Stephen McArthur is an attorney that focuses on intellectual property and privacy law and litigation at The McArthur Law Practice. You can read more about his practice at www.smcarthurlaw.com. 

I. Introduction

In December 2013, Joe Vargas, a gamer who has made a career of uploading video game related content to YouTube under the screen name AngryJoe, received a series of automated copyright takedown claims removing 62 of his most popular YouTube videos. The claims were made by Content Managers, which are YouTube accounts that are authorized to upload audio or visual material to YouTube’s ContentID system. Like many other gamers who have had their entire accounts threatened with termination when their videos are flagged for copyright infringement, he lamented that fighting back would be futile and expressed the commonly held belief that gamers “have no power to fight. Who do we go to? The ContentID system is a robot. Am I supposed to take on Square Enix and Sega? Do I take them to court? ... Or do I just remove all my most successful videos?”[1] Despite gamers' general feeling of frustration and helplessness, contesting a ContentID claim against even wealthy corporations is actually routine and simple. As an intellectual property attorney, I’ve been on both sides of ContentID and DMCA disputes—sending copyright takedown notices and defending clients from them—allowing me to explain the issues to you from either legal angle.          

Below, I explain why your videos get flagged by Google’s automated copyright scanning system, what you can do if your video is erroneously flagged, and how you can fight back against a Content Manager and use the existing YouTube copyright regime to your own advantage. If you are already very familiar with ContentID and the dispute and appeals process, then skip to Section VII, which gives a legal analysis of the little understood Counter-Notification process and how you can get monetary damages from a Content Manager who improperly denies your appeal.

II. Video Gaming as a Career

In the past, people learned of new video games by reading gaming magazines, seeing commercials on television, or visiting their local game store and browsing the new releases. But these days, the hype for the next big game begins with social media, especially with YouTube videos and Twitch streams. Ninety-five percent of gamers use YouTube for their gaming news and entertainment.[2] Gaming related YouTube videos are so popular that some content creators build entire careers out of uploading videos on a daily basis. YouTube gaming videos, whether they are Let’s Play, reviews and criticism, machinima, or speedruns, are good for both the gamer as a source of revenue and the game publisher as a source of free advertising and viral marketing. Despite this, some game companies, especially Nintendo, have a reputation of treating uploaded clips of their games as piracy.[3]

A “Let’s Play” is a recorded playthrough of a video game that includes player commentary.  Unlike a strategy guide or speedrun, a Let’s Play focuses on chronicling the player’s individual experience with the game and whatever the player may be thinking about at the time. A game review, by contrast, usually only has relatively short snippets of gameplay or cinematic trailers while focusing mostly on the reviewers’ critical analysis of the game. On its surface, a Let’s Play is simply watching a stranger play a video game. But watching a good Let’s Play is like playing a video game with your best or funniest friend – the game itself doesn’t matter as much as the experience. Let’s Players create videos as a full time job and are funded by Google AdSense advertising revenue. The successful Let’s Player must be insightful, witty, and funny – they are first and foremost an entertainer and a gamer second. Going forward, for simplicity, I’ll refer to all Let’s Players, reviewers, and anyone else who streams or uploads video game related content as “Gamers.”  

III. ContentID vs. DMCA Takedown Notices

The first fundamental to understand about the YouTube copyright regime is that there are two separate and completely different frameworks in which a Gamer’s video might be flagged, and there are different consequences for each. The first is the automated ContentID system that applies copyright flags (“Flags”) to accounts. You can “Dispute” a Flag and “Appeal” a rejected Dispute. The second framework is a manual DMCA copyright takedown notice (“Takedown Notice”) sent by a Content Manager if they wish to deny an Appeal. Content Managers generally prefer ContentID to Takedown Notices since ContentID is automated and allows them to redirect monetization whereas Takedown Notices only allow a complete removal of the video. Furthermore, Takedown Notices cannot be automated, must be submitted under penalty of perjury, and expose the Content Manager to potential damages in court if the Takedown Notice is submitted frivolously.

