You will recall that conservative commentator Dennis Prager sued YouTube late last year because he didn't like how the site administered its "restricted mode" relating to several of his Prager University videos. The whole lawsuit was a mess to begin with, resting on Prager's claims that YouTube violated federal and state laws by silencing his speech as a conservative and falsely advertising YouTube as place for free and open speech. At the same time that YouTube asked the court to toss this canard, Prager sought a preliminary injunction to keep YouTube from operating its own site as it saw fit. In support of its petition to dismiss the suit, YouTube's Alice Wu offered the court a declaration that more or less showed every single one of Prager's claims, especially his central claim of censorship of conservatives, to be as wrong as it possibly could be.

Now, mere weeks later, the court has agreed, penning a full-throated dismissal order that essentially takes Prager's legal team to task for failing to make anything resembling a valid claim before the court. We'll start with the court's response to Prager's First Amendment claims, which he makes by stating that YouTube is somehow a legally public forum, rather than a privately run website.

In their motion to dismiss, Defendants argue that Plaintiff’s complaint should be dismissed because (1) the Communications Decency Act (“CDA”), 47 U.S.C. § 230(c), bars all of Plaintiff’s causes of action except Plaintiff’s First Amendment claim, Mot. at 8–13; (2) the First Amendment bars all of Plaintiff’s causes of action, id. at 13–15; and (3) Plaintiff’s complaint fails to sufficiently plead any causes of action. Id. at 15–24. The Court finds that Plaintiff’s complaint should be dismissed for failure to state any federal claims, and therefore declines to address Defendants’ other arguments for dismissal. The Court first addresses Plaintiff’s federal causes of action, and then addresses together Plaintiff’s state law claims.

And further, on the matter of whether YouTube is a public forum under the jurisdiction of the First Amendment.

Plaintiff does not point to any persuasive authority to support the notion that Defendants, by creating a “video-sharing website” and subsequently restricting access to certain videos that are uploaded on that website, Compl. ¶¶ 35, 41–46, have somehow engaged in one of the “very few” functions that were traditionally “exclusively reserved to the State.”

That "very few" functions precedent is backed by caselaw and the court points out that none of it applies to an entity like YouTube or to the services it provides. The court therefore says this is not a valid claim. The court then moves on to Prager's claims that YouTube violated the Lanham Act by falsely advertising the site as a platform for open and diverse speech.

Although the section of Plaintiff’s complaint dedicated to the Lanham Act does not identify any specific representations made by Defendants, see Compl. ¶¶ 115–19, Plaintiff’s opposition to Defendants’ motion to dismiss points to a handful of discrete alleged instances of false advertising by Defendants. Opp. at 24. In particular, Plaintiff identifies (1) YouTube’s suggestion that some of Plaintiff’s videos are “inappropriate”; (2) YouTube’s policies and guidelines for regulating video content; (3) YouTube’s statement that “voices matter” and that YouTube is “committed to fostering a community where everyone’s voice can be heard”; (4) YouTube’s statement on its “Official Blog” that YouTube’s “mission” is to “give people a voice” in a “place to express yourself” and in a “community where everyone’s voice can be heard,” and that YouTube is “one of the largest and most diverse collections of self-expression in history” that gives “people opportunities to share their voice and talent no matter where they are from or what their age or point of view”; and (5) Defendants’ representations in the terms of the agreements between Plaintiff and Defendants that Defendants seek to “help you grow,” “discover what works best for you,” and “giv[e] you tools, insights and best practices for using your voice and videos.” Id. (citing Compl. ¶¶ 3, 11, 14, 28, 104, 112). The Court agrees with Defendants that Plaintiff has failed to allege sufficient facts to support a Lanham Act false advertising claim based on any of these representations.

The ruling goes on to dismantle each of the specific claims Prager eventually made in opposition to YouTube's motion to dismiss. Frankly, it's a pretty thorough drubbing of whoever put together Prager's legal documents and claims.

Finally, after all of that, the court summarily dismisses Prager's claims under California state law because all of Prager's other claims have been dismissed earlier in the order. When the plaintiff in a case like this fails in his or her federal claims completely, the federal court typically refuses to consider the state claims. The court explains that's what it is doing in this order. It subsequently refuses to issue the preliminary injunction, making Prager the loser on every attempt he made before the court.

