Hi All!
Vy and I are working on two very similar papers, and have decided to combine our work for this presentation. Our topic is copyright trolling on Youtube. Here’s a brief overview of what we will be talking about.
What Is a Troll?
A Copyright Troll (“Troll”) is an actor within copyright regimes of the United States and Canada that utilizes legal measures to coerce victims to engage in behaviour they may otherwise not do. Their history pre-dates the internet; however, their process of seeking out victims and leveraging their rights towards a defined goal is still the same. Such a phenomenon is the product of the tensions between striking a balance between the rights of creators and the rights of users. As such, there are three identified Trolls identified based on our research.
Types of Trolls.
The advent of the Internet generally, and the Digitial Millenium Copyright Act specifically, has created the present ecosystem where most online copyright trolls operate. This system has led to Trolls splitting into three unique types based on their victims and methodologies. The “Type A” Troll seeks to enforce its copyright in the context of pirated content online. This enforcement usually requires that it patiently wait for internet users to illegally share their copyrighted works, and then engage in a lengthy process of threats and litigation to pressure them into a settlement. This process begins by sending a notice through the help of an Internet Service Provider to the user, and later escalating to threats of litigation if this troll does not believe that their goals are satisfied. The “Type B” Troll typically sees another user using their work in an unlicensed manner and immediately demands that they remove the material or engage in litigation. Most importantly, the “Type C” Troll merely utilizes the “Notice and Takedown” system of Youtube to threaten the removal of channels.
Youtube and Trolling for Profit.
Such a threat is a powerful force due to YouTube’s three-strikes policy and counter-notice mechanism. If a user has had their material removed for copyright infringement more than three times in ninety days, then they will potentially lose their channel. Unscrupulous Trolls have utilized this policy to coerce payment of smaller channels as is seen in Brady v. Youtube. This new type of troll presents new challenges for the copyright regimes in Canada and the United States. Traditional means of defending users simply do not have any application to Type C Trolls. For example, protections such as “standing”, the Norwich Order process, and Fair Dealing protections do not provide any protection, unless a Type C troll was to engage in the formal litigation process.
Youtube and the Weaponization of Trolling.
Another way in which users abuse YouTube’s three-strike policy can be found in copyright censorship. While the Copyright Act and the DMCA allow for the defence of fair use/dealing as a way to counter fraudulent copyright claims, the long and tedious process of disputing such a claim makes it an effective tool in silencing criticism. While false copyright claims as a method of censorship had previously been used outside of the realm of YouTube and the internet (as seen in TD Bank, N.A. v Hill), it has become commonplace with the realm of influencers and other internet celebrities. YouTubers The ACE Family and Trisha Paytas (who have a combined 23.5M subscribers) garnered criticism in 2022 for falsely claiming copyright on several drama reporting channels. This is exacerbated by their use of media management company Superbam Inc which uses bots to screen hundreds of thousands of videos to weed out any that might feature content originally uploaded by the influencers, not caring whether it was used within Fair Use/Dealing or not. As a result of this, many drama channels have become hesitant to cover any news regarding these influencers, effectively censoring any criticism that could arise from their behaviour.
This weaponization of copyright as a means of silencing dissenters had been warned against by Judge Pierre Leval, stating that by “registering a copyright, public figures who are the expected focus of public interest could use this supposed commercial protection as an aggressive weapon to prevent the publication of embarrassing revelations and to obstruct criticism.”
A Potential Solution.
A potential resolution is to institute a “copyright misuse” / “Abus de Droit” remedy that would provide courts with greater discretion to dismiss cases based on bad faith exploitation of the copyright regime. Moreover, social media companies may facilitate a more involved notice and takedown system that protects user interests. However, such resolutions are subject to jurisdictional issues and will thus require greater research.
Links For Material Discussed in Presentation.
Youtube v. Brady: https://docs.justia.com/cases/federal/district-courts/nebraska/nedce/8:2019cv00353/84712/1
Righthaven: https://journals.library.columbia.edu/index.php/lawandarts/article/view/2163
CBC v. Conservative Party: https://www.fasken.com/en/knowledge/2021/07/the-canadian-broadcasting-corporation-v,-d-,-conservative-party-of-canada-decision-and-fair-dealing
TD Bank, N.A. v. Hill: https://casetext.com/case/td-bank-na-v-hill-2
Influencer drama:https://www.youtube.com/watch?v=lO1FJw7fLBY
