Lindsay Ellis and the Future of Content in Europe

I am a huge fan of media critic/video essayist/YouTube creator Lindsay Ellis. If you want to know why, check out her YouTube channel or this really amazing speech she gave at the XOXO Festival about surviving bad faith internet attack mobs. I’ve always had this daydream that someday I could get her interested in something we work on at my employer Public Knowledge. That way I’d be able to meet her, we’d geek out about policy and geek culture stuff, and she would become this amazing spokesperson for one of our causes, like net neutrality.


Well, daydream still just a daydream, but turns out Lindsay Ellis is now front and center in a fight about mandatory copyright filtering, and how it actually impacts artists and creativity that highlights what we and others have warned about for years. It also flags the likely future problems for creators in Europe, since Article 17 of the 2019 EU Copyright Directive essentially requires copyright filters for compliance. It also illustrates the importance of fair use in encouraging the creation of new works and new businesses (Lindsay Ellis has grown her video essay business to where she employs 4 people).


To give the headline: copyright filters can’t identify fair use, and the refusal of platforms to include an actual appeal process capable of making fair use determinations. As a result, copyright filtering does not “protect artists.” It heavily favors one particular and narrow set of creators over a much larger, broader set of creators — because things like education are not recognized as “art” or “creation” by the major labors and lobbyists driving the debate.


I unpack all this below . . . .

Is This One Of Those ‘Blocking A Fair Use’ Stories?


Actually, it’s much more complicated than that. Lindsay Elis’ problem demonstrates how complicated monetizing creative content really is and why simplistic arguments about how maximalist policies are “pro” copyright or “pro” creators are just plain silly. As the ancient Greeks knewanything taken to excess works out really badly.


So What Happened?


First we need to talk more about Lindsay Ellis. Besides, she’s really cool and everyone should subscribe to her channel.


We Get It. You’re a Fan Boy. You Made That Clear Above. So, Tell Us About Lindsay Ellis and What Happened.


Lindsay Ellis does a number of video series doing a combination of critiquing specific films, film genres and explaining concepts of film criticism. Examples include her “The Whole Plate Series” which explains concepts of modern film theory by analyzing Michael Bay’s Transformer movies; her Hugo-award nominated series on Peter Jackson’s adaptation of the Hobbit; and on numerous other subjects such as the ethics of transgressive humor (or “why you are not Mel Brooks“). Making these videos, of necessity, requires using lots of clips from the source material. Normally, using someone else’s copyrighted clips for this purpose would amount to infringement. After all, we live in a world where courts have held that even as short and banal a fragment as “players gonna play, play, play/haters gonna hate, hate, hate” is subject to copyright protection.


Fortunately, American copyright law recognizes that educating people about copyrighted works and using copyrighted works to educate people serves the purpose of the Copyright Clause of the U.S. Constitution (Article 1, Section 8) “to promote the progress of science and the useful arts.” Section 107 of the Copyright statute (17 U.S.C. 107) states that use of copyrighted material “for purposes such as criticism, comment, news reporting, teaching, scholarship or research is not an infringement of copyright.” Mind you, there are limitations on this. You can’t just copy something and claim fair use, as that would entirely defeat the point of having copyright. The statute gives 4 factors and case law has explicated these further (not always consistently or clearly). Suffice it to say for now that no one really questions that what Lindsay Ellis does meets the criteria for fair use.


Which is why I stress the “not” in the statute. Having met the criteria for fair use, the use is not infringing. It’s not “infringing but excused.” It is not infringing. This is a somewhat important point given what happened next.


So What Happened Next?


Recently, Ellis did a piece on Disney’s efforts over the last decade or so to rewrite the sexism of its original “Princess” archetype to a more acceptable “girl boss, lean in feminism” approach called “Woke Disney is WOKE!” The 30 minute video discusses the problem of Disney fixing things that are easy to fix — such as making their princesses more “woke,” being anti-animal cruelty in Dumbo — while simply ignoring more uncomfortable topics such as Disney’s long history of racism in its animated films and its continued focus on merchandising and materialism.


Ellis focuses particularly on Dumbo, as the differences between the original and the live action remake illustrate this point. As part of the video essay, Ellis used an approximately 5-second clip from the original animated Dumbo called “Song of the Roustabouts” which has particularly cringeworthy racist lyrics. As Ellis explained, scenes such as this and the 3 crows are never addressed and simply made to disappear, with no effort by “woke” Disney to ever acknowledge that racism ever existed in its new version of early 20th Century America — or address it’s contributions to that culture of racism.


And Disney Sued?


No, UMG owns the copyright on “Song of the Roustabouts,” not Disney.


OK, So UMG Sued?


No. YouTube’s “ContentID” system did detect the the 5-second clip, and verified that it did indeed match UMG’s copyrighted “Song of the Roustabouts.” Instead of requiring YouTube to take down the “Woke Disney” video, UMG opted to monetize the use of the clip by having YouTube insert advertisements in Lindsay Ellis’ video.


What’s Wrong With That? Isn’t It Their Clip?


Lots of things wrong with it. For one thing, under the Section 107 of the Copyright Act, UMG does not get to control that 5-second clip used in a 30 minute video that is clearly about criticizing and educating. That’s why I stressed the language above that says fair use “is not an infringement of copyright.” 