For the foregoing reasons, the Court GRANTS Defendants’ motion to dismiss Plaintiff’s federal causes of action with leave to amend, DISMISSES Plaintiff’s state law claims with leave to amend, and DENIES Plaintiff’s motion for a preliminary injunction without prejudice. Should Plaintiff elect to file an amended complaint curing the deficiencies identified herein, Plaintiff shall do so within thirty days of this Order. Failure to meet this thirty-day deadline or failure to cure the deficiencies identified herein will result in a dismissal with prejudice of the deficient claims. Plaintiff may not add new causes of action or parties without leave of the Court or stipulation of the parties pursuant to Federal Rule of Civil Procedure 15. IT IS SO ORDERED.

Now, Prager can go and write up a better lawsuit and try all of this again within 30 days if he chooses, but I wouldn't recommend it. There is no YouTube liberal conspiracy against Prager and his conservative ilk. His facts are wrong, his insinuations are not true about whether liberals or conservatives have videos more often placed in the restricted mode, and if he insists on wasting the court's time with any of this any further, then I will insist that we all agree that he's a legal dunce.

IT IS SO ORDERED.

For many, many years we've talked about how people were wrong to say that the internet "cut out middlemen" because there are still plenty of middlemen around. Instead, what was important was that the type of middlemen were changing. Specifically, we were moving from an age of gatekeepers to an age of enablers. And the difference here is profound. Gatekeepers keep out most people who want to use their platforms. Think: record labels or movie studios. Most people who wanted to become musicians just a couple of decades ago were not able to. Record labels would not sign them, and without a recording deal, your chance of making any money was just about nil. A few people were signed, a very few of those that signed would make lots of money, the rest would make a little money, and everyone who didn't sign would make basically nothing. The "curve" of how much money people made trying to become musicians was not very smooth. You had a few at the top end, and a giant cliff down to basically zero if you couldn't get past the gatekeeper.

But the internet changed that in a massive way. Anyone could start using the various internet platforms to release their content, to build an audience, and to make some money. There remain complaints from some that the amount most users make isn't very much, but that ignores that under the previous gatekeeper system, that amount was almost certainly zero for the vast majority of people who wished to make money from their creative endeavors. With various internet services -- Kickstarter, Patreon, Spotify, YouTube, etc. -- artists could at least make more than zero.

There has been some fear that yesterday's enablers would turn into tomorrow's gatekeepers. Unfortunately, one of the most disturbing aspects of what's happening with the internet these days is that more and more people seem to be pressuring these enabling services to become gatekeepers and to lock out smaller creators, out of this new fear that some people shouldn't be allowed to use these platforms to make any money at all.

Case in point: YouTube has recently announced new rules around creator monetization, which basically say you need to be pretty popular before you can become a partner who can monetize your videos.

After careful consideration and extended conversations with advertisers and creators, we’re making big changes to the process that determines which channels can run ads on YouTube. Previously, channels had to reach 10,000 total views to be eligible for the YouTube Partner Program (YPP). It’s been clear over the last few months that we need the right requirements and better signals to identify the channels that have earned the right to run ads. Instead of basing acceptance purely on views, we want to take channel size, audience engagement, and creator behavior into consideration to determine eligibility for ads.

That’s why starting today, new channels will need to have 1,000 subscribers and 4,000 hours of watch time within the past 12 months to be eligible for ads. We will begin enforcing these new requirements for existing channels in YPP beginning February 20th, 2018.

The company flat out admits that this is to stop those who somehow don't deserve to make money from getting paid, and also to appease advertisers:

There’s no denying 2017 was a difficult year, with several issues affecting our community and our advertising partners. We are passionate about protecting our users, advertisers and creators and making sure YouTube is not a place that can be co-opted by bad actors. While we took several steps last year to protect advertisers from inappropriate content, we know we need to do more to ensure that their ads run alongside content that reflects their values. As we mentioned in December, we needed a fresh approach to advertising on YouTube.

