidential announcement clip was pulled down by the service. In reference to Bump (2015), the video was removed due to a copyright infringement claim by Warner Music Group. The removal was based on the Content ID system. As aforementioned, YouTube’s (2015) Content ID system consists of a database in which videos are checked for copyright infringement upon downloading. If they discover a match, the copyright owner has the authority to block the material. In this case, the content owner was Warner Music Group. The group indicated that the video contained the song “shutting Detroit Down” (Bump, 2015), which belonged to it.

The song was a lamentation of the dilapidating economy and had been produced some years back. According to Bump (2015), the Warner Music Group argued that the clip was a violation of the fair use doctrine and had abused the DMCA procedures. In the case of violation detection on the Content ID technology, the user is given an opportunity to settle the dispute with the owner before the video is uploaded again. Bump (2015) argues that the Warner Music Group should have first checked the presidential aspirant’s statistics before pulling down the video as it would have been an advantage for them in terms of an increase in revenue.

Case 4: In the fourth case concerning Cindy Lee Garcia and YouTube

Lawrence (2015) states that the actress was misled by her producer into making an anti-muslim movie. The actress thought she was making an adventure film. The film was then posted on YouTube, and it contained a manipulated account of the life of Prophet Mohammed. The trailer was 14 minutes long, and the actress’s voice was overdubbed with lines supporting anti-Muslim demonstrations.

As a result, Muslims in Egypt protested, and an order of arrest and killing was issued against all the cast in the film. As a result, the actress began to receive death threats, which led her to request the DMCA to order a takedown notice. Despite her letter to YouTube requesting the video to be pulled down, the service did not agree. She was angered by the response and moved to court, claiming copyright infringement of her material. In the court case held in Los Angeles, the judge ruled that the actress was unable to provide evidence of copyright and ownership of the film. Thus, the judge denied her motion and claimed that the actress had delayed in seeking a ban in the film after watching it. She appealed to the Ninth Circuit, which agreed to issue a secret order stating that the video should be blocked from the site.

Google was also ordered to take down similar videos against Muslims and prevent further uploads. However, when she went back to the court, the judges argued that there was no evidence that the order was issued by the Ninth Circuit. After several court sessions, the judges contended that the actress was not an author of the material, and the film was not her original work. Despite this, the court ruled that the video be pulled down as the contents were altered, and Garcia’s voice had been dubbed. Lawrence (2015) notes that the actress has constantly been complaining that the video is available on the site from time to time as the users keep on uploading it. Currently, Google has filed another petition for the case to be reconsidered.

While the copyright infringements in the two cases are different, they both relate to violations relating to the film. The first case deals with secondary liability in which the presidential candidate, as a user, uploaded a clip containing copyrighted materials (Bump, 2015). In reference to YouTube’s (2015) copyright regulations, all contents uploaded by the users have to be free of copyrighted content. Moreover, the site has the authority to remove the content after a formal complaint by the owner. Although the second case was presented as a secondary liability case, the material was not copyrighted. Moreover, the complainant was not the owner of the clip. Lawrence (2015) notes that the case could be argued under the doctrine of fair use. Additionally, Garcia did not present any formal agreement with her producer concerning the use of the video.

Thus the producer was the owner and had the freedom to alter and upload the video. Similar to the first cases, these cases limit the role of film in culture. This is become such violations prevent the enjoyment of film upon takedown. The removal of Paul’s campaign video is likely to have grave impacts on his popularity and the course of his political career. Similarly, Garcia’s portrayal as an anti-Muslim activist in the video had a negative influence on her life. The fact that YouTube users keep on re-uploading the video is an indication that the site has failed to take full control of the copyright infringement issues. Perhaps, more advanced technologies are required to promote their copyright regulations and ensure that the users adhere strictly to them.

Case 5: YouTube versus fair use

The fifth case deals with the upload of remix videos as a form of copyright infringement. Collins (2014) notes that many users tend to apply the doctrine of fair use in defending the upload of remixes. Moreover, it is difficult to prevent the production of remixed videos due to the advancement in technology. Most of these remixes are a modification of the existing copyrighted materials. As aforementioned, the doctrine of fair use allows users to upload materials without seeking permission from the owners. The doctrine has been reported to infringe on the copyright law of the United States.

Particularly, the law indicates that the owners must have exclusive rights to their materials. Thus, fair use is a form of copyright infringement. In the case of Jonathan McIntosh versus YouTube, the user uploaded the video “ Buffy vs. Edward ” (Collins, 2014, pp. 93). The service removed the video claiming copyright infringement as the user had included the audio track from “ Twilight ” Collins, 2014, pp. 93). The track belonged to Lion’s gate. They claim that the video was protected by the fair use clause was rejected by the service, and his account deactivated. Although the case did not move to court, it presents an example of the violations relating to the fair use clause.

Case 6: In the case between Stephanie Lenz and YouTube

Jampol (2013) reports that the user uploaded a video titled “ Let’s Go Crazy #1 ” (9), which focused on her children. Later the Universal Music Group claimed that the user had included several titles of songs belonging to Prince. The Group was responsible for the musician’s copyrights and hence requested the service to remove the video. After removal, Lenz submitted a complaint indicating that the clip was protected by fair use. After taking the case to the courts, the judges sided with Lenz, indicating that the clip was uploaded with “ good faith belief ” (Jampol, 2013, p. 9). The court also noted that the Universal music group had failed to recognize the fair use doctrine when uploading the music. The motion of the group was denied even after proceeding to trial.

In summary, the two cases relate to music infringement and are an indication of the lawsuits that relate to fair use doctrine. While the video in Johnathan’s case was removed, Lenz won the case against the Universal Music Group. In the second case, the judges argued that provided there is evidence that a user uploads a copyrighted video with “ good faith belief ” (Jampol, 2013, p. 9), he or she should be protected under the fair use doctrine. Both cases are an indication of the discrepancies that exist in applying the fair use clause under the DMCA. Ottaviani and Pudelka (2007) recommend the evaluation of the fair use clause to ensure that it is applied equally among the users. Remix videos are likely to promote the production of music and the promotion of culture. However, this is only possible when users respect copyrighted materials and apply the fair use doctrine properly.

As aforementioned, copyright infringement limits the production of music and films. Since the owners depend on the uploaded contents as a source of revenue, copyright infringement is likely to prevent them from producing music in the future ( Ottaviani & Pudelka, 2007). Additionally, entertainment through film and music promotes cultural identity. Different culture takes pride in different kinds of music and films. An example is hip-hop music, which is known to promote African American culture. Thus, copyright infringement has negative impacts on the promotion of American culture. Specifically, it limits communication and prevents the distribution of entertainment materials.

