Open Letter to YouTube/Google from an Active “You-Tuber”

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Published on: April 9, 2010

Introductory Note to this Blog Post: Here is the content of the open letter that I just wrote and sent to YouTube support. I hope that they forward it to the appropriate entity at their company to have a closer look and hopefully also act on it appropriately.

The general issue is Copyright Laws that they cannot change, but the way how they deal with the situations that are a consequence of IMO insufficient laws in an environment they were not designed for and weren’t even envisioned when those laws were put in place to begin with.

The Letter:

This letter was written in response to the YouTube Account Inquiry #572435220 regarding the termination of the YouTube account “CirqueDuSoleilGuruon December 18, 2009.

For whatever reason did your email response from January 6, 2010 to my web inquiry about the suspension of my YouTube account “CirqueDuSoleilGuru” on December 18, 2010 show up in my Gmail inbox now, several months later. I was looking for it back in January and did not find any of it. This is weird, but a separate issue.

I am pretty sure that YouTube accounts and their content that were suspended 4+ months ago cannot be reactivated and recovered anyway, so there is no urgency to the situation anymore and my comments can be classified as detailed user feedback, suggestions and complaints from a long time and very active YouTube user who operates multiple personal and professional YouTube accounts for different reasons and purposes. My initial response and not so “nice” blog post about the termination of my account can be found at this URL. It uses stronger words, but might be worth thinking about nevertheless. Several of my former 2000 channel subscribers contacted me via other means to inquire about the unexpected termination of my account that I felt the need to publish a statement myself publicly.

Background Story

The YouTube account “CirqueDuSoleilGuru” was my personal non-commercial outlet to promote and appreciate the Canadian entertainment company “Cirque du Soleil”, inform other people about activities and events that involve the Circus, review related merchandise and comment on various issues that concern the company and are of my personal interest and may also interest other fans of the Circus like me.

In addition to the YouTube channel, I maintained content in written format related to the same subject on my personal web site. The main entry page to this content would be my “Cirque du Soleil Primer Article” at http://www.roysac.com/cirque and its several dozen subsequent pages.

I have no commercial relationship with Cirque du Soleil, although my activities online were noticed and appreciated by various employees of the company, including artists, but also some of their marketing professionals. They notified me about events and other things that might of my interest without any obligations for me to follow up on that and without offering any financial reward for my efforts. However, I met their Las Vegas marketing executive in Las Vegas in person once and was given a free ticket to one of their shows that I have already seen. This was more a sign of being grateful for my support and not an attempt to pay me off or bribe me.

My YouTube channel featured over 200 videos, which could be categorized as follows.

  1. Teaser and Promotional Material to Cirque du Soleil resident and touring shows as well as related merchandise, such as show recordings on DVD and similar products.
  2. Behind the scene, Making of, Meet the artist kind of mini documentaries that could also be considered “promotional” in nature, although the main target audience would probably be Cirque fans like me, who are also interested in the things that go beyond their elaborate shows.
  3. News footage about special activities that involve Cirque du Soleil in general. This can be a multitude of things, from Guinness Book of World Records attempts to Involvements in their Charity work in organizations such as the One Drop Foundation.
  4. Original content that I created myself entirely that include product reviews and also “news type” of content or personal opinions about non-product related things.
  5. Indirectly related content about Circus arts at large and also content that fall under the categories 1-3 that involve the famous and now former director of Cirque du Soleil, “Franco Dragonè”, who owns today his own company and works independent from Cirque du Soleil, but in the same field.
  6. This is probably the category that is the most problematic one and with only a few exceptions all videos that were removed my YouTube in the past belonged to this one. Appearances and special performances by Cirque du Soleil outside their own productions. This includes promotional appearances on national television or special mini performances to openings of special events (such as Oscars, Grammy’s, and Olympic Games etc.). I have a special page that concerns just such performances, which is part of my Primer article series, titled “Cirque du Soleil Special Events and Performances

I also like to add, that many but not all of the material published on my YouTube channel was edited by me prior its publication to the YouTube web site and not just a simple reproduction of existing material from other sources. Several hundreds of hours of actual work went into the 200+ videos that I published to this Channel.