That "December" link was a YouTube post responding to the widespread controversy over YouTube star Logan Paul's immature and disrespectful videos in Japan and in particular, showing (and basically laughing at) the body of someone who had committed suicide in Aokigahara. And, indeed, many see these new changes to YouTube monetization as a direct response to the Logan Paul debacle -- even though these rules wouldn't have made a difference for Paul. Indeed, Paul's immature antics were a large part of what made him a YouTube star along with his brother (who some argue is even more immature -- and perhaps even more popular).

So, really, these changes seem to be an attempt to appease advertisers rather than YouTubers (who don't seem very happy about this). But, in doing so, YouTube takes a pretty big step from that enabler category into the gatekeeper cateogry. It's not all the way to the extreme of the record labels, of course. There are clear, stated, quantifiable metrics here. But it does move that "cliff" in the monetization scheme, such that those who are just starting out, or who just want to make a few extra dollars, won't be doing so via YouTube.

YouTube, obviously, is free to make that choice. It needs to appease increasingly angry advertisers who don't want their ads showing up in "controversial" places. So that's understandable. But, it's also... a bit sad. The power and excitement many of us felt for what the internet enabled was the fact that it allowed people to make use of these platforms to create, distribute, promote, communicate and monetize without any real gatekeepers. And that's changing.

The implications of YouTube's ContentID system in an era of user-generated content can sometimes be quite muddy. It is widely known that ContentID is open to abuse, and that it is indeed abused on the regular. However, too many stories about that abuse play far in the margins of what the average person could look at and recognize as a very real problem.

This is not one of those stories.

Instead, the story of how one music professor's upload to YouTube of 10 hours of pure white noise was flagged five times for copyright infringement (FIVE TIMES!) operates as though someone somewhere is trying to bring a reductio ad absurdum argument into physicality.

That’s what’s happened to Australia-based music technologist Sebastian Tomczak, who uploaded a completely non-infringing work to YouTube and now faces five separate copyright complaints. One of Tomczak videos was a masterpiece entitled “10 Hours of Low Level White Noise” which features – wait for it – ten hours of low-level white noise.

“The white noise video was part of a number of videos I put online at the time. I was interested in listening to continuous sounds of various types, and how our perception of these kinds of sounds and our attention changes over longer periods – e.g. distracted, focused, sleeping, waking, working etc,” Tomczak says.

I could embed the video, which you can find on YouTube here, but I won't bother because the video is exactly as advertised: ten straight hours of white noise. Tomczak composed this white noise himself, in all of its beautifully non-creative glory, making the copyright claims all the more absurd. Remember, copyright only applies to new creative works. White noise would not qualify. Now, the video is still available despite the copyright claims because the four different entities filing these five complaints against it -- one, incredibly, filed twice for two different "compositions"-- chose to simply monetize Tomczak's video instead of having it taken down.

As seen from the image below, posted by Tomczak to his Twitter account, the five complaints came from four copyright holders, with one feeling the need to file two separate complaints while citing two different works.

As you will see, several of the complaints came from representatives of folks creating white noise compositions as sleep therapy or for other therapeutic effect. This, it should hardly need to be noted, does not somehow make Tomczak's independent composition that is equally devoid of creative output somehow infringing. White noise is white noise for a reason, after all. This isn't even a case of what to do about copyright in the event of independent creation of the same creative works. Judge Learned Hand's famous line on independent creation notes: "[I]f by some magic a man who had never known it were to compose anew Keats's 'Ode on a Grecian Urn,' he would be an 'author,' and if he copyrighted it, others might not copy that poem, though they might of course copy Keats's." But white noise is no "Ode on a Grecian Urn." There simply is no copyright here at all.

Still, the story is immensely useful in demonstrating just how vulnerable to abuse ContentID and copyright claiming systems can be on the internet. The original claim against this video dates back several years, which means that for some time others have been profiting from Tomczak's white noise, with nothing in the way of human intervention on YouTube's end that would take one look at this whole thing and proclaim the claims ridiculous. In this case, this all happened to someone, Tomczak, who seems to largely not care about the claims beyond being mildly amused by them.

Tomczak says that to him, automated copyright claims are largely an annoyance and if he was making enough money from YouTube, the system would be detrimental in the long run. He feels it’s something that YouTube should adjust, to ensure that false claims aren’t filed against uploads like his.

