Facebook is once again embroiled in a public battle this time over video posts that are costing YouTube creators millions of dollars in lost profits. Over the course of the past year, Facebook has enhanced its platform to focus on video, so that users can share and watch video content directly on the site without having to take the Facebook user to another platform. CEO Mark Zuckerberg recently announced that Facebook had increased its daily video views to 4 billion, an unprecedented increase from 1 million in September 2014. Many of the videos that are posted and viewed on Facebook tend to be originated on YouTube, the largest video hosting site in the world.
But the average user posting content on Facebook is doing so without permission from the original creators, and that’s costing serious YouTube content producers some pretty serious money.
Just ask popular YouTube stars Hank Green and Jack Douglass – both internet success stories have cried some very public grievances concerning Facebook’s video business, which so far does not have a system in place to prevent copyright infringement by its users, and it’s cost Green and Douglass substantial losses in potential income.
In 2007, YouTube launched a program that split the revenue for ads it ran alongside videos with the people who made them. Video creators were offered an earnings system based on the amount of views their videos collected: the higher the views, the bigger the income. As reported by Atlanta’s Wabe.org, it took Douglass years to earn the following on YouTube that resulted in Douglass being able to live off his comedy videos.
But once Facebook launched its video platform, Douglass had a problem: In one of several instances, a very popular Facebook group, which has millions of followers, posted his video to Facebook. The video garnered millions of views within the first hour. Because the video wasn’t being viewed through YouTube, Douglass was not able to capitalize on the ad revenue system he enjoyed with YouTube. And because the video had received such widespread attention within the first hour, by the time Douglass got the group to remove the video from Facebook, his earnings capacity was already gone: The video had become stale in the fast-paced, fickle trends of the internet. The result was almost $20,000 in lost profits from Douglass’s video.
Douglass’s story serves as a great reminder that re-posting content on the internet can have legal ramifications. Do YouTube stars have any options for regaining their lost profits from Facebook? What are some of the solutions Facebook has promised content creators?
Why Posting a YouTube Video to Facebook is Copyright Infringement
As we’ve outlined in our free copyright e-book, the Law of Creativity, YouTube video creators undoubtedly have a copyright in the works they create: their original works of authorship, fixed in a tangible medium, with a minimal degree of creativity. As the copyright holder of a protected video, only the YouTube content creator has the right to distribute, display, or make derivatives of the work in question. So when a Facebook user uploads a protected video without the express permission of the copyright owner, they are infringing. Seems like a pretty open-and-shut case right? Not quite – thanks to the Digital Millennium Copyright Act (DMCA), Facebook is protected from being sued for copyright infringement, so long as it takes the offending material down.
Facebook’s Safe Harbor Under the DMCA
As an internet service provider, Facebook is afforded certain protections under the DMCA, which has shielded the company from facing any lawsuits from YouTube creators. As we’ve previously discussed in our article on Grooveshark and the DMCA, Facebook is protected so long as it has a system in place for removing allegedly infringing content. Once a YouTube creator has detected an infringer, they must notify Facebook, who is required to take the material down promptly. Once Facebook removes the content, they must notify the infringer, who has the option of serving Facebook a counter-notice alleging (under penalty of perjury) that he or she believes the material was improperly taken down. At that point, the copyright holder has 14 days to file a lawsuit. If they don’t, Facebook is permitted to re-upload the infringing content.
This system is somewhat troublesome because it requires quite a bit of work and upkeep on the part of the copyright holder, and assumes that users are working on an honor system when counterclaiming infringement notices. For example, if a repeat infringer can be certain that the copyright holder likely won’t file a lawsuit, they can allege that their infringement was fair use and likely get away with their lie without any legal ramifications.
Additionally, the DMCA requires Facebook to have a system in place for discouraging and dealing with repeat infringers, which it currently does not. In fact, copyright infringement is rampant on Facebook, with major celebrities with large followings using copyrighted videos to promote their own goods and services. In fact, in order to comply with the DMCA, Facebook should be terminating accounts of those repeat infringers.
Facebook’s New Plan for Dealing with Copyright Infringement
Under the DMCA, Facebook is required to have a plan for dealing with repeat copyright infringers. While the company has alleged it has measures in place to address copyright infringement, including suspending accounts guilty of repeated violations, many are concerned about the efficacy of this policy. In an effort to put users at ease, Facebook has announced it will introduce a new video matching technology product designed to identify videos uploaded as duplicates of videos already uploaded directly by the creators. According to one of Facebook’s recent blog posts, this new technology is tailored to Facebook’s platform, and will allow creators to identify matches of their videos on Facebook across “pages, profiles, groups, and geographies.”
But it’s important to note that Facebook’s new technology puts the burden on the creator to identify the impermissibly uploaded video. Creators will have access to a Web-based dashboard that will allow them to identify videos they’d like to monitor. If the system finds a matching video, the creators then have the option to report the clips to Facebook. It’s an almost impossible burden for creators, since their work often spreads like wildfire across the internet. Requiring users to register the videos they wish to protect is an additional step that programs like Google’s Content ID, which finds videos posted without permission and flags it for content creators automatically.
Additionally, Facebook doesn’t have any sort of ad sharing revenue system in place to ensure video creators get paid for their content – despite the fact that such a plan would likely drum up its video business significantly, since it would provide incentives for people to create videos specifically for Facebook.
While Facebook’s poor copyright infringement policies are certainly making waves among the YouTube content creator community, the company’s nonchalance doesn’t exactly come as a surprise: the company should focus on shifting its often questionable standard of ethics with the fervor with which they increase their bottom line.
Are you a content creator on YouTube? Do you find yourself at a loss to deal with Facebook’s lax policies for protecting your content? Feel free to email us with your questions.