PewDiePie’s YouTube channel description is simply: “I make videos.”

Over ten years ago, relatively early in the history of the video-sharing platform, the now-famous YouTuber uploaded the first videos to his channel.  Early on, the Swedish gamer and vlogger gained a following for posting gaming content, vlogs, comedy shorts and music videos.  He reached one million subscribers by 2012 and his channel had become the most-subscribed on YouTube by 2013. 

The rise of YouTube and the rise of PewDiePie have been symbiotic.  In 2016, YouTube sent him a Ruby Play Button to commemorate his achievement of 50 million subscribers on the platform.  And as of now, he has amassed over 26 billion views and despite recent controversy is among the platform’s highest earners.

Yet this week, PewDiePie had some beef to air with YouTube.  The content creator had posted a half-hour “Meme Review” segment that concluded with a, shall we say, interesting rendition of Celine Dion’s “My Heart Will Go On” on the recorder.  At least to me, the original melody is hardly recognizable in PewDiePie’s brief, discordant recorder performance (disclaimer: I am not a musicologist).  When YouTube flagged and “demonetized” the video, PewDiePie shared the following reaction on social media:

“So I got a claim on my KSI video.  At the end, we played ‘My Heart Will Go On’ (or at least that’s what we said we were going to play).  This is what it sounds like *plays clip* – it’s “too similar”, isn’t it?  So I appealed it, obviously – because it’s bullshit.  This is actually infringing on copyright, according to this company!  So all the revenue now goes to this company for the entire video.  Like what?!  I just thought it was bullshit.”

PewDiePie’s public gripe raises real issues regarding the treatment of copyright disputes on social media platforms.  Merits of the underlying copyright claim (and any fair use defense) aside, what is the process by which platforms such as YouTube adjudicate copyright disputes?  And what recourse is available to content creators who seek to dispute an infringement claim (and what happens to the ad revenue in the meantime)?  What are the implications for the rights of content creators and rights holders under the Digital Millennium Copyright Act (DMCA)?  In this and the following post we will look at the requirements under the DMCA and how platforms have responded with their own processes.

Social Media Platforms and the DMCA

Enacted in 1998, the DMCA was intended to address new issues relating to uses of copyrighted material update existing copyright legislation for the digital age.  In an effort to balance the needs of online service providers (OSPs) with those of content creators, the Section 512 “safe harbor” provisions of the DMCA shielded OSPs from liability for infringing content posted by third parties, provided that the OSPs comply with certain requirements – including taking down infringing content promptly upon notification by a rights holder.  Per the Congressional report regarding adoption of the DMCA, the “safe harbor” provisions were designed by Congress to provide “strong incentives for service providers and copyright owners to cooperate to detect and deal with copyright infringements that take place in the online networked environment.”

The DMCA establishes a notice and takedown process to enable copyright holders to cause OSPs (such as YouTube) to remove infringing user-uploaded material. Here are the steps required under the DMCA: 

First, the copyright holder must send a formal, legally-compliant “takedown notice” to the OSP requesting that the allegedly infringing material be taken down. If a takedown notice meets all legal requirements and the OSP nevertheless fails or refuses to take the material down, the OSP may become subject to potential liability for copyright infringement.  This incentivizes OSPs to comply with the request and remove the infringing content.

Next, supposing PewDiePie’s content were the subject of a formal DMCA takedown notice, what recourse would he have under the DMCA to dispute the claim?  The DMCA requires the OSP to notify users promptly when their content is removed and provides users the right to submit a counter-notice requesting that the disputed material be put back up.  If the user sends a counter-notice, the OSP is required to reinstate the content within 14 business days of the counter-notice unless the rights holder files a copyright claim against the user during that period.  If the rights holder does file a claim, the dispute is then adjudicated by the courts.

While the DMCA establishes the legal framework by which OSPs, users and rights holders are required to submit and dispute takedown requests, social media platforms have adopted their own processes and tools for managing the considerable influx of copyright disputes.  For instance, considering the “appeals” process and demonetization referenced in PewDiePie’s post, it seems likely that the copyright holder did not issue a formal DMCA takedown notice at all – but rather, the claim was submitted using YouTube’s own tools for handling disputed content.  It seems clear that PewDiePie’s appeal was submitted to (and his ad revenues withheld by) YouTube and not a court of law.

How then does YouTube manage requests regarding infringing content?  And how does that process overlay onto the legal process set up by the DMCA?  Stay tuned for Part II of this blog post for a deeper dive.