But that lax attitude doesn't change the absurdity of a reality in which ten hours of white noise can be flagged by four different outsiders as infringing, all the while the copyright industries scream that Google and YouTube aren't doing enough to clamp down on copyright infringement.

There's an interesting article on Medium by James Bridle that's generating plenty of discussion at the moment. It has the title "Something is wrong on the internet", which is certainly true. Specifically, what the article is concerned about is the following:

Someone or something or some combination of people and things is using YouTube to systematically frighten, traumatise, and abuse children, automatically and at scale, and it forces me to question my own beliefs about the internet, at every level.

I recommend reading the article so that you can decide whether it is a perspicacious analysis of what's wrong with the Internet today, or merely another of the hyperbolic "the Internet is corrupting innocent children" screeds that come along from time to time. As an alternative -- or in addition -- you might want to read this somewhat more measured piece from the New York Times, which raises many similar points:

the [YouTube Kids] app contains dark corners, too, as videos that are disturbing for children slip past its filters, either by mistake or because bad actors have found ways to fool the YouTube Kids algorithms.

In recent months, parents like Ms. Burns have complained that their children have been shown videos with well-known characters in violent or lewd situations and other clips with disturbing imagery, sometimes set to nursery rhymes.

The piece on Medium explores a particular class of YouTube Kids videos that share certain characteristics. They have bizarre, keyword-strewn titles like "Bad Baby with Tantrum and Crying for Lollipops Little Babies Learn Colors Finger Family Song 2 " or "Angry Baby vs Spiderman vs Frozen Elsa BABY DROWNING w/ Maleficent Car Pink Spidergirl Superhero IRL". They have massive numbers of views: 110 million for "Bad Baby" and 75 million for "Angry Baby". In total, there seem to be thousands of them with similar, strange titles, and similar, disturbing content, which collectively are racking up billions of views.

As Bridle rightly notes, the sheer scale and downright oddness of the videos suggests that some are being generated, at least in part, by automated algorithms that churn out increasingly-deranged variations on themes that are already popular on the YouTube Kids channel. The aim is to garner as many views as possible, and to get children to watch yet more of the many similar videos. More views means more revenue from advertising: alongside the video, before it, or even in it -- some feature blatant product placement. Young children are the perfect audience for this kind of material: they are inexperienced, and therefore are less likely to dismiss episodes as poor quality; they are curious, and so will probably watch closely to see what happens, no matter how absurd and vacuous the storyline; and they probably don't use ad blockers. As Bridle says in his Medium post:

right now, right here, YouTube and Google are complicit in that system [of psychological abuse]. The architecture they have built to extract the maximum revenue from online video is being hacked by persons unknown to abuse children, perhaps not even deliberately, but at a massive scale.

That may be overstating it, but it is certainly true that YouTube's "revenue architecture", based on how many views videos achieve, tends to produce a race to the bottom in terms of quality, and a shift to automated production of endless variations on a popular themes -- both with the aim of maximizing the audience.

YouTube has just announced that it will try to restrict access by young children to this type of video, a move that it rather improbably claims has nothing to do with the recent articles. But given the potential harm that inappropriate material could produce when viewed by young children, there's a strong argument that Google should apply other criteria in order to de-emphasize such offerings. A possible approach would be to allow adults to rate the material their children see, using a mechanism separate from the current "like" and "dislike". Google could then use adverse parental ratings to scale back payments it makes to channels, while good ratings from adults would cause income to be boosted. Parents would need to sign up before rating material, but that's unlikely to be a significant barrier to participation for those who care about what their children watch.

Although there is always a risk of such systems being gamed, the sheer scale of the audience involved -- millions of views for a video -- makes it much harder than for material that has smaller reach, where bogus votes skew results more easily. Google would anyway need to develop systems that can detect attempts to use large-scale bots to boost ratings. The fact that the company has become quite adept at spotting and blocking spam at scale on Gmail suggests it could create such a system if there were enough pressure from parents to do so.