The current research represents the issues surrounding copyright infringement by YouTube. The research utilizes a case study research design to describe various lawsuits relating to YouTube’s copyright infringement. Based on the analysis, it is clear that most of the copyright infringement cases have been caused by the users. Depending on the ruling, the contents are either retained or removed from the platform. In summary, YouTube has faced many lawsuits in the past and has been accused of failing to control the actions of the users. It is clear that the infringement has negative implications of communication and culture.

Breen, J. C. (2002). YouTube or youLose: Can YouTube survive a copyright infringement lawsuit? Texas Intellectual Property Law Journal, 16 (7), 151-182. Web.

Bump, P. (2015). YouTube’s copyright system has taken Rand Paul’s presidential announcement offline . Web.

Collins, S. (2014). YouTube and limitations of fair use in remix videos. Journal of Media Practice, 15 (2), 92–106. Web.

Jampol, N. (2013). Lawsuits for allegedly improper takedown notices face uphill battle. Intellectual Property & Technology Law Journal, 25 (8), 8-10. Web.

Koziol, M. (2014). YouTube faces ‘$1 billion’ copyright lawsuit from Pharrell Williams, Eagles . Web.

Lawrence, A. J. (2015). Google ordered to remove all copies of anti-Islamic film from YouTube after actress with Bit Part threatened by outraged Muslims . Web.

Mashable. (2015). How YouTube fights copyright infringement . Web.

Ottaviani, J. E., & Pudelka , G. G. (2007). YouTube lawsuit raises novel internet copyright issues. The Licensing Journal, 13 (5), 9-14. Web.

Peguera , M. (2011). Secondary Liability for Copyright Infringement in the Web 2.0 Environment: Some Reflections on Viacom v. YouTube. Journal of International Commercial Law and Technology, 6 (1), 1-14. Web.

Simons, H. (2009). Case study research in practice. London: Sage Publications. YouTube. (2015). Copyright on YouTube . Web.

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Bibliography

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Corporate Kaijus Clash: 15 Famous Copyright Infringement Cases

What is Copyright Infringement

Infringement of copyright occurs when an individual unlawfully violates the exclusive rights bestowed upon a copyright proprietor, sans their authorization. These exclusive rights entail the freedom to duplicate, circulate, execute, showcase, and engender derivative works from a unique work of authorship.

Ideas are a nebulous concept, and legally protecting something intangible can result in an interesting chain of events, especially when big names and corporations are thrown into the mix. We'll delve into some historic courtroom battles over alleged copyright violations and look at some of the most high-profile cases ever brought by well-known plaintiffs.

Here are the 15 most famous instances of copyright infringement:

1. Whitmill vs Warner Brothers

Despite Hangover 2's success, its publisher, Warner Brothers, was sued by tattoo artist S. Victor Whitmill for using Whitmill's uncredited tattoo design without permission in the film and its promotional materials.

Despite Warner Brothers' claims that their use of the design was protected by the "fair use" policy, Whitmill pursued the case and sought a preliminary injunction that would have prevented the film from hitting theaters on schedule.

While the judge did rule against Whitmill's injunction request, he did agree that Whitmill still had a solid case and could pursue the lawsuit on other grounds.

An agreement was reached behind closed doors, and the film was released on schedule, thereby creating comedic history.

2.  Katy Perry vs Marcus Gray

Copyright infringement and the music industry go together like peanut butter and jelly, so it stands to reason that this sector accounts for the lion's share of high-profile cases.

Dark Horse, Katy Perry's 2013 smash single, was one of the year's biggest hits. Earning recognition for achievements like selling over 13 million copies worldwide, attracting billions of Youtube views, having the song performed live during the Super Bowl, and winning MTV's music awards for best female video music in 2014.

In spite of this, Marcus Gray, a rapper, sued Perry the same year, claiming that she had stolen the riff and beat from his song "Joyful Noise''. Legal representation for Katy Perry argued that Gray's statement is preposterous and that he is trying to hold "the basic blocks of music," which could harm all composers.

Damages for Gray's case were estimated at $2.78 million and were awarded to him by the court in 2019. The judge would overturn the initial decision, however, in 2020 after an appeal was submitted, claiming that there was simply insufficient evidence to support the case.

3. The Music Industry vs Napster

A young technical genius named Shawn Fanning developed a piece of software called Napster in 1999 when the internet was still in its infancy. It is a peer-to-peer file-sharing application that allows users to freely share and download music.

Suffice it to say, Napster caught the attention of the music Industry. Metallica's drummer Lars Ulrich filed a lawsuit against the developer of the software in 2000, alleging copyright infringement, unauthorized use of a digital audio interface device, and racketeering.

This is believed to be the first case in which a well-known artist has directly sued a peer-to-peer file-sharing software company. This caused a domino effect in which major record labels like A&M and others began suing Napster. The plaintiffs accused the software company of vicarious copyright infringement and were eventually found guilty in 2002.

To the public's chagrin, Napster was forced to close that year, apologized publicly, and paid up to $26 million in damages.

This incident served as the catalyst for some people's animosity toward Metallica.

Legal protection of something intangible such as an Idea can result in an interesting chain of events.

4. Vanilla Ice vs David Bowie & Queen

As the first hip-hop single to reach number one on the Billboard Hot 100, Vanilla Ice's "Ice Ice Baby" left an indelible mark on popular culture. However, one of its worst qualities is that it sampled the bass lines from Under Pressure, a hit song by Queen and David Bowie.

Vanilla Ice tried to defend himself from the lawsuit brought against him by Queen and David Bowie for the unauthorized use of their song by claiming that he had added a single note to the end of the riff to make it more unique, but this was deemed insufficient.

The case was eventually settled out of court for an undisclosed amount of money, with both Queen and Bowie receiving songwriting credit.

5. Apple vs Microsoft

There was once a time when the two tech giants squared off in court.

Apple filed a lawsuit against Microsoft in 1988, shortly after the release of Windows 2.0 , a significant upgrade to the original version. At the time, Apple accused Microsoft of plagiarizing the graphical user interface found on the Macintosh system without permission or a license.

This is where the case becomes interesting, as Apple did in fact grant Microsoft permission to use Macintosh's design elements in Windows. The mystery surrounding this part is that, for some reason, Apple's legal department did not receive the memo, after the release of Windows 2.0,

Apple was so taken aback by the suddenness of the legal proceedings that it skipped sending any sort of preemptive warning or threat.