A Gamer’s entire livelihood can be threatened by any kind of copyright claim since YouTube allows copyright holders to remove videos, shut down the Gamer’s account entirely, or simply leave the video online but redirect all advertisement monetization away from the Gamer and directly to the Content Manager. A copyright claim on any tiny portion of a Gamer’s video threatens the entire video. It does not matter that the Flagged copyrighted content is only a few seconds of a long video. For example, TotalBiscuit (a popular game reviewer and Let’s Player) uploaded a three hour video that included a one minute trailer from a Nintendo Pokémon game, and the entire video could not be monetized because of that one minute of copyrighted content.[4]

IV. ContentID Explained

YouTube’s ContentID system is an automated copyright flagging system that allows Content Managers to automatically remove or redirect the monetization from any video that contains any amount of their copyrighted work. First, Content Managers upload their audio or visual copyrighted material to ContentID. Second, every time that anyone uploads a video to YouTube, YouTube automatically crosschecks that video against its entire ContentID database of millions of copyrighted works. If it detects any amount of a copyrighted work anywhere in your uploaded video, it will Flag the video. Content Managers are able to select one of three options to automatically apply to any video that gets Flagged: (1) do nothing and simply track the video, (2) block the video entirely, or (3) redirect all monetization and advertising revenue from the video to the Content Manager. The vast majority of Content Managers choose the third option to redirect all monetization to themselves.   

V. Tips on Avoiding ContentID Flags   

The most common reasons for getting flagged by ContentID are because a Gamer’s video includes music, cut scenes, or video game trailers. If you omit all three of those from your videos, the odds of getting a legitimate ContentID flag are close to zero.

Game Music: Soundtrack, themesongs, and music from a game are by far what gets Gamers’ videos Flagged the most. If there is any doubt, turn off the video game’s music, especially on Triple-A titles. Turning off the game’s music has the added benefit of making editing the video much easier since you can naturally overlay your own publicly available music later.[5] Even permission from a Content Manager to use their game does not always include permission to the music since they usually are not the owners of the music and don’t have the authority to give you that permission. A music distributor or record label may own the entire game’s soundtrack. Be especially aware of music in cutscenes since it can play even when you have music turned off in the game options. It’s usually OK to leave sound effects enabled when you turn off the game’s music since ContentID won’t flag them. 

Background Music: Don’t play your own background music that’s not in the public domain. Turning on Spotify, Pandora, playing a CD you’ve purchased, or even having a television on in the background can get you Flagged. If you play a Nirvana song on Spotify while you play or review a video game, then a music publishing Content Manager will Flag your video. If you Dispute and Appeal it on the grounds that you have permission from the video game publisher to use the game content, you will lose and get a Strike against your account.

Cutscenes and Trailers: Even with no sound, cutscenes and trailers can be flagged visually by ContentID. I advise my clients to use no more than a few seconds of any cutscene or trailer, even if they are talking over it and reviewing it. Showing any more than about ten seconds risks a ContentID Flag if the game developer is aggressive. If you do show a cutscene or trailer, interlay it with clips of yourself talking and analyzing the video and mute it if it has any unlicensed background music.

Publisher Permission: You should consider getting explicit permission from each game publisher before you make a video of their game. Most of the top Gamers never review a game or upload a Let’s Play without the publisher’s express permission. Once you have their permission, it’s illegal for the publisher to send you a Takedown Notice for the material you were granted permission to use. That fact made TotalBiscuit victorious in a battle with Wild Game Studio who tried to have his negative review of their game removed with a Takedown Notice despite giving him prior permission to use their game.[6]  

Publishers who have generally given Gamers permission to use their games include Blizzard, Ubisoft, and Riot Games. The most comprehensive list of game publishers’ licensing policies can be found at: http://letsplaylist.wikia.com/wiki/%22Let%27s_Play%22-friendly_developers_Wiki. If you do not have permission from the publisher, then according to YouTube’s policy, your Let’s Play commentary must be “strictly tied to the live action being shown and provide instructional or educational value.”[7] I also advise asking publishers to “whitelist” your account in their Content Manager, meaning that ContentID will never flag you for their uploads.

Multi-Channel Networks: Many of the most popular Gamers join Multi-Channel Networks (“MCNs”) such as Polaris or Fullscreen. The benefits of partnering with an MCN include: (1) streamlined video upload and monetization process, (2) assistance with ContentID matches and DMCA Takedown Requests, and (3) various marketing services including promotion and introduction to other talent. In return, MCNs take about 30-50% of the revenue generated by the advertisements on your channel.[8]

It can be difficult for an unaffiliated individual to get a large publisher to respond to their request for permission. MCNs can more easily get blanket permission from publishers to use their game content. Indie game companies are far easier to get a response from. If you simply Tweet at them asking for permission, they’re usually happy for the attention and glad for videos promoting their content. Otherwise, use a search engine to find out their general email address or the contact information for their PR company.

