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What happens when the principle fair use is weaponized?

Bogus copyright claims, DMCA takedowns and other means are being used to enforce censorship, settling grudges, and clamping down on expression through parody. What’s the world coming to?

If you’re clued into the whole YouTube scene then you’ve probably heard about the lawsuit between Matt Hosseinzadeh and h3h3 over the latter’s reaction video to the former’s cringefest. Reaction videos are often one of the most effortless and mind numbing things you can watch on YouTube. However, there are some who take it up a notch and set the benchmark for how reaction videos ought to be done. h3h3Productions, is a YouTube channel run by the hilarious couple, Ethan and Hila Klein. The Kleins are the originators of many memes on the internet such as Vape Nation and Papa Bless, and for popularising others such as Hugh Mungus. h3h3 really rip into whomsoever they’re reacting to and Matt Hosseinzadeh, like the overly sensitive folks of this era, decided to sue h3h3 for copyright infringement when they ripped into one of his videos. This lawsuit required h3h3 to accept that they breached copyright, pay up $4,000 and to never rip on Matt, again. Matt then demanded that they make a video promoting his channel but h3h3 rejected that demand and thus began one of the most closely watched lawsuits on the internet. Closely watched by creators because it was about a principle – the principle of Fair Use. And it is something all creators have to deal with on a regular basis.

The lawsuit stretched on for a year and a half and resulted in the judge deciding in favour of h3h3, essentially declaring that their reaction video, did in fact, constitute Fair Use. This lawsuit would have completely bankrupted the couple had it not been for another YouTuber who came to their aid by raising more than $1,70,000 towards legal fees. This lawsuit evoked the curiosity of many because of the huge precedent it would end up establishing, irrespective of which way the court ruled.

We are currently in an era where social and streaming websites are building more powerful tools to automatically flag and ban videos which are deemed incompatible with the site’s marketing policies. This is regardless of the fact whether these videos are indeed against the rules put down by the site and by society in general. Advertisers are the ones who are paying for everything on these websites and the video content along with the viewers constitute the product. Simple things can get a video flagged, for example, if the advertiser feels that a few too many expletives were uttered during a video, then it would be deemed unworthy of monetisation. And websites like YouTube would then bury the same video in the darkest corners of the internet simply because an unmonetisable video is worthless to them.

Enter AI

Now with AI thrown into the mix, websites such as YouTube could templatise what constitutes as monetisable content and that’s exactly what it did. What this resulted in, was a massive video purge, and one that reeked of double standards, as you’ll see. YouTube started mass deleting thousands of videos and even banned channels because these deletions triggered copyright strikes in rapid succession. And the rule of three strikes calls for a ban. Moreover, when a certain video got flagged, the algorithm started going through every video in that creator’s library to hunt for more infringements. This caused a snowball effect that led to the mass deletion. And it did not go unnoticed.

Copyright infringement on YouTube Credit: Flikr

The issue is not only about copyright but that of censorship on a widely used medium. YouTube is also used by many media organisations to archive videos of heinous crimes committed across the world, including situations that are currently developing such as the Syrian crisis. Many of these videos were lost in the purge, but the irony was that extremist propaganda was seemingly left behind. Hence, the double standard.

OMG! YouTube is alt-right?

Does this mean that YouTube condones extremist content? Or that advertisers are interested in such videos? Of course not. Copyright is a very complex issue, one that needs human intervention, at least until the accuracy of machine learning algorithms attains a high level of accuracy. YouTube says that videos are only auto-flagged, but bans are issued by human workers. If that’s true, then Google, which was recently embroiled in a ridiculous anti-diversity controversy, needs to seriously re-evaluate all those human workers. If not, then these human workers who have a skewed logic of what constitutes proper content will drive users away to another platform. The h3h3 lawsuit and the recent video deletion controversy should hopefully convince YouTube to take their auto-flagging algorithm back to the drawing board, for the sake of their own website.


This article was first published in the September 2017 issue of Digit magazine. To read Digit’s articles first, subscribe here or download the Digit app for Android and iOS. You could also buy Digit’s previous issues here.


Mithun Mohandas

While not dishing out lethal doses of sarcasm, this curious creature can often be found tinkering with tech, playing vidya' games or exploring the darkest corners of the Internets. #PCMasterRace