Although content in the categories 1-2 is also “copyright protected” by law, so is it much less likely that the copyright owner would make a complaint about its publication and distribution free of charge, since it was produced for this purpose in the first place. Exception might be the use in an environment where the copyright owner does not want to be associated with and feels it to be inappropriate, but this is obviously not the case in my example. The owner had knowledge of it and actually appreciated my distribution and publication.

Regarding the content that falls into category 6 I have to say that I was and are aware that the content that I used was not free, but I also did not and do not feel that I was really violating any laws or caused damage or loss the owner of the intellectual property that I used for it. Now I am not a copyright lawyer myself, but after doing some self-study online, during conferences in educational sessions and personal talks to copyright lawyers I learned that the fair-use clause that I think applies to this content is not that clear and not objective applicable as I would wish it would. I only take snippets, typically 1-5 minutes out of 1-3 or more hours of copyrighted material that is only about the Cirque and virtually never about the setting and surrounding where this appearance takes place, which is however mentioned in detail as much as I know as future reference and for historic archiving purposes. It is of educational and almost news like character, where the “news” aspect might be the one that could be debated the most.

Penalty 1 and 3 are perfect examples of this. I am not a regular viewer of TV talk shows like Jay Leno’s “Tonight Show” on NBC or “Chelsea Lately”, which I never even had heard of before I learned about Cirques special appearance on it.

Penalty 1:
“Cirque du Soleil – Zumanity @ Jay Leno” formerly at http://www.youtube.com/watch?v=2YVO0FD0RpQ
Removed due to a copyright claim by NBC Universal on 07/09/2008

Penalty 2:
“Cirque du Soleil – KA 1/9″ formerly at http://www.youtube.com/watch?v=qzisBtyhCt4
Removed due to a copyright claim by Cirque du Soleil on 06/25/2009

Note: I left this video out of this discussion, because there is a much bigger story to it, which would be too much to bring into this general debate.

Penalty 3:
“Alan Silva from Cirque du Soleil’s Zumanity at Chelsea Lately” formerly at http://www.youtube.com/watch?v=G3BMgsPwjdg
Removed due to a copyright claim by Comcast Entertainment Group on 12/18/2009

Since the laws is vague in this respect and my interest in this non-commercial, I did not and won’t file any counter suit if the copyright owner files a complaint with YouTube and is impossible to communicate with as an individual without commercial interests. I tend to make some attempts to contact the company who filed the complaint to sort out things using common sense and reasoning and come to a solution that serves our mutual interests, but that is unfortunately only accomplished successfully in very few of the cases where it happens.

I don’t mind to serve additional advertisement that benefits the owner or even change and extend the content description to include additional related information of commercial nature, including links to a target web site operated by the owner or an e-commerce site where related products can be purchased by viewers of the video.

This communication issue is something where YouTube/Google could provide some help.

YouTube would and should only act as a neutral relay of information without getting directly involved or extend on its legal responsibilities and risks. I think it would even lower the risks of YouTube, because it would show that the company is actively involved in solving conflicts that are located in a legal gray area and benefit both conflicting parties, save everybody involved time, money, bad blood and headaches and maybe even aids the formation of new partnerships along the way as a bonus.

YouTube does some of it already, but it is only a one-way street at the moment.

It offers to owners of the intellectual property already today the option to include additional ads and/or revenue share for existing ads served on Google property along with the content instead of taking it down completely, if the owner decides to do so. Examples are text ads in the format of video annotations with a link to buy the CD of the audio that is currently being heard by the viewer or extra ad units on the video detail page that promote other and maybe even related content of the copyright owner.

The Issue Today

Publishers are currently not offered anything to serve their interests and support their rights. They are treated, sorry my strong words, like dirt and 2nd class people, whose time and energy is discarded as worthless and negligible, at the mercy of Google and large media companies to be erased without any warning at any time.