Embargoes:  Be aware of embargo requests from publishers if you acquire a game before its official release date. Twitch will enforce a publisher’s embargo request.[9] Usually, this only means waiting a night or two for the official release if you manage to get your hands on the game early. In April 2014, TinyCo accidentally released the Family Guy mobile game on the New Zealand iOS App Store after a “brief technical error.”[10] Naturally, Gamers immediately began posting Let’s Plays of the game and streaming to Twitch and YouTube. Despite legally downloading the game, they still had their videos removed and accounts entirely shut down. 

VI. So, Your Video Has Been Flagged. What Happens Now?

If ContentID Flags one of your videos, YouTube will link you directly to the clip that triggered the Flag and give you the name of the Content Manager that is claiming ownership. Use that to evaluate whether or not the Content Manager actually owns the copyright to the claimed material. ContentID makes mistakes all the time, and there are some unscrupulous entities out there that claim content that they clearly do not own solely for the purpose of siphoning away advertising revenue from Gamers and other video uploaders. Other times, legitimate Content Managers make innocent mistakes and claim content that isn’t theirs or that they’ve given blanket permission to the public to use.

Gamers have even had footage of their own game that they developed and coded line by line removed by someone else claiming it as their own through ContentID.[11] One video uploader even had ContentID remove his video of himself picking vegetables outside since a Content Manager claimed rights to the sounds of nature.[12] So, be aware that not all Content Manager accounts are authentic and some will Flag material they have no ownership of.

Dispute

When ContentID automatically Flags your video, you have the option to either acknowledge or dispute the Flag. If you acknowledge the Flag, you are admitting that the copyright claim is legitimate and you are prevented from Disputing it later. If the Flagged claim is not genuine or if your use of the content qualifies as fair use, then you should always Dispute the claim. There are no additional consequences for losing a Dispute. Most legitimate Disputes are successful and the copyright claims are released. Many Gamers have Disputed dozens or even hundreds of claims and won every single one.

If you Dispute the claim, you simply need to write a short reason why the claim is not genuine or why your use is fair use. YouTube does not make the decision in a Dispute, the decision is instead made entirely by the Content Manager within thirty days. During that time, your video will be restored, but cannot be monetized. The advertising revenue is not held in escrow, it’s simply lost to you. So always resolve these disputes as quickly as possible because they directly affect your bottom line.[13] 

Appeal

If your Dispute fails, then your next option is to Appeal the ContentID Flag. Just like the Dispute, an Appeal is decided solely by the Content Manager within thirty days. If you submit an Appeal, the Content Manager has two options: (1) back down and release their claim on your video and remove the Flag, or (2) submit a DMCA Takedown Notice to deny your Appeal. Be careful before you submit an Appeal: unlike the Dispute process, you will get a copyright strike (a “Strike”) on your account if the Content Manager submits a Takedown Notice.

C. Three Strikes and You’re Out – DMCA Takedown Notices

When a Content Manager denies your Appeal with a DMCA Takedown Notice, you get a Strike on your account, which is quite serious since it puts various restrictions on your account. When you receive a Strike, your entire video will be removed, your account will no longer be in good standing, and you can lose monetization privileges. If you receive three Strikes on one account, your entire account and all associated videos will be terminated.[14] Even a single Strike on your account should not be taken lightly.

You cannot get Strikes from ContentID Flags. You can only get Strikes from manual DMCA Takedown Notices sent by Content Managers after you Appeal a Flag. All Takedown Notices are submitted under the penalty of perjury and it is illegal to send them automatically by a robot similar to how ContentID is administered. Another difference from denying a Dispute is that an Appeal denial actually exposes the Content Manager to damages in court if they submitted it inappropriately.

You can get rid of a Strike by: (1) waiting six months and taking Google’s online “copyright school,” (2) asking the Content Manager to politely have mercy and retract the Takedown, or (3) submitting a DMCA Counter-Notification.

