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In Newslaundry vs Aaj Tak, is YouTube allowing the misuse of copyright claims to stifle dissent?

After 55 copyright complaints in 2 weeks, YouTube took action; but could the decision have been more than just a bad call?

“I don’t know how YouTube plans to nurture and encourage a digital news ecosystem with independent platforms if this is how they allow legacy [media] to completely misuse their rules,” Abhinandan Sekhri, Newslaundry’s co-founder, told MediaNama, referring to the platform’s decision to block Newslaundry’s YouTube channel after TV news channel Aaj Tak reported it to YouTube for copyright infringement.

Aaj Tak filed 55 copyright complaints against the channel within 2 weeks. As a result, Newslaundry’s YouTube channel was locked on September 29, leaving the digital media body unable to upload new videos on the platform.

YouTube’s decision raises serious questions regarding the misuse of its enforcement procedures to stifle dissent and freedom of expression.

Why was Newslaundry’s account frozen and what happened after?

Newslaundry is a digital media platform that provides media critique, for which it often shows excerpts of Aaj Tak’s reportage to critique and comment on it in its YouTube videos. After Aaj Tak filed multiple copyright claims against Newslaundry, the digital media channel received 5 copyright strikes from YouTube.

YouTube allows the complainant to decide what action to take regarding copyright violations. In some cases, Aaj Tak decided that the video must be taken down. In others, the TV channel decided to monetise Newslaundry’s videos and earn from the ads, Newslaundry revealed in a video report on the event.

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Newslaundry has sent a legal response to YouTube regarding the issue and is still awaiting a resolution. When asked about his communication with YouTube, Sekhri told MediaNama:

Me and my colleague have had 8 or 10 phone conversations. I have sent about 4-5 emails. I get the same response [from YouTube] that is there on their terms and conditions that if there’s a copyright strike, we have to respond. 10-14 days after our response is sent to the party [Aaj Tak], if there is no adequate response from the other party, the videos are back up again. — Abhinandan Sekhri

Newslaundry responded to the copyright claims on October 1 but the channel still remains locked, Sekhri said.

YouTube is allowing legacy media to misuse rules: Abhinandan Sekhri

Sekhri outlined two major problems in YouTube’s process while dealing with these copyright claims:

  • YouTube’s powers to take down content: “Either they [Youtube] say you resolve it in court and they don’t take a decision until it’s resolved in court … If they’re deciding themselves, how has this decision been taken contrary to their own terms of conditions?” Sekhri said, pointing out that Youtube’s terms and conditions allow for fair use of copyrighted content.
  • Penalty for misuse of copyright mechanism: “If it does prove incorrect, what is the action against the other party? We got 55 claims and strikes in 2 weeks, so it is clearly motivated.” Sekhri said.

Sekhri also listed four specific questions he repeatedly asked YouTube in their communications:

  1. As long as the issue is in court, what happens in that duration? Does the YouTube channel stay locked?
  2. If it is deemed incorrect, will I be compensated for the time my channel is down? Who will compensate me?
  3. Since it is in compliance with YouTube’s own terms of conditions which make exceptions for fair use, why have these videos been taken down?
  4. Is there any punitive action that will be taken against those who misuse this copyright claim? Will their channel be taken down?

According to Sekhri, Newslaundry has not received satisfactory responses from YouTube on any of these issues. In response to our queries sent to Youtube, a spokesperson from the company said:

We strive to be fair to our users and protect their freedom of expression while also respecting the legal rights of copyright owners. Based on a valid copyright claim raised by a copyright owner, users have the option to file a counter notification when they believe their content has been removed as a result of a mistake or misidentification of the content, including fair use. The process further requires the claimant to provide evidence that they have initiated a court action within a specified timeline. We also overturn removal decisions where we find evidence that a removal request was submitted without considering exceptions to copyright law such as fair use, fair dealing or other exceptions – Youtube spokesperson

Copyright used to stifle dissent: IFF writes to YouTube

“Such copyright complaints, and any action taken thereon, are based on an incorrect application of copyright law and YouTube’s policies,” Internet Freedom Foundation, an Indian digital liberties organisation, wrote in its letter to YouTube on October 18. The letter outlined a few major concerns regarding YouTube’s decision:

  • Over-compliance: The IFF letter pointed out that 99.9% of the content takedowns on YouTube are due to copyright infringement claims, as revealed by a transparency report filed by the company.
  • Fair use: Copyright laws in both India and the US allow for fair use, IFF pointed out. “any action infringing the rights of a fair user under Section 52 of the Copyright Act impacts the constitutional rights of the user as well,” the letter said.
  • Freedom of expression: IFF argued that news media houses have a fundamental right to freedom of speech and expression and to carry on their business, and its audience has a fundamental right to access information through the internet. “Using copyright law to takedown journalistic critique is an overreach and misuse of the law,” IFF wrote.
  • Violation of IT Rules: Lastly, IFF also pointed out that under IT Rules 2021, YouTube must provide notice to a user before removing access to their account. “YouTube is legally bound to provide a right of hearing to a user before removing access,” the organisation wrote.

Pointing out these concerns, IFF requested YouTube to:

  1. Conduct its own due diligence when it receives a takedown request before complying
  2. Formulate mechanisms must abide by the Santa Clara Principles
  3. Allow a right to a hearing before taking down content

What are instances of copyright claims being misused on Youtube?

Here are recent instances where Youtube has purportedly allowed its copyright mechanism to be misused:

  • Eurasianet: YouTube blocked Eurasianet, U.S based news organisation, from its platform this month after state media in Turkmenistan complained about copyright violations, RFE/RL has reported. Eurasianet used clips from the Turkmen state TV and added context to meet the fair use requirements.
  • Video essays: In December last year, Gizmodo reported that video essays by individual creators were being taken down because of copyright claims. The report cites a particular instance where a detailed critique of a TV show was taken down due to a complaint by the network that owned it.

Update (25 October, 11:15 am): Response from Youtube spokesperson was added.

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Written By

Reporter at MediaNama. Email: nishant@medianama.com

MediaNama’s mission is to help build a digital ecosystem which is open, fair, global and competitive.

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