As a result of this misunderstanding, the court ruled in favor of Microsoft in 1989, and although Apple attempted to appeal the decision multiple times, all of its efforts were unsuccessful.

6. Gucci vs Guess

In 2009, two of the fashion industry's most recognizable names squared off when Gucci sued Guess, alleging that the latter had violated several of Gucci's trademarks. Gucci had originally asked for $221 million in damages but settled for $4.1 million.

So why did that happen? The judge reasoned that Gucci's claim that it has repeatedly sent cease-and-desist letters to various parties over the years was a fatal flaw in the company's case.

These entities ranged from national corporations to small-time counterfeiters and infringers. With budgetary concerns and the fact that most of their evidence was speculative, Gucci's defense department has been stretched thin.

7. Starbucks vs Obsidian Group

Starbucks sued rival coffee chain Obsidian Group in 2016 for promoting its newest drink, the Freddoccino. Starbucks claimed that the name's similarity violates the copyright of their own popular iced coffee, the Frappuccino.

Despite Obsidian's efforts to assuage concerns by renaming their drink "the Freddo," Starbucks remained steadfast in their pursuit of the case, and the case has yet to be resolved as of mid-late 2022.

8. Art Buchwald vs Paramount Studios

In 1990, writer and comedian Art Buchwald sued Paramount, claiming that the studio stole his ideas from an abandoned project and turned them into the film's screenplay.

According to Paramount's defense, at the time, they paid their authors through the "Hollywood account," which means the screenwriters are paid based on how much profit the film made.

They stood firm in their claim that, despite gross revenue of $288 million dollars, the film produced no net profit, and thus they were not required to pay Buchwald. If this statement struck you as perplexing, the judge felt the same way.

He called Paramount's payment method "blatantly unethical and unconscionable" and ruled in Buchwald's favor, awarding him 900,000 dollars in damages.

9.  Star Wars vs Battlestar Galactica

For science fiction fans, 1977 was an interesting year. Twentieth Century Fox sued Universal Studios for infringement the same year that A New Hope was released and defined a generation.

Fox asserted that Battlestar Galactica, a science fiction series produced by Universal, was "too similar" to one of their flagship intellectual properties.

Universal Studio did not take this lightly and filed a lawsuit of its own, claiming that Star Wars stole ideas from older media, such as the 1972 film Silent Running.

Two years later, the case was resolved in favor of Battlestar Galactica. The franchise as a whole was not doing so well at the time, despite the positive publicity surrounding the movie. The original show had been canceled, and fans were flocking to see The Empire Strikes Back.

10. Apple vs Google

In 2010, as smartphones became increasingly important in our daily lives, Apple and Samsung went to court over Samsung's alleged violations of Apple's patents on several of its smartphone designs. Apple's main competitor was not Samsung per se, but rather the Android operating system developed by Google and used by Samsung and other manufacturers.

Partially because of a "Mobile Application Distribution Agreement," Google's legal team had to intervene to help Samsung.

Concurrently, Motorola filed one of the most publicized lawsuits in technology history, accusing Apple of intellectual property infringement. Motorola claimed that Apple violated their patents on 3G phone technology and other aspects of smartphone design, while Apple fired back by claiming that Motorola had infringed on their patents on a number of features.

The court was so frustrated by the fight that the judges threw out the case three times in 2012, on the grounds that neither party had enough implicated evidence and were told to settle out of court. 2012 was the year that Google bought Motorola.

Although Apple has never directly attacked Google, they appear to focus on third-party companies that sell Google's software products; nonetheless, Google appears to be adamant in defending its popular mobile software.

11. Bratz vs Barbie

Carter Bryant, the creator of Bratz, was previously employed by Mattel, the manufacturer of Barbie. During his time working at Barbie, he came up with the idea for Bratz, which he later sold to one of Mattel's biggest competitors, MGA Entertainment.

The new doll franchise debuted in 2001 and quickly became the plastic bombshell's biggest competitor.

Mattel sued both Bryant and MGA in 2008, claiming that Bryant's idea was stolen intellectual property. MGA countersued, resulting in the two doll manufacturers locking horns.

MGA accused Mattel of corporate espionage by having its employees trained in spying on its competitors and resorting to clandestine underhanded tactics, such as having its employees print fake business cards and use them to enter the private showrooms of its competitor.

The lawsuit concluded in 2013 with a verdict in favor of MGA and an award of $170 million in damages, but Mattel would file an appeal to overturn the verdict, causing both parties to walk away empty-handed.

12. Naruto vs Slater

Photographer David Slater left his camera unattended while photographing wildlife in a foreign reserve, leading to a court case involving copyright infringements involving both humans and animals.

A crested macaque named Naruto discovered the camera and started taking the now-famous "Monkey Selfies" that have been making the rounds online. Slater, after discovering the images in his camera, published the image and its context on the website Blurb.

People for the Ethical Treatment of Animals (PETA) took notice of the photo after it went viral and sued Slater, Wildlife Personalities Ltd., and Blurb for copyright infringement, arguing that the selfies violated Naruto's authorship rights. In response, Slater filed a motion to dismiss, and the judge quickly sided with Slater, finding that Naruto lacked standing under the Copyright Act.

13. Lana Del Ray vs Radiohead

Lana Del Rey once claimed that Radiohead sued her for allegedly plagiarizing the hit song "Creep" in her 2017 single Get Free. Warner/Chappell, Radiohead's publisher, denied suing Del Ray or taking legal action against her, but admitted requesting that she attribute Creep to "all writers."

In 2018, during a Lollapalooza performance in Brazil, Del Ray appeared to confirm that the alleged lawsuit is over by telling her audience, "Now that my lawsuit is over, I guess I can sing that song whenever I want, right?"

14. John Fogerty vs John Fogerty

In one of the strangest copyright cases ever litigated, a record label once sued an artist for sounding like himself in a song he had written and performed decades earlier. John Fogerty is a musician and songwriter who was a member of the band Creedence Clearwater Revival (CCR). He eventually left the group to pursue a solo career, and his efforts paid off during the 1980s.

However, that all changed when he released a song titled "The Old Man Down the Road," which was later sued by CCR's record label, Fantasy Records, for allegedly plagiarizing CCR's "Run Through the Jungle." That's right; John Fogerty was sued over a tune he composed himself.

The judge sided with Fogerty in the end, saying, "you can't plagiarize yourself," effectively ending any further discussion as to whether or not he plagiarized himself.

After Fogarty's victory, he filed a countersuit against Fantasy Labels to recover the money he had spent on the case. The case went all the way to the Supreme Court of the United States, where it was ultimately decided in favor of the plaintiff. The judge ruled that the circumstances of the case ran counter to the original intent of the copyright law, which was to safeguard creative endeavors and promote new ideas.

