I'm saying that's how it is.

So. How do we fix it?

What's up, world? It's your boy Tom—

Oh, come on!

This video is sponsored by CuriosityStream,

and by this: my new Nebula streaming series

that you can watch for free when you join.

More on that later.

Sellout!

What's up world? It's your boy, TomReacts.

Let's see what this prat has to say.

A few disclaimers before we start:

While this video has been proofed and fact-checked by a team of legal experts,

I am not a lawyer, and this is not a substitute for legal advice.

Yeah, I can tell that, mate.

I'm also talking a lot about YouTube and Google, companies that I benefit from enormously.

Google even sponsored an entire series on this channel last year.

Shill!

I'm friends with a few YouTube employees.

'Course you are.

So, while all the words here are my own, YouTube don't even know I'm making this,

you should know that if you're one of the outliers

who's been screwed over by YouTube's copyright system…

Yeah, you will probably have a different view of parts of this.

Although I hope you'll still agree with my conclusion.

With all that said, enjoy the show.

Get on with it!

Not you.

I realise saying "YouTube's Copyright System Isn't Broken"

is a controversial claim to make,

when every week there seems to be a new headline

about how a YouTube creator is being screwed over

by false copyright claims, or mistaken identity, or deliberate copyright abuse.

I'm not saying that the system is perfect.

It's far from perfect, and I'll talk about that too.

But I don't think it's fundamentally broken.

In May 2019, a YouTube Minecraft player called Oli

had hundreds of his videos claimed by music label Warner Chappell

using YouTube's Content ID system.

His post about it made a lot of people righteously angry.

He'd got permission to use a track from an independent composer as his intro music,

and now a big corporation was claiming every video and taking all his revenue!

Popular websites went so far as to claim that Oli was the victim of outright theft,

since 25% of his revenues were directed to Warner Chappell.

But the follow-up wasn't seen by nearly as many people:

those claims were entirely legitimate.

Yes, Oli got permission to use that music from its composer,

but that composer had sampled another piece of music

that was owned by Warner Chappell, without a license.

So the permission that Oli got was entirely useless.

Warner Chappell was right, and Oli was wrong.

So, here's how that should have worked

in the world that current copyright law was designed for:

First, everyone involved would have been part of a large company with a legal team.

Lawyers from the music label would have contacted the lawyers for the video company,

and they would have said, "What's going on? You didn't license that."

And the video company lawyers would have gone:

Oh, I'm sorry. I had no idea.

We bought that license in good faith from a third party.

We should both talk to them.

At which point the third company's lawyers would get a very worrying phone call.

[screams]

And all the mess would almost certainly have been settled out of court.

Maybe by backroom dealings,

maybe by teams of lawyers sending formal letters to each other.

That was the world that copyright law was designed for.

Because individuals couldn't make things

that were viewed by millions without corporate support,

you needed a publisher, or a broadcaster, or a huge production company,

and… those companies had lawyers.

The world has moved on, and copyright law hasn't.

And the result is that, when something like this happens

in the world of relatively-tiny, independent online creators,

we have to work around what the law is meant to do.

[Canon in D by Pachelbel]

Music has two main copyrights.

First, there's the copyright on the composition itself:

all the parts of a work that can be written down,

so, lyrics and notes.

And then, second, there's a copyright on each individual recorded performance.

So I can sit here, and I can play Pachelbel's Canon in D

without having to pay any licensing fees,

because Pachelbel died in 1706 and his work is now in the public domain,

in the pool of works where the copyright has expired.

His music is now free for anyone to use without payment and without credit.

Which is brilliant!

But if I'm not playing it,

I'm actually using a modern recording of it…

[music continues]

…then it doesn't matter that the composition is in the public domain:

[music stops]

someone has added their own hard work playing it,

along with the work of a production team making it sound good,

and that recording is under a separate copyright

that needs licensing to use in a video like this.

Songwriter after songwriter after songwriter has used Pachelbel's Canon in D

to the extent that it's now a cliché,

and no-one's had to pay Pachelbel or his family a penny in centuries,

but that doesn't mean any of the modern songs based on it are in the public domain.

There is new work there.

And I can't use those modern songs in this video to demonstrate that,

unless I'm actually criticising them.

On that point…

♫♫

Maroon 5's Memories is an infuriating composition

that uses the start of the melody of Canon in D but never resolves it,

which means it has the same stuck-in-your-head effect

as the jingle from Alfred Bester's The Demolished Man,

and I hate it.

♫♫

Coolio's C U When U Get There was a lukewarm lead single

from a third album that obviously did far better with a naive world audience

than it ever did with its actual target market.

There's a reason it went platinum in New Zealand.

♫♫

And The Farm's All Together Now is…

actually a pretty good song

despite the incongruity between its subject matter and its style,

but it's been completely destroyed

by repetitive and unnecessary cover versions and football chants.