Unfortunately, copyright filters don’t know that. They don’t make fair use analysis. Heck, a 5-second clip could violate copyright under some circumstances. That’s why it’s called “Content ID” rather than “Copyright Magic Filter.” All it can do is detect whether a file on YouTube contains material that matches a file someone has uploaded into its content protection system (and even that it does poorly, with lots of false positives). Which is why YouTube (and just about everyone else) adopt a basic policy of honoring the complaint and requiring the person whose content is accused of infringing to work it out when it’s a question of adjudicating fair use. As Lindsay Ellis points out in the Business Insider article, this has the effect of massively favoring the complainant and the largest content producers who have the legal resources to fight about it.


At a minimum, we have UMG unfairly monetizing Lindsay Ellis’ work that they have no legal right to monetize. That alone ought to be considered a screaming injustice to anyone interested in making sure that creators get fairly compensated. But it gets much worse in this particular case.


Ellis, like many YouTube creators, makes her money through sponsorships. (You can see a fascinating discussion about the business side of successful YouTube creators in this interview with Ellis here.) In Ellis’ case, her sponsorship deal is with Audible. Audible has a clause in the contract that prohibits Ellis from taking any other advertising in the body of the sponsored YouTube episode. But Ellis cannot prevent UMG from using YouTube’s copyright dispute system from inserting advertisements in the Woke Disney video essay in direct contravention of her exclusive deal with Audible. I have not seen the actual contract between Ellis and Audible, but from Ellis’ comments in the Business Insider story, this is not a good thing. In any event, it is likely to raise questions for Ellis going forward, given that her entire video channel is dependent on using video clips for purposes of education and criticism.


Well That Sucks. But What Does This Have To Do With Europe?


The new EU Copyright Directive Article 17 removed the previous exemption from copyright liability for services which act as a “mere conduit” for infringing content and now require any service that lets anyone share any “copyrighted content”: (a) get a license (that is — the PLATFORM needs to get a license, not the third party sharing the content); or (b) show that it made the best effort possible to get a license AND (c) ” made, in accordance with high industry standards of professional diligence, best efforts to ensure the unavailability of specific works and other subject matter for which the rightholders have provided the service providers with the relevant and necessary information” (I had to quote the entire thing because trying to summarize that is bleeding impossible); AND (d) “acted expeditiously, upon receiving a sufficiently substantiated notice from the rightholders, to disable access to, or to remove from their websites, the notified works or other subject matter, and made best efforts to prevent their future uploads in accordance with point.”


Oh, but it doesn’t stop there. The Directive also includes a “principle of proportionality.” I suppose the idea was to protect small operators, but what it means is that the bigger and more general you are the more you have to do to avoid liability and the quicker you need to comply with any takedown notice. So if you’re YouTube, you gotta be just about perfect or face the threat of massive liability.


I’m not going to bother with the problem of how on Earth anyone complies with this. That’s the problem for EU member states to figure out. But what everyone has been talking about are content upload filters. That means (a) platforms spend $100 million to build something like YouTube’s Content ID system; and, (b) you can’t upload something if the Content ID system finds something that looks like a match. There are, of course, lots of negative implications for this for things like realtime streaming and for bad faith manipulation of the system. But again, let’s put all those aside right now.


Europe doesn’t have an Article I, Section 8 Copyright Clause and fair use like the U.S. has, but there is an international doctrine called “limitations and exceptions” that serves a similar purpose. No, it doesn’t work the same and I am not going to go into any details. But it would generally allow Lindsay Ellis to make her videos and distribute them in the EU. Except once Article 15 goes into effect, it’s unlikely she’d be able to upload them in the first place. Doing so would require negotiations for for huge numbers of individual clips with a wide range of creators, many of whom may be less than interested in allowing someone to critique their work.


I Sense We Are All About To Learn A Very Valuable Lesson Here.


What Lindsay Ellis’ experience shows is that copyright is complicated and requires nuanced judgments. It’s not just about “creators” v. “parasites.” No one watching any of Lindsay Ellis’ video essays could reasonably argue that her content is just as creative and takes as much work as creating any other content from scratch. It is educational in nature, and requires use of the clips. The essays use no more of the clips than necessary, and are not a substitute for the original. In short, they are everything that copyright is supposed to encourage.


Additionally, opting for a specific business model of sponsored content is a legitimate choice. Not every content producer wants to be on Netflix or licensed through a studio or supported by advertising in the body of the work. If copyright is about giving creators control, then surely it should include giving creators control of how to monetize their work.


But the simplistic world where expanding copyright is always good and tech platforms that actually enable the creation and distribution of content are always evil greedy parasites who could magically solve everyone’s problems if they would just “nerd harder” produces a particular set of results. Those results are quite predictable because market dynamics are predictable and the ability of technologies to make nuanced judgments is non-existent. So companies legally required to play it safe will play it safe. The philosophy becomes “block them all, the courts will know their own.”


This is helped because the big studios and content aggregators have fostered a particular view of what constitutes creative content that copyright protects. It’s the copyright equivalent of the one genius in the garage start up — the individual artist or musician or writer with their divine inspiration creating this unique work. No one thinks about video essays or sampling or other forms of creative work that explain or critique or repurpose other works as creative. To the contrary, the major studios have spent a great deal of time demonizing these forms of creativity as “parasites.” Anyone who raises objections to this simplistic world view is in turn demonized as “hating copyright” and trying to “starve artists.”


I do hope Lindsay Ellis gets her particular situation resolved. But solving this as a one-off is not going to move the needly much. As long as people cling to the comforting simplistic vision that if tech companies only cared enough they could nerd hard enough to magically distinguish between infringement and fair use with no collateral damage or impact on the business models and creative choices of other artists, we will continue to see systems develop in a way that favors the big guys with huge portfolios of copyrights and the resources to fight it out in court.


Stay tuned . . . .

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