If Google adopted such a reward system, Darwinian dynamics are likely to lead to better-quality content for children, where "better" is defined by the broad consensus of what adults want their children to see. Other ways that Google could encourage such content to be produced would be to allow parents to boost further what they regard as valuable content with one-off donations or regular subscriptions. Techdirt readers can doubtless come up with other ways of providing incentives to YouTube channels to move away from the automated and often disturbing material many are increasingly filled with.

Follow me @glynmoody on Twitter or identi.ca, and +glynmoody on Google+

Dennis Prager is the rather affable conservative radio host and commentator whose chief skill appears to be in presenting laughably simple answers to immeasurably complex questions. Whatever your politics, it should be fairly clear that he's of a certain mold that tends to see political opponent boogeymen around every corner, hiding under his bed, and defiling his breakfast cereal. Those types exist on both sides of the aisle, of course, but it's important to understand Prager's paranoia when digesting his lawsuit against YouTube over how the site is filtering the videos his organization creates.

PragerU was founded in 2011 by Dennis Prager, a prominent conservative writer and radio talk show host. The organization is a nonprofit that espouses conservative viewpoints on various issues by means of short, animated videos, which it posts on its own website, as well as its YouTube channel.

From the filing itself:

Google/YouTube have represented that their platforms and services are intended to effectuate the exercise free speech among the public. As applied to PragerU, Google/YouTube use their restricted mode filtering not to protect younger or sensitive viewers from 'inappropriate' video content, but as a political gag mechanism to silence PragerU.

Let's get the easy part of this out of the way. Section 230 of the Communications Decency Act clearly outlines that YouTube is not to be punished for its attempt to filter content. The most relevant section is:

(c)Protection for “Good Samaritan” blocking and screening of offensive material

(1)Treatment of publisher or speaker: No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.

(2)Civil liabilityNo provider or user of an interactive computer service shall be held liable on account of—

(A)any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected; or

(B) any action taken to enable or make available to information content providers or others the technical means to restrict access to material described in paragraph (1).

That pretty clearly states that service providers can filter as they please and are not open to retribution from those using their platforms who don't care for how the filtering is being done. Making the First Amendment claims, in light of that, is a strategy likely without much purchase.

But the filing is even more frustrating than that. In typical Prager fashion, the case against YouTube is laid out as one of a liberal conspiracy against a conservative non-profit. Reading through most of the filing, you would be forgiven for thinking that YouTube had an army of folks manning computers manually censoring nothing but conservative speech, almost certainly with copies of Karl Marx's greatest hits on the desk next to them. But then the filing notes, apparently as evidence for its claims:

PragerU is not the first video blogger or “vlogger” to be discriminated against by Google/YouTube because of the speaker’s perceived identity. On March 19, 2017, Google/YouTube publicly admitted that they improperly censored videos using their restricted mode filtering that were posted or produced by members of the LGBTQ community based on the identity and orientation of the speaker rather than the content of the video. In response to complaints from the LGBTQ community and other civil rights critics, Google/YouTube removed all restricted filtering on videos posted or produced by LGBTQ members and groups, and changed their policy, filtering algorithm, and manual review policies to ensure that videos posted by LGBTQ vloggers were not being censored solely because of the identity of the speaker.

While Prager makes much of how YouTube lifted the restrictions on the LGBTQ content, what he's actually demonstrating is the truth: YouTube sucks at filtering its content. While Prager has no First Amendment right to YouTube's soapbox, his own filing has stumbled upon the real problem and the likely reason that YouTube has been flagging some of his videos: filtering correctly is hard, if not impossible. Of course it is, particularly for YouTube, which deals with hours of content uploaded every minute. Who would expect any filtering mechanism put in place to not have collateral damage?

The truth is likely that the YouTube folks responding to complaints about filter-mishaps are quite busy because the site isn't very good at filtering content. And, yes, it sucks that Prager's content has these filtering restrictions put on them. Whatever you think of the man, his videos are not obscene.

But First Amendment violations and the output of a great liberal conspiracy they are not.

We've made this point over and over again: if you give people the power to force down someone else's content, it will be abused. We see this most clearly in things like DMCA takedown notices, which are rife with abuse -- either through automated takedowns or just by people who want certain things to disappear. But here's a variation we haven't seen quite as much: DMCA abuse as extortion. This story involves musician/composer Keitaro Ujile who variously goes by Ujico* and Snail's House and who has a pretty big following. As an aside, he describes his electronic music as "Happy Music" and, damn, is it ever. I've been listening to it while writing this post, and you can too at Soundcloud, Bandcamp or... YouTube.