VII. DMCA Counter-Notices – The Misunderstood Sword for Gamers

Gamers who get Strikes are encouraged by YouTube to simply ask the Content Manager for an informal ‘retraction.’  Unsurprisingly, retraction requests are almost always ignored as the Gamer waits weeks wondering if they are ever going to hear back and laments that the copyright system is stacked against them. 

The Counter-Notice is the second option available to Gamers, but YouTube does not educate users about how it differs from an Appeal.[15] The most salient details that YouTube omits from telling users are that:  (1) if you file a Counter-Notice, YouTube is legally obligated by federal law to reinstate your video in 10 to 14 business days if the Content Manager does not file a lawsuit against you, and (2) monetary damages are available to victims of false Takedown Notices and Counter-Notices pursuant to 17 U.S.C. § 512(f).

A Counter-Notice is not just another Appeal or another step of the ContentID system that strongly favors the Content Manager. The Counter-Notification is entirely different from the earlier Dispute and Appeal processes since it’s the only time where the sole judgment of the Content Manager is not absolute. Even when its copyright claim is meritless, a Content Manager can unilaterally deny your Dispute and Appeal. But a Content Manager cannot simply deny a Counter-Notice. If the Content Manager who sent the original Takedown Notice does not respond to your Counter-Notice by filing a lawsuit in federal court within fourteen business days, then YouTube is required by law to immediately restore your video to its previous position. 17 U.S.C. § 512(g)(2)(C). The odds of a Content Manager actually filing a lawsuit are incredibly low if their copyright claim on your video is weak. In fact, as far as I’m aware, no Content Manager has ever filed a lawsuit against a Gamer. Furthermore, if they see that your Counter-Notice was submitted by a copyright attorney, then it’s even less likely that they would want to get involved in a legal dispute with you. The most common reasons to file a Counter-Notice are: (1) your use of the copyrighted material was fair use, (2) the Takedown Notice was submitted by a Content Manager who does not actually own the copyright, or (3) the Content Manager has previously given public blanket permission for Gamers to make videos of their content.

And it gets worse for the Content Manager who frivolously denies a Gamer’s Appeal. It is illegal to file a false Takedown Notice (i.e., ContentID Appeal denial). If the Content Manager actually decides to file a federal lawsuit, and the court determines that the Content Manager knew that its Takedown Notice was based on a “misrepresentation,” then they are obligated to pay damages to the Gamer that include court costs and the Gamer’s attorney fees. 17 U.S.C. § 512(f). In 2004, a copyright owner had to pay two students $125,000 after it sent an unwarranted Takedown Notice for material that was clearly fair use. Online Policy Group v. Diebold, Inc., 337 F. Supp. 2d 1195 (N.D. Cal. 2004).

According to TotalBiscuit, one Content Manager sent him and dozens of other Gamers a Takedown Notice for simply talking about one of its games.[16] If that’s true, then not only was the video takedown and the account Strike illegal, but TotalBiscuit could have sued the Content Manager for monetary damages since no copyright holder could think that simply talking about their game amounts to copyright infringement.[17]

The implications of this are powerful – contrary to the common belief that all of the copyright power is in the hands of the Content Managers who can Strike accounts without oversight, the Counter-Notice process actually puts the power in the hands of adroit Gamers. Gamers can legally force YouTube to reinstate their video within fourteen days and get monetary damages in federal court if the Content Manager continues to push its false copyright claims against them. 

There are two reasons for caution before your submit a Counter-Notice. First, to file a Counter-Notice, you must state under penalty of perjury that you have a good faith belief that your video is not infringing the Content Manager’s copyright. Penalty of perjury means that you can be prosecuted criminally if you are lying. Second, if the Content Manager does in fact have a winning copyright claim against you, then you may provoke it to file a lawsuit against you since that is its only available option to keep your video removed. That said, I would not hesitate to send a Counter-Notice in any situation where a Content Manager is bullying a Gamer with a false copyright claim.