15. Youtube vs Viacom

Viacom sued YouTube for $1 billion in 2007 for "Brazen" copyright infringement for allegedly hosting over 150,000 clips of Viacom's television shows and owned properties on their website.

YouTube argued that it is not legally responsible for content that infringes on third-party copyrights because it is merely an online service provider. This side issue could become the case's deciding factor.

The judge issued an order requiring YouTube to turn over its internal communications logs and transcripts to Viacom for review. If not for one small detail, this evidence would be considered indisputable and Viacom would have won without a doubt. As part of a guerilla marketing campaign, Viacom hired 18 advertising firms to create "unofficial accounts" and upload them as random users before the trial began, an action that can be described as nothing less than a blunder.

Worse yet, Viacom had no idea which accounts belong to them, so they ended up suing the third party to remove content that they had uploaded themselves.

This gave YouTube new life, and they argued that it was unreasonable to remove any account without knowing whether or not it belonged to Viacom.

Since YouTube had no way of telling which accounts were infringing on copyrights, it had no way of stopping them. Viacom's case collapsed due to this minor oversight, and the judge ultimately sided with YouTube, potentially sparing the media conglomerate.

To take full advantage of your brand and to maintain its goodwill, businesses should keep an eye out for counterfeiters and monitor if someone else is engaged in copyright infringement and reaping the benefits from their brand, If you own a business and come across a situation where a 3rd party is infringing on your brand image for their own products, get in touch with us at [email protected] for a complimentary consultation on how we can protect you from such thefts.

Also read our article on Copyright Guide for Freelance Writers to learn how you can avoid infringing copyrighted material.

Click on the link for more information on UAE Copyright Law .

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Law Enforcement Deaths by Suicide

Introduction.

Police and correctional officers (hereafter referred to as public safety personnel) routinely confront arduous and psychologically taxing circumstances that can adversely affect their mental and emotional health. In a thorough survey encompassing 2,232 law enforcement officers, Mumford and colleagues (2021) noted that although two-thirds displayed healthy behaviors, approximately one-fourth encountered moderate health challenges, and a minority (6 percent) grappled with more severe health issues. Similarly, a separate study conducted by Drew and Martin (2023) involving 3,994 officers found that 44 percent experienced psychological distress, such as depression and anxiety within the previous four weeks, and nearly a quarter of them experienced moderate to severe distress.

Extensive research highlights the profound repercussions of poor wellness characteristics among public safety personnel, including cognitive dissonance toward society, feelings of isolation, and diminished self-worth, which potentially increase the risk of suicide attempts or deaths by suicide (Civilotti et al., 2022; Newiss et al., 2022; Stogner et al., 2020; Violanti & Steege, 2021). Thoen et al. (2020) reported that 12.4 percent of surveyed police officers expressed a likelihood of future suicide attempts, with 13.2 percent acknowledging suicidal thoughts in the past year. Moreover, compared to the general population, law enforcement officers face a 54 percent higher risk of dying by suicide (Violanti & Steege, 2021), underscoring the critical need for comprehensive wellness programs and support structures within the field.

Despite extensive research into the correlates of public safety personnel deaths by suicide, all police and public safety professions are challenged by the absence of a systematic, national, and comprehensive data collection effort to fully grasp the extent of the problem (Dixon, 2021; Malik et al., 2023; NASEM, 2023). Recognizing the critical need for accurate data in this area, Congress enacted the Law Enforcement Suicide Data Collection (LESDC) Act on June 16, 2020. Part of the LESDC Act mandates the Federal Bureau of Investigation (FBI) to establish a national data collection effort to seek incidental information on suicides, including gestures, ideation, and attempted suicides within the law enforcement community. However, initial federal efforts have been slow and have encountered numerous challenges.

The nonprofit organization First H.E.L.P. (Honor, Educate, Lead, Prevent) has been collecting data systematically since 2016 on deaths by suicide among public safety personnel. In late 2023, the CNA Corporation (hereafter “CNA”) initiated a partnership with First H.E.L.P. to undertake the first comprehensive analysis of its extensive dataset on public safety personnel deaths by suicide. This brief presents an overview of previous research and data collection endeavors related to public safety personnel deaths by suicide. It outlines the methodology employed by First H.E.L.P. for its data collection and offers descriptive insights into public safety personnel deaths by suicide. The results are organized according to the year of occurrence, agency information, geographical distribution, demographic attributes, position details, help-seeking behaviors, life challenges the person encountered before their death, and details about the death event.

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• Document Number: RM-2024-U-037860-Final
• Publication Date: 3/20/2024