It's that last one that this story is focused on. Because a few of his songs on YouTube currently look something like this right now:

Yup, so someone named Lazy Channel is claiming infringement on three Ujile videos. "Lazy Channel," whoever that is, has his own YouTube page, and it appears to have a bunch of Vietnamese songs on it. It doesn't have many followers (350 subscribers). I'm not linking to it, because no need to give that guy any extra attention, because here's the rather incredible message that "Lazy Channel" sent to Ujile soon after his videos got taken down:

If you somehow can't read that, it says:

Hey ! How're you doing ! As you know 2 videos on your channel has disappear !
In the case you don't know that strike can't retract by youtube if no because of me !
Only me cant retract that strike ! So if you interesting I have a request for you ! Be ready and if you don't ! Good by all social media ! Hope you will reply soon :)

Kinds Regards :D

So, yeah. That's Lazy Channel more or less admitting to attempted extortion. Ujile has counternoticed the claims, but in the meantime has disabled the videos in question in Vietnam.

Seeing all of this so blatantly put forth suggests that this kind of thing is a lot more common than we realize -- but that's almost to be expected when we give anyone the power to takedown videos by claiming copyright infringement -- and setting things up so that the hosting platforms will face massive liability for failing to comply (and comply quickly, with little investigation). In watching people respond to this news, it's interesting to see some people say that nothing should ever get taken down without an investigation -- which sounds like a good idea, but difficult under the law as it stands. And, of course, many, many voices are crying out right now to make these so-called intermediary liability protections even weaker, which will only enable even more such takedowns and extortion.

This is why we keep talking about the importance of things like the DMCA's safe harbors or platform immunity under CDA 230. CDA 230, in particular, helps prevent these kinds of scams (outside the copyright context, which isn't covered by CDA 230), and it's yet another reason why we're so concerned about SESTA. While that bill claims to be targeting platforms that are profiting off of sex trafficking, it will open up a massive power for those who wish to abuse the system, demanding content get taken down at the risk of criminal penalties, and even if the demand is entirely bogus, the risk and liability may be so large that many platforms will just comply.

So, yes, this situation with Ujile is unfortunate and must be a real nuisance for him -- especially since too many strikes will get his entire YouTube account with its 65,000 subscribers shut down (another "feature" of the DMCA that the legacy industries demanded be included in the law, and which they've been seeking to expand via lawsuits lately). But it's also an unfortunate example of how putting liability on platforms enables and encourages this kind of extortion and (importantly) harms actual creators like Ujile. To hear the RIAA/MPAAs of the world, we need to weaken protections for platforms to help artists. Yet, here is a clear example where it's enabling real harm for an actual artist. So where is the RIAA and those others speaking up for Ujile and how unfortunate it is that he has to go through this experience now?

If you haven't heard, something slightly strange happened in the tech world a few days ago. Suddenly, and seemingly without warning, Google decided to break YouTube for the Amazon Echo Show product. The Show is the Echo product that comes with a small display screen where you can... you know... watch videos. YouTube used to work on the product, and was even showcased by Amazon when it demonstrated the product at tech shows, but now all you get is Alexa's monotone voice letting you know "Currently, Google is not supporting YouTube on Echo Show."

Exactly why this is happening is something of an open question, since nobody at either company is offering up any details. Amazon's response to the press puts the onus for this flatly on Google, but doesn't detail why it happened.

Google made a change today at around 3 pm. YouTube used to be available to our shared customers on Echo Show. As of this afternoon, Google has chosen to no longer make YouTube available on Echo Show, without explanation and without notification to customers. There is no technical reason for that decision, which is disappointing and hurts both of our customers.

The two primary theories center on Google wanting more control of how the Echo handles its videos or that Google is basically pitching a fit over it and Amazon's long-running competition. For the theory about control, there is speculation that Google wants the Echo to handle YouTube videos in ways it currently doesn't, including playing subsequent videos and offering subscription services.