In the case of a complaint a publisher gets only very little choices and options, basically reduced to only one, which is to take legal actions themselves and better get a lawyer involved right away before anything might be done to do anything for them. Since the majority of publishers on YouTube are individuals who publish without commercial interests, this is actually very unlikely to be done. What everybody gets are rightfully first confused and then upset or even angry individuals that potentially harm not just Google’s business in the future but potentially also the business of copyright owner. All of this only because of something that probably does not harm anybody involved and most likely benefit everybody involved and may only requires some fine-tuning to make every party completely happy.

Suggested Solution

What YouTube could provide for example is the ability for a publisher to respond to a complaint via a web form, where he is able to state that he believes that the use of the copyrighted content does qualify to be exempted by a fair-use clause, which one and why. This would be non-formal and non-legally binding, entirely separated from any formal legal action the publisher could take. The publisher should also be enabled to make offers to the property owner, like the ones that I mentioned already earlier. Some of which could even be automated entirely by YouTube, such as the activation of additional Ad units on the video page or a supplemental video description block that can be maintained by the copyright owner.

Since the publisher needs to explain why he thinks fair-use might apply in his case, bogus claims could be filtered out fairly easily in most of the cases. The owner will also be forced to have a second look at the case and maybe learns about a previously missed opportunity at the same time that could be of even more benefit for him in the future. The number of actual law suits should in my opinion decrease as a consequence as well and the owner of the copyright also gets to know of the chance that a legal suit might back-fire and creates unnecessary cost for him and might even harms his business.

Google on the other hand adds another level of refinement to its system to better be able to distinguish between publishers who are in essence legitimate, but acting unfortunately in somewhat legal gray area und blatant violators of existing copyright laws that probably deserve the harsh and strict punishment exercised by YouTube in both cases today.

Along the way, you could also implement something where somebody who submits a complaint via your web complaint form gets the ability to retract this complaint, if things got resolved without any legal actions taken by any party, including the publisher. I still have a “Strike” in a different YouTube account that I manage where things got resolved directly between me and the entity who filed the complaint, even though that entity assured me that they tried to get a hold of somebody at YouTube to retract the previously filed complained that it will be removed from my account as a consequence.

See my case as an example.

A channel where over 200 videos were published over a period of 1 ½ years, with over 3.2 million views of those videos with over 5000 ratings and over 3000 user comments. The channel itself also had over 2000 subscribers. All wiped out from the face of this world, because of 3 cases where YouTube has no idea if there was potentially a law violated at all or if the publisher simply did not made the choice to engage in costly and time-consuming legal action, because of the lack of common sense to pursue this route and only option available to him at the moment.

Conclusion

Asking for 5 minutes of the alleged copyright owner’s time, who claims to own the rights and felt those rights to be violated to have a second look and option to resolve the situation in a civilized manner should not be too much in return for the preservation of hundreds of hours of time, unknown amounts of money, energy and love by the publishers and also the time spent by active members of the YouTube community who rate content, make comments, answer questions and help YouTube to rid itself of spam and illegal content.

Google cannot change current laws, which are in the case of copyright laws unfortunately ill-suited for this new environment and situation, which was not envisioned when the laws where put in place as they are to this date (which is my own personal opinion and subjective). There is work needed elsewhere. However, Google could make some more efforts to easy the tensions and reduce conflicts that result from these short comings and are also a result of their commercial services in form of a social video sharing web site called YouTube that pioneered the ways how audio-visual content of commercial as well as non-commercial nature is being consumed by millions of people around the world today and in the future.

I hope that my comments and recommendations make sense and be considered useful and realistic as I believe them to be and will make the life of everybody involved much less painful than it is today, if they should be followed through with and become implemented in the near future.

Regards,

Carsten Cumbrowski

Fresno, CA on April 8, 2010

Note: This letter will also be published publicly on my personal blog at RoySAC.com/blog.

That’s it. I hope I made sense. Comments and Feedback (also anonymously) are not only allowed but also encouraged, via the comment-form further down below.

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