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• New entity of adult ultra-short coeliac disease: the first international cohort and case–control study
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• http://orcid.org/0000-0001-5528-917X Suneil A Raju 1 , 2 ,
• http://orcid.org/0000-0002-0707-4059 Emily A Greenaway 1 , 2 ,
• http://orcid.org/0000-0002-8493-7698 Annalisa Schiepatti 3 , 4 ,
• Giovanni Arpa 5 , 6 ,
• Nicoletta Vecchione 7 ,
• Chao LA Jian 8 ,
• Charlotte Grobler 9 ,
• Margherita Maregatti 10 ,
• Olivia Green 1 , 2 ,
• Freya J Bowker-Howell 1 , 2 ,
• http://orcid.org/0000-0002-2713-8355 Mohamed G Shiha 1 , 2 ,
• Hugo A Penny 1 , 2 ,
• Simon S Cross 2 ,
• http://orcid.org/0000-0002-7426-1145 Carolina Ciacci 7 ,
• http://orcid.org/0000-0002-2114-2353 Kamran Rostami 11 ,
• Shokoufeh Ahmadipour 12 ,
• Afshin Moradi 13 ,
• Mohammad Rostami-Nejad 14 ,
• Federico Biagi 3 , 4 ,
• Umberto Volta 15 ,
• Michelangelo Fiorentino 15 ,
• Benjamin Lebwohl 16 ,
• Peter HR Green 16 ,
• Suzanne Lewis 16 ,
• Javier Molina-Infante 17 , 18 ,
• Pilar Mata-Romero 18 ,
• http://orcid.org/0000-0003-4416-6216 Valentina Vaira 19 , 20 ,
• http://orcid.org/0000-0002-0873-0759 Luca Elli 10 ,
• Irfan Soykan 21 ,
• Arzu Ensari 22 ,
• David S Sanders 1 , 2
• 1 Academic Unit of Gastroenterology , Sheffield Teaching Hospitals NHS Foundation Trust , Sheffield , UK
• 2 Division of Clinical Medicine, Faculty of Medicine and Population Health , The University of Sheffield Medical School , Sheffield , UK
• 3 Gastroenterology Unit of Pavia Institute , Istituti Clinici Scientifici Maugeri IRCCS , Pavia , Italy
• 4 Department of Internal Medicine and Medical Therapy , University of Pavia , Pavia , Italy
• 5 Department of Molecular Medicine, Fondazione IRCCS Policlinico San Matteo , University of Pavia , Pavia , Italy
• 6 Anatomical Pathology Unit of Pavia Institute , Istituti Clinici Scientifici Maugeri IRCCS , Pavia , Italy
• 7 Department of Medicine, Surgery, Dentistry , University of Salerno , Fisciano , Italy
• 8 Gastroenterology and Hepatology , MidCentral District Health Board , Palmerston North , New Zealand
• 9 Medlab Central Limited , Palmerston North , New Zealand
• 10 Center for Prevention and Diagnosis of Celiac Disease , Fondazione IRCCS Ca' Granda Ospedale Maggiore Policlinico , Milan , Italy
• 11 Department of Gastroenterology , MidCentral District Health Board , Palmerston North , New Zealand
• 12 Hepatitis ResearcH Center , Lorestan University of Medical Sciences , Khoram-Abad , Iran (the Islamic Republic of)
• 13 School of Medicine, Department of Pathology , Shahid Beheshti University of Medical Sciences , Tehran , Iran (the Islamic Republic of)
• 14 Celiac Disease and Gluten Related Disorders Research Center , Shahid Beheshti University of Medical Sciences , Tehran , Iran (the Islamic Republic of)
• 15 Department of Medical and Surgical Sciences , University of Bologna , Bologna , Italy
• 16 Celiac Disease Center , Columbia University Medical Center , New York , New York , USA
• 17 Department of Gastroenterology , Centro de Investigación Biomédica en Red , Madrid , Spain
• 18 Department of Gastroenterology , Hospital Universitario de Caceres , Caceres , Spain
• 19 Department of Pathophysiology and Transplantation , University of Milan , Milano , Italy
• 20 Division of Pathology , Fondazione IRCCS Ca’ Granda-Ospedale Maggiore Policlinico , Milano , Italy
• 21 Department of Gastroenterology , Ankara University Faculty of Medicine , Ankara , Turkey
• 22 Department of Pathology , Ankara University Faculty of Medicine , Ankara , Turkey
• Correspondence to Dr Suneil A Raju, Academic Unit of Gastroenterology, Sheffield Teaching Hospitals NHS Foundation Trust, Sheffield S10 2JF, UK; suneilraju{at}gmail.com

Background Ultra-short coeliac disease (USCD) is defined as villous atrophy only present in the duodenal bulb (D1) with concurrent positive coeliac serology. We present the first, multicentre, international study of patients with USCD.

Methods Patients with USCD were identified from 10 tertiary hospitals (6 from Europe, 2 from Asia, 1 from North America and 1 from Australasia) and compared with age-matched and sex-matched patients with conventional coeliac disease.

Findings Patients with USCD (n=137, median age 27 years, IQR 21–43 years; 73% female) were younger than those with conventional coeliac disease (27 vs 38 years, respectively, p<0.001). Immunoglobulin A-tissue transglutaminase (IgA-tTG) titres at index gastroscopy were lower in patients with USCD versus conventional coeliac disease (1.8×upper limit of normal (ULN) (IQR 1.1–5.9) vs 12.6×ULN (IQR 3.3–18.3), p<0.001).

Patients with USCD had the same number of symptoms overall (median 3 (IQR 2–4) vs 3 (IQR 1–4), p=0.875). Patients with USCD experienced less iron deficiency (41.8% vs 22.4%, p=0.006).

Both USCD and conventional coeliac disease had the same intraepithelial lymphocytes immunophenotype staining pattern; positive for CD3 and CD8, but not CD4.

At follow-up having commenced a gluten-free diet (GFD) (median of 1181 days IQR: 440–2160 days) both USCD and the age-matched and sex-matched controls experienced a similar reduction in IgA-tTG titres (0.5 ULN (IQR 0.2–1.4) vs 0.7 ULN (IQR 0.2–2.6), p=0.312). 95.7% of patients with USCD reported a clinical improvement in their symptoms.

Interpretation Patients with USCD are younger, have a similar symptomatic burden and benefit from a GFD. This study endorses the recommendation of D1 sampling as part of the endoscopic coeliac disease diagnostic workup.

• coeliac disease
• gluten free diet
• gluten sensitive enteropathy
• celiac disease

Data availability statement

Data are available on reasonable request.

https://doi.org/10.1136/gutjnl-2023-330913

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WHAT IS ALREADY KNOWN ON THIS TOPIC

The first study of ultra-short coeliac disease in adults in 2016 identified patients with villous atrophy confined to the duodenal bulb with positive coeliac serology.

Systematic review and meta-analyses suggest that taking a duodenal bulb biopsy can increase the diagnostic yield of adult coeliac disease by 8%.

There are limited further studies and no data on how these patients respond to treatment.

WHAT THIS STUDY ADDS

Our study provides the first international data of patients with ultra-short coeliac disease.

At presentation, adult patients with ultra-short coeliac disease are significantly younger, have a similar symptomatic burden but lower serological titres.

Adult patients with ultra-short coeliac disease improve both clinically and serologically when on a gluten-free diet.

HOW THIS STUDY MIGHT AFFECT RESEARCH, PRACTICE OR POLICY

Our data support adherence to undertaking a bulb biopsy.

Once identified these patients can be treated effectively with a gluten-free diet.