Reading between the lines, I'd guess Google very much wants features that it thinks are essential for YouTube's future growth included, stuff like subscriptions, next video recommendations, autoplay, and so on. But who knows! Only the negotiators at the table.

Google has a history of being particular about how YouTube gets displayed on apps made by other companies, citing the terms of service on its API. Way back in 2013, it got in a tiff with Microsoft over the YouTube app on Windows Phone, blocking the app and leading Microsoft to just revert to a web player for YouTube.

Let's call this what it actually is: Google has occasionally been hamfisted and stupid on how it handles YouTube on third party devices chiefly in order to exert a greater level of control it rarely actually achieves. In some ways this has all the hallmarks of a Sony-style way of doing business, which is an odd look for Google. The first thing I thought of when reading this story was Playstation 4's Remote Play feature, available in the smartphone and tablet markets only on Sony phones and tablets, which have sold about as well as a pig roast at a vegan convention. Sony too made all the same noises about wanting to control the experience to make sure customers enjoyed Remote Play, but mostly ended up simply not having those customers at all. For Google, this is not a flattering comparison.

But if this is just more shots fired in a corporate tiff, it likely has to do with Amazon's refusal to offer Google's products on its site.

If nothing else, it's clear that Google and Amazon are not doing a very good job working out that deal. (And hey look, the Google Chromecast still isn't officially available to buy on Amazon.)

If that is what this is, then it's even more stupid. Cutting out potential eyeballs for YouTube in order to slap around a competitor is about as misguided as it gets. After all, people have already bought these Echo Shows, and it's going to be tough to frame this in terms of PR as anything beyond a giant corporation throwing a tantrum to the detriment of the public.

And so we'll wait to see if this whole nonsense gets settled somehow. Given how long Amazon and Google have locked horns on other issues, some still ongoing, I won't be holding my breath.

Warner/Chappell's DMCA takedown arm is so damn proactive it can kill YouTube videos containing as little as 0% of its IP. A clip of Star Wars posted to YouTube sans overbearing John Williams soundtrack was targeted by Warner/Chappell, the owner of the rights to John Williams' Star Wars compositions.

Here's Jeremy Hsu of Wired with more details.

Fans of the YouTube channel Auralnauts, which posted the doctored Star Wars scene in 2014 as a tongue-in-cheek tribute to the emotional power of Williams’ score, loved it for that weirdness. But another set of viewers—those with the rights to the movie’s soundtrack—tuned in to these sounds of silence and heard something else: the ka-ching of a cash register.

That’s what the Auralnauts discovered earlier this summer when they received word that Warner/Chappell—the global music publishing arm of Warner Music Group—had filed a monetization claim on their “Star Wars Minus Williams” video through YouTube's Content ID System. That’s right: The copyright holder was claiming ownership of something that wasn’t there.

There are several theories to what went wrong here, although Warner engaging in kneejerk copyright claims with zero pre-claim vetting doesn't appear to be the frontrunner. First, a clip of music sounding a lot like a John Williams piece opens the video. But the piece is written and composed by Gustav Holt -- and is "copyright-free" according to Wired. The studio behind Star Wars had no objection to the clip, so it's not related to the visual content. That leaves Warner, possibly motivated by a faulty trigger in its Content ID auto-scanning. There's also a four-second loop of Williams' score appended to the end of the video, which may have pulled the Content ID trigger as well. But even if so, there are still problems with Warner and YouTube's Content ID system because the wrong piece of music was named in Warner's copyright claim.

[T]he Warner/Chappell claim incorrectly identified the “Star Wars Main Title” track as being present in the Auralnauts video. The single brief Williams excerpt used by the Auralnauts actually comes from a track titled “The Throne Room and End Title.”

Whatever the case is, the claim was obviously bogus. But it shows how fragile an ecosystem YouTube can be for those using it as a revenue stream. Even when wrong about pretty much everything, Warner was still able to siphon this video's profits from the Auralnauts. The Auralnauts challenged Warner -- which the article points out is something that happens in less than 1% of content claims -- but it didn't matter. In fact, it's unlikely anyone at Warner even bothered to read the challenge before issuing a rejection.

