Copyright Bots Need a Tune-up

Isabella C. DiCarlo | March 5, 2022

What are Copyright Bots?

Digital media handles like Instagram, YouTube, and Tik Tok are now the platforms of choice for creators, new and old, to showcase their work. The accessibility of these platforms opens an untapped market of creativity, allowing for anyone with a smartphone to disseminate their work. With great freedom, though, the potential for copyright infringement skyrockets.

This is where copyright bots come in. Also known as content recognition software, copyright bots are automated systems programmed into digital media platforms that compare uploaded content against an archive of copyrighted content to recognize similar works. The copyright owners, or the platforms utilizing copyright bots, can then examine the similar works to determine whether the work is an actual copy, whether the copy is licensed, and whether legal action to remove the work is merited. Some bots can even handle the enforcement of the copyright by sending out notices and handling appeals.

The Digital Millennium Copyright Act (DMCA) of 1998 is one explanation for the popular use of copyright bots. Under the Act, online service providers can be held liable for direct infringements of copyrighted work made by its users that they are aware of, regardless of whether they are responsible or receive any kind of financial benefit from the infringement. Fortunately, the safe harbors provision of the DMCA provides immunity from secondary infringement liability as long as the online provider swiftly removes and disables access to the infringing material. This incentivizes providers to use automated systems capable of acting expeditiously.

Another explanation for the use of copyright bots is necessity. There is simply too much new content being uploaded for humans to manually search on their own. To put it in perspective, 720,000 hours of video are uploaded to YouTube every day. If human reviewers are equivalent to a guard dog, then copyright bots are an entire army, able to identify, analyze, and compare uploaded content at a rate that is not viable for humans.  

The Benefits and Risks of Copyright Bots  

Copyright bots provide substantial benefits to copyright owners and digital media platforms. Without bots, it would take a lifetime for copyright owners to police a fraction of YouTube’s content alone. Humans’ limitation in identifying similar works results in thousands, even millions, of works neglected under the radar.

Copyright bots, on the other hand, provide a copyright owner with an all-inclusive overview of similar works because they can effortlessly sift through content at a relatively instant speed. They can also enforce a copyright owners rights without any oversight. Consequently, this automated method identifies all matches, allowing copyright owners to comprehensively enforce their rights against all, instead of just a fraction, of unauthorized uses.

Digital media platforms also benefit significantly from the use of copyright bots. According to YouTube, over 98% of copyright issues on the platform are handled by their content recognition software. With the eminent risk of liability under the DMCA, it’s no wonder why YouTube and other platforms use overzealous copyright bots.

Nevertheless, copyright bots pose several risks. First, copyright bots are far from perfect and tend to produce false positives. The automated systems often flag content that uses a de minimis amount of copyrighted material, or material that is in the public domain. In particular, bots do not have an ear for classical music, which exists as a frequently revisited collection of public-domain works that are distinguishable through slight variations in performance.

Copyright bots’ tendency to produce false positives disproportionately favors the interests of digital media platforms and copyright owners. Both groups have an incentive to remove as many close matches as possible, even when they are false positives that don’t constitute infringement. This is especially true for digital media platforms that are motivated to rigorously comply with the DMCA’s notice-and-takedown process to shield themselves from liability. Overall, there is little to no deterrent for digital media platforms and copyright owners to eliminate any and all content identified by the bots.

On the other hand, the odds are against content creators when they appeal a takedown notice. If they lose on the appeal, they risk having their digital media accounts blocked and being forced to pay a high licensing fee or settlement payment. Content creators fear receiving a takedown notice every time they post new content. Doug Walker, a popular YouTube host, said that his fear of takedowns when administered by a bot has made him never feel safe posting a video, even though “the law states that [he] should be safe” posting his videos. As a result, many content creators, like Walker, choose to censor themselves instead of gambling on an appeal.

Second, copyright law is intended to allow for flexibility and discretion in the analysis of whether a new work infringes a protected work. Bots, however, are unable to decipher the difference between fair uses of a copyrighted work—works that are a parody, intended for educational purposes, or have been transformed—from works that are infringing.

For example, Richard Prince’s series of paintings called “Canal Zone,” in which Prince added an animated guitar and eyes to an existing photographic work of a Rastafarian man, likely would be signaled and shot down by copyright bots. But the court in Cariou v. Prince found that “all but five of Prince’s works do make fair use of Cariou’s copyrighted photographs.”

Bots’ limited ability to recognize the limitations on copyright law risks granting monopolies to the original owners, which is something copyright law is intended to prevent.

Copyright Bots’ Impact on the Policy Goals of Copyright Law

In addition to the short-term effect on content creators, copyright bots’ deficiencies ultimately harm copyright law’s policy goals. Copyright law stems from Article 1 Section 8 clause 8 of the Constitution: “Congress shall have power to… promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries…” Under the United States’ utilitarian perspective, the exclusive rights of reproduction, adaptation, publication, performance, and display afforded to copyright owners is intended to foster creativity and innovation to benefit the public. What copyright law does not grant, however, is a monopoly over original works with a modicum of creativity.

Copyright bots do a good job of protecting owners’ rights across a broader range, and they help keep digital media platforms within the safe harbors of the DMCA. However, overreliance on copyright bots risks granting monopolies to copyright owners and turns a blind eye to the intended limitations on copyright law. This is especially true when the bots themselves are also in charge of enforcement.

Moreover, the bots’ rigorous administration of owners’ rights fails to acknowledge the lawfulness of works that supersede the objects of original creation or add something new with further purpose or different character. Transforming a copyrighted work or using it for educational purposes benefits society and achieves copyright law’s policy goals.

If digital media platforms continue to take a back seat while bots drive enforcement, copyright law in the online world will discourage creativity and innovation. Ultimately, this will halt the advancement of science and the useful arts. Even worse, creators may start focusing on ways to avoid copyright bot detection instead of spending time adding value, information, or new aesthetics to copyrighted material, thereby failing to further progress and protect owners’ rights.

Moving Forward

Copyright law’s design leaves room for discretion to balance the tension between copyright owners’ rights and creators’ liberty. Digital media platforms should embrace the permitted use of copyrighted material to maintain the peace between copyright owners and creators instead of unleashing their bot armies on the slightest hint of a potential infringement. As human oversight dwindles, and the use of bots rises, creators will be forced to learn the bots’ algorithm to avoid attacks instead of enjoying and capitalizing on their freedom under the fair use doctrine.

The easiest solution would be to eliminate copyright bots entirely. However, bots are necessary considering the sheer volume of new content uploaded every minute. Nonetheless, they need revision to be more skeptical of works that are similar to or contain copied material. There also needs to be human oversight, especially during the enforcement stage, until copyright bots can differentiate between infringing works and fair uses. It’s time for copyright bots to receive a much-needed tune up before they rewire content creators and deprive the online world of their artistry.