Introduction

Coeliac disease is a common autoimmune disorder that affects individuals worldwide, with a global prevalence between 0.7% and 1.4%. 1 Despite being an increasingly significant global health problem, a significant proportion of individuals with coeliac disease remain undiagnosed (5%–76%). 2 3 There is a global delay in diagnosing coeliac disease which is reported to be between 9.7 and 13.3 years. 4–6 Furthermore, 5%–12.4% of patients have had a previous gastroscopy (where no biopsies were taken) prior to their diagnosis representing a missed opportunity to diagnose coeliac disease. 7 8 A gluten-free diet (GFD) remains the only treatment, and adherence improves quality of life for the individual and potentially reduces the burden to the healthcare system. 9 10

The conventional form of coeliac disease is characterised by villous atrophy (VA) and crypt hyperplasia in the second part of the duodenal mucosa (D2) with concurrent positive coeliac serology ( figure 1 ). 11 Historical early reports of the value of acquiring biopsies from the duodenal bulb (D1) were disregarded in favour of biopsies from the distal duodenum as it was suggested that histological interpretation was potentially impaired by the presence of Brunner’s glands, gastric heterotropia and duodenitis. 12 Ultra-short coeliac disease (USCD) is defined as patients with VA only present in the duodenal bulb (D1) and concurrent positive coeliac serology ( figure 1 ). This term was coined in 2016 and systematic review and meta-analyses suggest that taking a duodenal bulb biopsy can increase the diagnostic yield of adult coeliac disease by 8%. For paediatric populations, this was shown to be 4% (95% CI 1% to 9%; p<0.001). 12

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Subtypes of coeliac disease divided by extent of villous atrophy.

Subsequently, the American College of Gastroenterology and British Society of Gastroenterology (BSG) now recommend bulb biopsy as standard practice when an upper endoscopy is undertaken to assess for ‘suspected coeliac disease/malabsorption’. However, adherence to biopsy protocols is low (37.0%–39.5%). 11 13–15 One reason for this may be a perceived increase in cost or alternatively a perception that a patient with histological changes confined to the bulb may not benefit from a GFD. 7 The value of taking D1 biopsies remains controversial and there is only a single centre study of 26 adult patients from the UK describing the clinical presentation of VA confined to D1. 11 14–17

Understanding the phenotype and therapeutic outcomes of patients with USCD is crucial for optimising diagnostic approaches and treatment strategies, as well as improving overall patient care and long-term health outcomes. There is a paucity of data regarding the phenotype of patients with USCD by comparison to conventional coeliac disease. Furthermore, there are limited data on the benefit of a GFD in patients with USCD. To address this, we present the first, multicentre, international study of patients with USCD.

The study was proposed after the 19th International Society for the Study of Celiac Disease Conference, Sorrento, October 2022, as an international, multicentre, observational cohort study enrolling all patients with USCD between 2009 and 2022. Patient data were collected from hospital databases that prospectively record information about patients with coeliac disease. One centre collected information retrospectively from hospital records based on positive histological findings. Ten tertiary coeliac disease centres participated in the study: Sheffield, UK; Caceres, Spain; New York City, USA; Palmerston North, New Zealand; Ankara, Turkey; Bologna, Pavia, Milan and Salerno, Italy; Tehran, Iran.

Group 1: For this cohort study, adult (≥16 years) patients were identified from 10 tertiary hospitals between January 2009 and December 2022. Patients were defined as having USCD if they had a combination of positive serological markers (immunoglobulin A-tissue transglutaminase (IgA-tTG) or immunoglobulin A-endomysial antibody (IgA-EMA)) and histologically confirmed VA confined to D1 while on a gluten containing diet. D2 biopsies were architecturally non-diagnostic of coeliac disease (Marsh grades 0–2) and diagnoses were made locally by gastroenterologists with expertise in coeliac disease.

Group 2: For the age-matched and sex-matched case-control study, controls were identified from databases of adult patients with coeliac disease diagnosed in each centre. Each age-matched and sex-matched control was from the same centre as the patient with USCD. Age-matched and sex-matched adult coeliac disease controls were then randomly selected using IBM SPSS V.27.0 (IBM) case control matching function.

Both USCD and age-matched and sex-matched controls had D1 and D2 biopsies.

Data were collected following assessment by a clinician with a special interest in coeliac disease at each centre. Data were reviewed in case notes, endoscopy records and the referral. Data were collected on presenting symptoms, serology at time of presentation (including haemoglobin, vitamin B 12 , folate, iron, vitamin D, IgA-tTG and IgA-EMA), human leucocyte antigen (HLA) typing and histology of duodenal biopsies. Patients with USCD and the case–control patients were then followed up to determine the effects of a GFD on their serological markers and symptoms. All patients were assessed for commonly occurring symptoms in coeliac disease both at presentation and follow-up.

In order to assess for any potential differences between USCD and conventional coeliac disease when specifically considering age and sex at presentation, a further analysis was undertaken comparing all patients with USCD (n=137) to those with conventional coeliac disease from the Sheffield, UK coeliac database (n=434).

IgA-tTG antibody levels were measured by different ELISA kits (Aeskulisa Diagnostics (Wendelsheim, Germany), ELiA Celikey (Thermo Fisher, Freiburg, Germany), ARUP Laboratories (Utah, USA), QuantaLite (Inova Diagnostics, San Diego, California), Eu-tTG (Eurospital, Italy) and Euroimmune (Luebeck, Germany)). Therefore, levels were standardised using the upper limit of normal (ULN) based on the manufacturer’s supplied reference ranges. IgA-EMA was detected by immunofluorescence on primate oesophagus sections (Binding Site, Birmingham, UK). The normal ranges of blood tests differed by centre, and therefore, to allow for direct comparison, the lower limit of normal (LLN) was used for ferritin, vitamin B 12 , folic acid and vitamin D based on the manufacturer’s supplied reference ranges of each test. All blood tests were complete prior to endoscopy as part of the referral process.

HLA typing was performed for HLA-DQ2 and DQ8 at six centres and full genomic HLA typing at three. One centre did not perform HLA typing ( table 1 ).

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Number of cases of ultra-short coeliac disease from each centre

Biopsies and histology

Multiple biopsies were taken in D1 and quadrantic biopsies in D2 and the most severe histological findings used for diagnosis and analysis. The biopsy specimens were first preserved in formalin and then embedded in paraffin wax. Afterwards, they were thinly sliced into sections measuring 3 µm in thickness. These sections were subsequently stained using H&E. Duodenal biopsies were assessed by experienced histopathologists with an interest in gastroenterology. The biopsies were all orientated by experienced biomedical scientists in the histopathology laboratory and three levels were cut from each specimen. This ensured that in at least some of the levels there were full length villi present and the interpreting histopathologists looked for the longest villi that were present in all three levels. Grading was completed using the modified Marsh criteria: Marsh 1 lesions demonstrated increased intraepithelial lymphocytes (IEL), Marsh 2 lesions demonstrated crypt hyperplasia and Marsh 3 lesions demonstrated VA. 18

CD3 antibody was measured using streptavidin biotin peroxidase method by automated Ventana Benchmark XT system (Roche, Ventana Medical Systems, Tucson), Clone:LN10: Leica Concentrate and immunohistochemistry anti-human Cd3 Dako or GenScript. CD8 antibody was measured with clone: C8/44B; Dako RTU Link and CD4 with clone:4B12; Dako RTU Link. An average of two biopsies was tested for both D1 and D2.