That leaves the Auralnauts in the difficult position of risking their entire channel to continue disputing Warner's obviously erroneous copyright claim.

[I]f a copyright claimant such as Warner/Chappell does not back down from its claim, the video is likely to get taken down from YouTube entirely—and in that event, the Auralnauts would also be penalized by the platform as a copyright scofflaw and barred from some privileges, such as linking to their own store. Three such takedowns and YouTube will delete your channel.

Despite the constant complaints about YouTube being some sort of infringement wonderland, the odds are stacked almost completely in favor of legacy industry copyright holders. Nothing happens to Warner if it continues to file bogus claims. But those targeted by claims are expected to just let the bogus claims happen because challenging claims is a great way to damage your own YouTube account.

We're constantly hearing about bogus takedowns thanks to bogus copyright claims, some more amusing than others. Last week we had Ariana Grande's benefit concert in Manchester getting blocked by ContentID, despite being on her own channel. And now (via Sarah Jeong) we've got the band the Dandy Warhols rightfully complaining on Twitter that the video for the single "You Are Killing Me" off of their 2016 album has been blocked on YouTube via a copyright claim from Universal Music Group. Here's their tweet:

And here's what I see on YouTube as I write this post (one hopes that sometime soon the video will be returned):

In case you're wondering, no, the Dandy Warhols are not on Universal Music. They're on an indie label, Dine Alone Records (hence the reference in the tweet). The band used to be on Capitol Records, which is now a part of Universal, but left Capitol back in 2008, when it was still a part of EMI (before Universal bought EMI). And, either way, as far as I can tell, the song "You Are Killing Me" is a new song from 2016, which Universal Music would have no legitimate copyright claim over.

Yes, this is obviously some sort of mistake, and I'm sure that eventually (if it hasn't already happened by the time you read this), YouTube will put the video back up. It probably won't happen, but maybe Universal Music and/or YouTube will apologize (wouldn't that be something?). But everyone else will just shrug their shoulders and move on. But this is a real problem, and should be a very big concern. That's because right now, around the world, lobbyists and friends of Universal Music and its friends are pushing to make their own powers to not just take down videos and audio much, much stronger, but they also want the power to block any re-uploads once stuff is taken down. Thus, if Universal Music (or anyone else) decided to (say) completely silence an independent band, it could do so, across multiple platforms for quite some time, potentially causing all sorts of problems, without any judicial review. That should be seen as a major problem, and should be a reason why those laws are not expanded.

Almost four years after we noted that the fight between German collection society GEMA and YouTube had gone on way too long, it looks like it's finally been settled. If you don't know, way back when, GEMA, which is effectively a mandatory copyright royalty collector in Germany, demanded insane rates for any music streaming on YouTube. Apparently, it initially argued that a stream on YouTube was no different than a purchase on iTunes, and thus it should be paid the same rate. In 2009, it asked for 17 cents per video view (which was a decrease from the 37.5 cents per stream it had asked for earlier). 17 cents. Anyone who knows anything about how the internet works and how advertising works knows that's insane. YouTube was paying out a decent chunk of its advertising revenue to other collection societies at a fraction of a penny per view, which is inline with the potential ad revenue.

This created a huge mess in Germany, where tons of YouTube views were blocked -- even when the creators have properly licensed the music. GEMA just threw up a big "no." This is why, when I was in Berlin a few years ago, talking with musicians, one of them showed me how his band had an "official" website that GEMA knew about and an unofficial secret "real" website, where his band could actually distribute its own music, without GEMA interfering. Think about that for a second. GEMA was regularly blocking musicians from doing what they wanted with music so it could try to shake down YouTube/Google for ransom.

And it went on until now. Six or seven years ago, Germany was the only major country where the local collection society could not come to an agreement with YouTube and it took until now to finally sort this out. There's no word on the final amount, though I imagine it will come out at some point. GEMA is crowing about the fact that this will cover payments back to 2009, though, since so many videos on YouTube in Germany were blocked from that point onward, think of all the views and all the money that GEMA deliberately blocked users from ever receiving. Either way, the common practice of seeing that a video is "not available" in Germany is now mostly over. There are apparently some videos, for music not represented by GEMA that will remain blocked, but this is a big step forward.