Disclamer: This article is about copyright, but I haven't studied law. I have studied copyright, its history and the theory behind it, but I am not an expert in current regulations. I have informed myself in several ways, as each of you could and perhaps should do, by reading, listening, and experiencing the situations that the DMCA has created. This is not an essay on the DMCA, it is an opinion piece.
Twitch made a mess. Yesterday, under pressure from record labels, deleted thousands of videos that violated the Digital Millennium Copyright Act, better known as the DMCA. This was followed by complaints from dozens of terrified, angry and confused streamers. Complaints obviously addressed to the site that canceled the work of a lifetime.
A story already heard, a scenario that follows what happened with YouTube and with the legendary Content ID, the automatic artificial intelligence system that identifies and reports copyright infringements. And it seems fair, in this situation, to blame the site. Be it Twitch or YouTube, What's wrong with playing music while playing or reacting to a Disney movie trailer, or broadcast a video game, or upload gameplay to YouTube? È fair use right?
No it is not. And to understand why we have to look the beast in the eye.
The legend of Fair Use
The beast is the Digital Millennium Copyright Act, a US law of 1996, transposed by European legislation of 2001 practically in full. It was written to defend copyright at the dawn of the internet age. Without going into detail, what you need to know is that it is very stringent and benefits the big labels. The moment you, person, company or otherwise, want to make money with a piece of an intellectual property of another company or person, you have to pay for a license. If you do not they can take you to court and take off your underwear too.
The only two exceptions to this brutal solution are "fair use", and the second part of the DMCA, theOnline Copyright Infringement Liability Limitation Act. The first is a term that identifies certain behaviors for which a license is not required if you want to use copyrighted content. You've probably heard of it before since has become legendary on the internet.
In the descriptions of thousands of videos the name Fair Use is brandished to ward off the ghost of the Content ID, obviously in vain. Because that norm protects only three specific behaviors: criticism, parody and transformation. Of the three the last is the only one that is exactly what it seems. Content using another copyrighted content must be completely different from the original. For the other two, however, the law says something very different from what we think it actually says. The criticism and parody must be of the content that has been borrowed, and nothing else. Memes, for example, don't fall into this category. If you've ever used Pepe the Frog for any reason other than criticizing the comic it came from, you've broken the DMCA. Minecraft gameplay? Violation. Live of any game? Violation. A rap song cover made by a guy with an acoustic guitar? Violation. Conte meme late for the press conference? That's right, that too, violation.
From this follows a curious situation. There are entire businesses that employ thousands, perhaps millions of workers, which are based on systematic copyright infringement. From Twitch to YouTube, to sites like Gify and Soundcloud, all of these companies would disappear if only the record labels decided to sue them. So why don't they?
Here comes into play theOnline Copyright Infringement Liability Limitation Act. This part of the DMCA establishes a mechanism by which companies can notify sites hosting third-party content of an infringement of their copyright and instruct them to remove it. It is thanks to this rule that sites like YouTube have seen life. But what are the consequences on Internet 2.0 of a law written at the time of the forums?
The brutal Content ID
How do you respond to copyright infringement notifications from dozens of labels around the world when they are uploaded to your site several human lives of video per second?
Simple, you make an artificial intelligence do it. This is how YouTube's Content ID was born and Twitch is heading in the same direction. Situations that would have been resolved in '96 with calls from angry lawyers are now handled by a robot with a bad sense of humor, who doesn't distinguish parody from copyright infringement. But if you have read the previous paragraph carefully, you have already understood that this is the only way.
If YouTube and Twitch didn't remove the videos, the labels could sue not only the site, but the content creators as well. When you complain that the five cents from advertising on your FIFA Opening Pack goes to Warner Bros., the owner of the song you used for the intro, you think the alternative would be to face a million dollar lawsuit.
Moreover, demonetization is not foreseen by the law, it is a loophole. There is no copyright infringement if there is no commercial use. Just get the money to go to the right people and there are no complaints. Or at least there are no complaints from those who can afford to hire a squadron of angry lawyers.
… But it's unfair
You sought justice but found the law, the poet sang. It is on this point, which seems obvious and childish, that we should all reflect. Because the moment when most of the population considers an unfair law is always a moment of breaking. In a few years the generation that participated in the birth and growth of the internet in their youth will begin to come close to power. In some cases it has even already arrived. Few realize this, but Foreign Minister Luigi di Maio is only one year older than our Fraws.
In 2019, discussion in the European internet had been monopolized by Article 13 of the European Copyright Directive. Great videos, articles, tweets and posts outraged by the upcoming criminalization of memes.
But I wonder how many of those who complained on the internet then voted for the Europeans. And how many of those who actually participated in the session, those same parties that approved the much-despised article 13 voted.
The only way we have to act, however, is that. There is no point in going to YouTube or Twitch to cry when they are simply obeying the law. This is not to say that the law is right. On the contrary, it goes against the way we believe the system should work. Precisely for this reason we should feel compelled to do something.
Let's stop treating multinationals as if they were states and we begin to try to change with the means that we have the realities that we do not like. A huge part of the entertainment our generation consumes is under constant threat from an old and unsuitable law. The least we can do, to continue enjoying it, is to read two articles before putting a cross on a symbol once every four years.