Sebastian Tomczak and the limitations of YouTube’s $60 million dollar Content ID software

Having had an extended hiatus from blogging after a particularly bruising and fraught masters dissertation process (!), this blogger is absolutely delighted to return to discuss the plight of Sebastian Tomczak, a music technologist whose 10 hour YouTube video of White Noise was plagued by copyright complaints (this story was mentioned on the Copykat last week). After a furore that engulfed the internet over a period of days, Tomczak tweeted on the 08 January that YouTube released the copyright claims on the video.

Tomczak’s approach and his music – does it attract copyright protection?

Tomczak interviewed with Torrent Freak, and discussed his approach to his work:

“I teach and work in a music department at a University here in Australia. I’ve got a PhD in chiptune, and my main research interests are various intersections of music / sound / tech e.g. arduino programming and DIY stuff, modular synthesis, digital production, sound design for games, etc,

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, focus, sleeping, waking, working etc,.

I ‘created’ and uploaded the video in question. The video was created by generating a noise waveform of 10 hours length using the freeware software Audacity and the built-in noise generator. The resulting 10-hour audio file was then imported into ScreenFlow, where the text was added and then rendered as one 10-hour video file.” (I added the red to the font.)

As a very general rule of thumb, for copyright protection there must be (i) a work (ii) that work must be original (iii) the work must be fixated. Great debate can be expounded on all three of these aspects – what a work is, what originality is and what amounts to fixation. However, it is the question of originality that is most pertinent to Tomczak’s case. Within the European jurisdiction, a work is considered to be original when it is ‘the author’s own intellectual creation’ (Infopaq); where she might exert ‘creative freedom’ (FAPL) and where she is able to ‘express her creative abilities in the production of the work by making free and creative choices … so she can stamp the work created with her “personal touch”’ (Painer).

From these legal considerations of originality, it would appear from Tomczak’s description of how the work was generated (in red above) that it would likely not meet the legal originality threshold. It appears that no creative freedom was exercised nor were free and creative choices made. (I must concede, however, that I have based my assumption on the quote provided by Tomczak above. It is possible that he made creative choices during the creation of his piece and just did not explain this to Torrent Freak.)

YouTube’s Content ID Software and the Article 13 question

Tomczak’s case is yet another example that highlights the limitations of Google’s content ID software. It shows that the software is incapable of determining whether or not copyright actually subsists within the video in question. (And this case does not even touch upon fair dealing or fair use issues!)

Readers will be aware of Article 13 of the proposed Directive on Copyright in the Digital Single market. It is supposed to redress the ‘value gap’, which posits that content creators are losing massive profits because of copyright infringement online. Article 13 is specifically directed at platforms that host user-uploaded content and threatens potentially to obligate these platforms either to use content ID software – such as that used by YouTube – or to agree licenses with rightsholders. If platform providers that host user-uploaded content are obligated under the law to use content ID software, the completely absurd set of circumstances that materialised in the Tomczak case – where white noise was subjected to copyright complaints – would arise as a result of the operation of the law. 

 

Law is an essential aspect of the social contract and a regulative concept that binds our society together. If we make laws that generate absurd outcomes, surely we must question why we choose to govern ourselves in this way. This writer must argue that laws that intrinsically create preposterous circumstances will probably not serve society positively – they will serve to alienate citizens and inhibit cultural development.

The limitations of YouTube’s $60 million Content ID software are brought into sharp focus in Tomczak’s White Noise case and brings to mind the dangers of making the use of these types of software obligatory under the law. Article 13 is currently with the Legal Affairs committee and has been hotly contested throughout its entire journey through the legislative process. The committee was scheduled to vote on it this month but this will probably be pushed back to March due to the difficulties associated with the Article. This writer is waiting to see the result of the compromises and negotiations currently taking place surrounding Article 13 with bated breath.