Content Creators, Freebooting & Rights Management

Freebooting is not a new concept. In this cartoon—The Pirate Publisher—An International Burlesque that has the Longest Run on Record by Joseph Ferdinand Keppler, published as a centrefold in Puck, v. 18, no. 468 (1886 February 24). A commentary on the state of copyright laws that, prior to a 1911 treaty, generally offered no protection to foreign authors and works. Publishers would republish material in foreign countries with no copyright protection, similar to modern freebooters today.

Facebook, the social media giant, recently adopted ad-revenue-sharing practices with content creators similar to YouTube’s economic model. Content creators thrive under this new model. To name just one example, Felix Kjellberg (who goes by the online moniker PewDiePie) has nearly 40 million subscribers to his YouTube channel and has earned in excess of 12 million dollars during the 12-month period ending June 1, 2015. And he’s not alone. YouTube stars are raking in millions of dollars per year, spurring competition and growth in a segment of entertainment that didn’t even exist a few short years ago.

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The availability of two popular, profitable services has created a new problem: freebooting, the practice of stealing content from one media platform and hosting it on another.  Freebooting is ubiquitous on Facebook and the platform is so large that it’s the easiest example to use. Freebooters first rip content from popular YouTubers and then re-host it on Facebook, racking up millions of views and reaping rewards that can total in the tens of thousands of dollars per video. It’s about as close to highway robbery as you can get on the Internet.

This practice is flat-out illegal. And a lot of content creators in this new economic sphere are lashing out publicly. I moderate two of Reddit’s largest communities, IAmA and AskReddit, where content creators of all sizes, from those with small channels to some of the largest and most popular viral video authors, are outraged by freebooting. While public spectacles can be cathartic, they do not recover money or stop Freebooters from stealing content and revenue—but the law can.

Content creators followed the rules and made their content widely available on new platforms. They did not cling desperately to outdated brick-and-mortar economic models like the record companies of the 1990s. Content creators adapted to the Internet, putting themselves, their likenesses, and the fruits of their labor on display in new spaces that cater to consumers across desktops and mobile devices. Though the platform is new, the legal mechanisms that protect the content are not.

Historically, copyright law has protected the creative fruits of content creators.  Creators from traditional media—book authors, photographers, cartographers, and creative individuals from all walks of life—enjoy these protections.  As with traditional media, copyrights protect the creative output of these content creators.

Copyright can be a confusing concept for non-attorneys (and even some attorneys).  It is a form of protection provided by United States law (title 17, U.S. Code) to the authors of “original works of authorship,” including literary, dramatic, musical, artistic, and certain other works that are “fixed in a tangible medium.” So the instant an author completes a work, a copyright is born. Registering that copyright with the copyright office gets that author some extra perks that go a long way toward securing their rights. For example, infringing a registered copyright results in statutory damages up to 150,000 dollars per infringement.

Registering a copyright is easy and costs as little as 35 dollars. For a little more than that, content creators can retain an attorney to assist in registering a copyright if they are nervous about the time involved or getting things perfect. In some cases, attorneys will file copyright registrations at the cost of the filing fee.

In the 9th Circuit (which includes California), merely filing a registration is enough to secure the right to sue someone for copyright infringement. But the circuits are actually split on this issue: an application for registration is sufficient in the 5th, 7th, 8th and 9th Circuits, while actual registration is required in the 3rd, 4th, 10th and 11th Circuits. This is a “heads up” to people in circuits that might make a content creator wait before getting protection in the courts.  But it’s possible to pay extra and expedite a registration. Regardless of where a content creator is located, it’s possible to quickly obtain the perks associated with registering a copyright quickly. Content creators can use this as a powerful tool to beat a freebooter over the head.

But part of the problem comes from Facebook itself. Content creators without a registered copyright are almost entirely limited to normal Digital Millennium Rights Act (DMCA) takedown processes. The Facebook DMCA process is lengthy and Facebook’s tech for identifying infringing content will likely remain far from perfect and was launched recently, nearly a year after employing the ad-revenue-sharing economic model for video content.

Rights management systems, even on YouTube which created its Content ID system to identify infringers years ago, is riddled with fraudulent claims where it is often used as a weapon against competitor channels; stripping them of monetization at the height of a viral video’s popularity.  The solution presents almost as many new issues as it solves.  The tech solutions available to Creators leaves no meaningful recourse on either platform.

Using copyright law though, content creators can actually demand money back from freebooters, and, if they cannot recover their money by demand, with a registered copyright they can file suit and seek statutory damages up to 150,000 dollars.

No one likes litigation. No one likes having to use the courts. In the public’s memory of copyrights and the Internet, litigation is often associated with record companies, battles with Napster, and aggressive lawsuits against small-time music pirates. Copyrights are not just the tool of large record companies with large legal budgets. If someone robs a small YouTuber of tens of thousands of dollars by freebooting their content to Facebook, copyright law requires the thief to pay the creator. Unlike record companies in the ’90s, who attempted to exploit the law to preserve an industry dying under the weight of iPods and the Internet, content creators can—and should—avail themselves of the protection copyrights provide. Copyright protection is essential to defending content creators’ rights and money from this new form of piracy.

Modern content creators followed the rules associated with consumers and new media. They should not be afraid to pull the legal levers tarnished by the recording industry two decades ago. They get to defend their content and they are entitled to the fruits of their labors.



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About Brian Lynch

Brian Lynch graduated from the Georgia Institute of Technology with high honors and a degree in Public Policy studying science and technology policy. Brian earned a Juris Doctor from California Western in 2012. Brian is a member of the State Bar of California and admitted to practice in the U.S. Southern District of California and the U.S. Central District of California. Brian also manages and implements policy for an online community of over 40 million users and started www.goerwin.com in 2016 to tackle some of the pain points associated with trademark and copyright filing.


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