Criticism and review! There we go.

That is the sort of thing that's considered "fair use" under US law,

and "fair dealing" under the much more strict UK law,

but I had to censor the album art of those songs,

because I wasn't criticising and reviewing the art,

and the art is covered under separate copyright.

In 2009, Andy Baio, then one of the directors of Kickstarter,

released an 8-bit chiptune version of the best-selling jazz album of all time,

Miles Davis' Kind of Blue.

He got a license from the music publisher. He called it Kind of Bloop.

It was all above board.

But he settled out of court for more than $30,000 with Jay Maisel,

the photographer who took the iconic photograph on the original album cover.

Kind of Bloop's album art was a pixelated version of that album cover.

Baio thought it was fair use.

Maisel said it wasn't, and Maisel had lawyers.

To quote Baio:

"The fact that I settled is not an admission of guilt.

"This was the least expensive option available."

Because copyright lawyers and copyright lawsuits are very, very expensive.

Expensive enough that that isn't the album cover!

That is a stock photo that looks kind-of like the album cover,

because I am taking no risks.

I don't know if that pixel art was fair use.

If someone took your greatest work, ran it through a pixelation filter, and then sold it,

I don't think it's entirely unreasonable to think you've been ripped off.

The line of 'fair use' is very fuzzy,

and both sides can have very strong and conflicting arguments.

That's the job of the courts to solve.

If both sides can afford it.

And there wasn't even a music video involved there!

That is a whole separate problem.

There is something called a 'compulsory license'

for selling and performing just music,

but if you want to publish a video to go with someone else's song,

even if it's just a video of you performing it on a ukelele in your bedroom,

that requires a separate synchronisation license,

and the copyright holder has an absolute right to say no to that.

YouTube has always had a lot of people uploading cover songs,

singing and performing the music that they love,

and hoping they'll get noticed.

By talent scouts, not by lawyers.

A lot of modern pop singers got their start on YouTube,

but the legal baseline for doing that outside the YouTube bubble,

if you just filmed yourself and put it up somewhere else online…

Well, the baseline is that you'd have to pay for an expensive license,

or you get sued, and you lose.

Or more likely, you get a cease-and-desist letter,

you pay a bit of money to make the lawyers go away,

and you drop out of the music industry, disillusioned.

And you can't get away with it by changing the lyrics.

A parody is probably not "fair use" unless you're directly criticising the original,

and even then, it's questionable.

'Weird' Al Yankovic, the most popular parody artist in history,

licenses the songs that he parodies.

There are lots of lengthy law journal articles asking whether he needs to,

but… it's better safe than sorry,

and yeah, I wouldn't fancy his chances if it actually went to court.

The worst-case scenario of doing an unlicensed song parody on YouTube

is that you get sued, and you lose.

Because under current copyright law, you are in the wrong.

I'm not saying that's how it should be.

I'm saying that's how it is.

And most people won't have the money to even start to defend a case like that.

Now, YouTube has a workaround for this, Content ID, I'll get to that later.

And if you're not actually using the original piece,

if you're just… reminding the viewer of it,

just getting close enough in your parody,

then you're probably in the clear.

YouTube creators who change just the lyrics of songs to do parodies

often say, "Oh, but it's transformative! It's fair use, it's for criticism!

"They can't claim copyright over it! They're making a false…

[hits piano]

They're making a false claim!" And…

Look, if you're taking a Katy Perry song and changing the words

to be about something other than criticising Katy Perry or the song itself,

it's likely not fair use.

The same way that big movie companies can't take small songwriters' work,

change the lyrics, and put the result in movies without paying and say,

"Oh, but's transformative, it's fair use. Look, we changed the lyrics."

And it may seem unfair that the law holds kids on YouTube messing around

to more or less the same legal standard as Hollywood studios.

In public opinion, there's definitely a big difference there:

People smile at small creators taking content from big companies well outside fair use,

but never the other way around.

And that's the reason that some small-time reaction YouTuber…

Hey! Hey!

can take a five-second clip from a movie and use it for a cheap punchline,

even if it's not criticism and review…

but I'm damn sure if a movie studio took a clip of a reaction channel's video

and used it in a film without permission,

there would be lawyers lining up to take the case.

Yeah, you're right. This is my content, I own it!

You hear that, Disney? Right.

Remember, tomorrow I'm reacting to the new Star Wars trailer.

Maybe there should be different treatment there.

But in current copyright law, there isn't.

If you take a photograph off a stock image site, or from some photographer's Flickr account,

and you just copy it into your blog post or your company website,

you might well get an email from a service called Pixsy.

They use automatic systems to scan the web,

detect people who've used photographs without permission,

and then they send legal letters threatening court action and demanding payment.

And legally, they are in the right.

They're using strong-arm tactics and they're in it for the money—