Follow-up data were collected in each centre based on clinical improvement (Likert scale) divided into four categories: ‘symptoms worse’, ‘symptoms the same’, ‘symptoms improved’ and ‘symptoms completely resolved’ after clinical assessment as part of routine care. Serological follow-up was completed using the blood tests as described above. The length of follow-up varied based on the time the patient was known to the centre.

Statistical analysis

Data handling was completed using Microsoft Excel (2016); statistical analysis was conducted in IBM SPSS V.27.0 (IBM).

The prevalence of each presenting symptom was compared between cohorts using χ 2 test of two proportions where there was adequate sample size and if not, Fisher’s exact test was used. 19 Shapiro-Wilk test was used to assess for Gaussian distribution of continuous data such as age and IgA-tTG titre. Where normally distributed and no outliers, a t-test was used, otherwise the Mann-Whitney U test used. A p<0.05 was considered statistically significant.

Role of the funding source

No funding was acquired to complete this study.

When comparing age and sex between individuals diagnosed with conventional coeliac disease (n=434), and USCD, it was observed that those with USCD presented at a younger age (27 years (IQR 21–43 years) vs 38 years (IQR 26–53 years), p<0.001) but no difference in sex ratio (66.6% vs 73.7% females, respectively, p=0.12).

For other comparisons, group 1 patients with USCD (n=137) were compared with group two patients with conventional coeliac disease (n=137) ( table 1 ). Group 1 patients were referred from primary care, were self-referring, referred from other departments within the same hospital (with symptoms or positive coeliac disease serology) or referred from other hospitals (68%, 19%, 10%, 3%, respectively).

Patients with USCD (group 1) when compared with age-matched and sex-matched conventional coeliac disease (group 2) had the same number of symptoms overall (median 3 (IQR 2–4) vs 3 (IQR 1–4), p=0.875).

The most common presenting symptoms for patients with USCD were abdominal pain, diarrhoea and bloating ( table 2 ). When compared with age-matched and sex-matched patients with conventional coeliac disease, patients with USCD had more flatulence (13.1% vs 5.1%, p=0.021). Patients with conventional coeliac disease also demonstrated more iron deficiency (41.8% vs 22.4%, p=0.006). Patients with USCD had higher index ferritin levels than age-matched and sex-matched patients with conventional coeliac disease (2.5×LLN (IQR 1.0 x-5.8xLLN) vs 1.2xLLN (IQR 0.6×−2.7xLLN), p<0.001) though there was no difference in iron deficiency anaemia (p=0.181).

Presentation of patients with ultra-short coeliac disease (USCD) and age-matched and sex-matched patients with conventional coeliac disease

In total, 65.3% of patients had HLA typing complete. More patients with USCD were HLA-DQ2 homozygous than patients with conventional coeliac disease (40.4% vs 25.8%, p=0.038) ( table 2 ). Patients with USCD also had lower IgA-tTG titres compared with patients with conventional coeliac disease (1.8×ULN (IQR 1.1–5.9) vs 12.6×ULN (IQR 3.3–18.3), p<0.001). Similarly, a lower proportion of patients with USCD tested positive for IgA-EMA (76.5% vs 89.2%, p=0.043) ( figure 2 ).

Comparison of serological markers in coeliac disease at baseline and follow-up. Serological comparisons made between patients with ultra-short coeliac disease and age-matched and sex-matched controls at baseline and follow-up for: (A) immunoglobulin A—tissue transglutaminase titre, (B) ferritin, (C) folate, (D) vitamin B 12 , (E) vitamin D, (F) immunoglobulin A—endomysial antibody. LLN, lower limit of normal; ULN, upper limit of normal.

Biopsy findings

Patients with USCD had a similar number of biopsies taken compared with patients with conventional coeliac disease from D2 (4 (IQR 4–4) vs 4 (IQR 4–4), p=0.870) and D1 (2 (IQR 1–2) vs 2 (IQR 1–2), p=0.164). In total, 16.8% of patients with USCD had a previous gastroscopy of which only 45.5% had a previous D1 biopsy taken. In patients diagnosed with USCD, biopsies from D2 were histologically normal in 41.6% of cases, Marsh grade 1 in 41.6% of cases and Marsh grade 2 in 16.8% of cases. In the age-matched and sex-matched controls, 94.6% had VA in D1.

The immunophenotype of the intraepithelial lymphocytes was the same in both D1 and D2 with all the intraepithelial lymphocytes staining with CD3 and CD8, but not with CD4 ( figure 3 ).

Biopsies of D2 and D1 from a patient with ultra-short coeliac disease. In the H&E-stained sections of D2 (A) there is a normal villous height, no significant crypt hyperplasia but there is an increased number of intraepithelial lymphocytes. In the H&E-stained sections of D1 (E) there is complete villous atrophy, gross crypt hyperplasia and an increased number of intraepithelial lymphocytes. The immunophenotype of the intraepithelial lymphocytes is the same in both sites with all the intraepithelial lymphocytes staining with CD3 (B, F) and CD8 (D, H) but none of them stain with CD4 (C, G).

Serological and clinical assessment occurred after a median of 1181 days (IQR 440–2160 days). Following recommendation of a GFD patients with both USCD and the age-matched and sex-matched controls experienced a similar reduction in IgA-tTG titres (0.5 ULN (IQR 0.2–1.4) vs 0.7 ULN (IQR 0.2–2.6), p=0.312) and similar levels of IgA-EMA positivity (26.9% vs 23.1%, p=0.598) ( figure 2 ). Levels of vitamin B 12 , iron, folate and vitamin D all improved after undertaking a GFD ( figure 2 ). Symptomatic improvement occurred in both patients with USCD and in the age-matched and sex-matched controls (95.7% vs 89.1%, p=0.115). In total, 16.1% of patients with USCD had complete resolution of their symptoms, 79.6% reported a partial improvement, 3.2% reported no change in their symptoms and 1.1% reported symptoms to be worse after following a GFD.

This is the first multicentre international study of USCD. We have demonstrated that patients with USCD are younger than those with conventional coeliac disease and have lower IgA-tTG titres. Despite only having VA in the duodenal bulb patients with USCD are both symptomatic and derive benefit from a GFD. This study endorses the recommendation of taking samples from D1 as a mandatory component of coeliac disease diagnostic workup.