VIII. Fair Use

Fair Use usually takes the form of news reporting, parody, review or criticism. 17 U.S.C. § 107.  There is no judicial precedence for whether or not Let’s Play videos are fair use, so they exist within a grey area of the law. Game reviews and criticism are, however, archetypal fair use examples. Nevertheless, ContentID is an automated process that does not even attempt to make a fair use determination. That means that even if your video is obviously and undeniably fair use, ContentID will still Flag it for removal. For example, AngryJoe included just a short clip from a cinematic trailer for Guild Wars 2 in a thirty minute video where he awarded it the “Best Game of 2012” and used the clip from the trailer to illustrate how great the game was, and yet ContentID Flagged his entire video.[18] Even though AngryJoe’s critique and use of a limited portion of the cinematic to review the game was fair use, ContentID does not ever make any kind of fair use determination under any circumstances. The fair use determination is made only by the Content Manager during the Dispute and Appeal process, which is why it’s important for you to understand exactly how fair use works and be able to communicate it to the Content Manager so you don’t get a Strike.

Fair use is an amorphous concept, relies on a complex four-factor balancing test, and is usually significantly more narrow and limited than the average non-lawyer thinks it is. Consult a video game lawyer who can tell you exactly whether or not your video qualifies as fair use and cite the most recent and relevant caselaw in any Appeal before you rely on it as a defense to copyright infringement. The expense can be well worth avoiding Strikes and a complete account termination. Personally, I agree with the view that the video game is simply a canvas, and a Let’s Player is like a painter that creates a new and transformative work with each interactive playthrough and unique narration. In a Let’s Play, the player isn’t simply recording a pre-made video game – she is instead creating a brand new and original experience with each unique playthrough. The fair use case is even stronger when a Let’s Play includes a review or criticism of the game. Fair use, however, is not an excuse for a Let’s Player to include the game’s soundtrack or other background soundtrack in her video since it can simply be turned off.

IX. Summary of Tips

If you follow the simple tips of turning off in-game music, not playing your own unlicensed background music, and limiting your use of cutscenes and trailers, then you’ll avoid almost all ContentID and DMCA Takedown claims. If you do get an unwarranted Strike on your account, then fight back with a Counter-Notice and remind the Content Manager of their monetary liability under Section 512(f) of the DMCA for sending you a frivolous Takedown Notice. YouTube is required by law to reinstate your video within fourteen days unless the Content Manager goes to court. The Counter-Notice is an underestimated and powerful legal weapon against Content Managers who push frivolous copyright claims in order to intimidate you.

This article is for general information purposes and is not intended to be and should not be taken as legal advice.

[1] http://www.youtube.com/watch?v=JQfHdasuWtI&t=9m47s.

[2] http://www.thinkwithgoogle.com/articles/youtube-marketing-to-gamers.html

[3] http://www.gamasutra.com/blogs/GregLastowka/20130517/192424/All_Your_Nintendo_Lets_Plays_Are_Belong_To_Nintendo.php.

[4] http://www.youtube.com/watch?v=QfgoDDh4kE0&t=10m34s.

[5] You can find public domain music at https://www.youtube.com/audiolibrary, or at http://www.newmediarights.org/guide/how_to/social_media/social_video/find_free_music_images_video_use_remix_creative_works.

[6] https://www.youtube.com/watch?v=QfgoDDh4kE0.

[7] https://support.google.com/youtube/answer/138161.

[8] Until December 2013, a fourth important benefit was that partners of MCNs were not subject to ContentID scans. Today, if you’re an Affiliate Partner of an MCN, you are no longer protected and will be subject to ContentID scans.

[9] http://www.videograndpa.com/?p=1499.

[10] http://www.iphonefaq.org/archives/973416. 

[11] https://www.youtube.com/watch?v=wJKhGl5DIDU.

[12] http://waxy.org/2012/03/youtube_bypasses_the_dmca/.

[13] Videos generally make most of their Google AdSense money within the first thirty days of an upload. And to strip that from a Gamer who was erroneously given a Flag and eventually wins the Dispute process is a huge flaw in the ContentID system that YouTube should fix by holding the money in escrow until the Dispute and Appeals process is concluded.

[14] If your Dispute is denied, consider speaking to a video game lawyer to craft an argument for your Appeal to reduce the chances of getting a Strike against your account.

[15] https://www.youtube.com/yt/copyright/counter-notification.html.

[16] http://www.youtube.com/watch?v=QfgoDDh4kE0&t=9m54s.

[17] Technically, TotalBiscuit would not even have to wait to submit a Counter-Notice before he sues the Content Manager since the Content Manager’s monetary liability begins the moment they deny an Appeal with a false Takedown Notice.

[18] http://www.youtube.com/watch?v=QAi81_uvztM&t=2m42s.