A single-centre study (n=26) from our centre previously identified patients with USCD as younger and having lower IgA-tTG titres. Furthermore, this work demonstrated that an additional D1 biopsy can increase the diagnostic yield by 9.7%. 16 Despite endorsement from the American College of Gastroenterology and BSG, the adherence to biopsy protocols in general remains low (37.0%–39.5%). 11 13–15 As a result, there remains a global delay in diagnosing coeliac disease between 9.7 and 13.3 years. 4–6 Of the patients with USCD, 41.6% and 16.8% had Marsh 1 and Marsh 2 lesions in D2, respectively, therefore, if only D2 biopsies were taken, these patients may have been incorrectly diagnosed as having potential coeliac disease. 11 The implications for both the patient and the clinical recommendation to follow a GFD are different in ‘real-world’ practice when faced with a patient with potential coeliac disease by comparison to VA (Marsh 3) confirmed coeliac disease. The BSG guidelines have made no recommendation for the role of a GFD in patients with ‘potential coeliac disease’.

Conversely in a prospective randomised controlled study of 23 patients with potential coeliac disease (Marsh grades 1–2, raised IEL only or raised IEL and crypt hyperplasia but no VA) individuals who were randomised to commence a GFD showed both symptomatic benefit and a reduction in their tTG titres. 20 In this historical study from 2003 to 2008, none of the patients had a duodenal bulb biopsy. It could be suggested that these patients may have had USCD.

It is perceived that a bulb biopsy strategy may increase healthcare utilisation costs. This may be due to the use of a second histopathology pot (for the bulb biopsy), processing costs and increased pathology reporting time. This may explain some of the reluctance to take biopsies, however, adequate duodenal biopsy strategies potentially avoid diagnostic delays for patients with undiagnosed adult coeliac disease and are a cost-effective approach in improving the quality-adjusted life-years of patients with coeliac disease. 21 22

It may be possible to place D1 and D2 biopsy samples in the same histopathology pot. A historical paediatric study (n=198) found that ‘intraepithelial lymphocytosis was easily recognised in bulb biopsies, and that although the normal villous-to-crypt ratio is lower in the bulb than in the more distal duodenum, significant VA was usually apparent’. When samples were reviewed by experienced histopathologists, the changes of coeliac disease were still identifiable and the risk of interobserver variability was low. 23

We found that patients with conventional coeliac disease were more likely to have iron deficiency than those with USCD, which may correlate with more extensive mucosal inflammation and impaired absorptive capacity of the duodenum in the former. Interestingly, there was no difference in iron deficiency anaemia.

When considering the paediatric population, in a study of 834 paediatric patients diagnosed with coeliac disease, 11% were diagnosed with USCD, these USCD paediatric patients were also found to have lower tissue transglutaminase antibody titres and less iron deficiency than patients with conventional coeliac disease. 24 This suggests that the paediatric and adult USCD cases are similar. This is corroborated by capsule endoscopy studies that demonstrate an association between iron deficiency anaemia, increased age and extent of disease in conventional coeliac disease. 25

Our study demonstrates that HLA DQ2 homozygosity is more common in conventional CD by comparison to USCD (40.4% vs 25.8% p=0.038). This could suggest that the HLA genotype may have a quantitative relationship between the DQ heterodimer and phenotype. Supporting this, a study of seven patients with USCD that found the HLA-DQ2 haplotype to be less common in patients with USCD and no difference in HLA-DQ8 haplotype. 26 However, all these findings are based on small sample sizes and further investigation is required to determine the significance of a possible different HLA haplotype in USCD.

A limitation of this study is that histology samples could be affected by interindividual variability between histopathologists, however, as all histopathologists have a specialist interest in coeliac disease the risk of this is reduced. It is uncertain how this would translate to ‘real-world’ clinical practice beyond centres with an interest in coeliac disease.

Another limitation is the lack of a central reference lab so there was no standardisation between IgA-tTG assays; to address this, the results were evaluated in relation to the ULN as stated by the manufacturer for each assay. Centres involved have a special interest in coeliac disease, and therefore, there may be a referral bias.

In conclusion, this is the first multicentre international study to evaluate the new entity of USCD. Patients with USCD are younger than those with conventional coeliac disease and have lower serological markers of coeliac disease. Despite only having VA in the duodenal bulb, patients with USCD are both symptomatic and derive benefit from a GFD. This study endorses the recommendation of taking samples from D1 as a mandatory component of coeliac disease diagnostic workup.

Ethics statements

Patient consent for publication.

Not applicable.

Ethics approval

All clinical data were anonymised prior to analysis. Patients underwent clinical tests and assessments as part of their routine care. The Sheffield UK Coeliac Research Database was approved by the Yorkshire and the Humber Sheffield Research Ethics Committee, under registration number 14/YH/1216 renewed 19/YH/0095. The database is used to identify efficiently and comprehensively patients eligible for a specific healthcare intervention in order to help recruitment into trials, and for using routine clinical data to study the course of disease and effectiveness of healthcare used in daily coeliac clinical practice. Where necessary, all data collection was approved locally by research and development/audit departments within the country of collection. The study protocol was approved by the ethical committee of the Research Institute for Gastroenterology and Liver Disease, Shahid Beheshti University of Medical Science Tehran (protocol IR.SBMU.RIGLD.REC.1395.87), the local research committee at Palmerston North Hospital, the Columbia University Irving Medical Center Institutional Review Board (protocol IRB-AAAB0960), the local Institution Review Board of Caceres or the Ethics Committee of IRCCS Pavia, ICS Maugeri, Pavia, Italy (protocol number CE2381).

Acknowledgments

We would like to thank Dr Nuria Fernandez-Gonzalez for preparing the histological samples.

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Twitter @DrSunnyR, @Mo_Shiha

Contributors SAR, EAG and DSS conceptualised and designed the study with comments from AS, GA, NV, CLAJ, CG, MM, OG, FJB-H, MGH, HAP, SSC, CC, KR, SA, AM, MR-N, FB, UV, MF, BL, PHRG, SL, JM-I, PMR, VV, LE, IS and AE. Data were collected by all authors and collated by SAR. Data analysis was completed by SAR and interpreted by all authors. Writing of the manuscript was completed by SAR and edited initially by DSS and then all authors. DSS is the guarantor. The final version was approved by all authors.

Funding DSS has previously received an educational grant from Dr Schaer (a gluten‐free food manufacturer). Dr Schaer has no involvement in this study. HAP funded by a Clinical Lecturers grant (CL-2021-04-002) from the NIHR.

Competing interests None declared.

Patient and public involvement Patients and/or the public were not involved in the design, or conduct, or reporting, or dissemination plans of this research.

Provenance and peer review Not commissioned; externally peer reviewed.

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