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Copyright claims on white noise (2018)

Summary: Every platform hosting user generated content these days is pretty much required (usually by law) to have policies in place to deal with copyright-infringing material. However, not all content on these platforms is covered by copyright, and that can potentially lead to complications, since policies are often built off of the assumption that everything must be covered by some form of copyright.

Australia-based music technologist Sebastian Tomczak, who has a PhD in computer generated music, created from scratch a 10 hour “low level white noise” recording, which he placed on YouTube. He created the file himself, then made a video version of it, and posted it to YouTube. In early 2018, he discovered that there had been five separate copyright claims on the video from four separate copyright holders.

Each of the claims argued that other videos of white noise held the copyright on white noise, and that Tomczak’s video infringed on their own. Amusingly, each claim designates which short segment of the 10 hour video infringes on their own work -- even though the entire 10 hours is literally the same white noise.

None of the claims demanded that Tomczak’s video be taken down, but rather sought to “monetize” it under YouTube’s ContentID offering, which allows copyright holders to leave up videos they claim are infringing but divert any advertising revenue to the copyright holder.

Somewhat incredibly, one copyright holder claims that Tomczak’s video infringes on two separate videos of their own, both of which also offer white noise.

One company involved – Catapult Distribution – say that Tomczak’s composition infringes on the copyrights of “White Noise Sleep Therapy”, a client selling the title “Majestic Ocean Waves”. It also manages to do the same for the company’s “Soothing Baby Sleep” title. The other complaints come from Merlin Symphonic Distribution and Dig Dis for similar works .

It appears that all of the claims were automated claims, using various services that scan videos for similarities. However, it does not appear that any of those services first check if the originating videos actually involve a valid copyright in the first place. Instead, they often are based on an entire account, and just search for any similar videos, whether or not there is a valid copyright.

Decisions to be made by YouTube:

  • Is white noise even covered by copyright?
  • Should the platform allow users to claim the monetization rights on other similar videos in which there is no valid copyright?
  • If there are multiple copyright claims (and monetization claims) on the same video, how is it determined who has the rights and who gets to monetize?
  • Should automated systems be allowed to make copyright claims without any regard to actual copyright status?

Questions and policy implications to consider:

  • If copyright laws and policies are built on the assumption that every piece of content is covered by copyright, how should internet websites deal with situations in which there does not appear to be a valid copyright?
  • What are the long term implications of automated systems that do not involve any actual lawyers or experts reviewing either copyright takedown or monetization requests?

Resolution: Tomczak seemed to find the situation more amusing than anything else and noted that he’d received a few similar notices in the past. He expected that after contesting these claims, YouTube would likely drop them:

“I’ve had quite a few copyright claims against me, usually based on cases where I’ve made long mixes of work, or longer pieces. Usually I don’t take them too seriously,” he explains.

“In any of the cases where I think a given claim would be an issue, I would dispute it by saying I could either prove that I have made the work, have the original materials that generated the work, or could show enough of the components included in the work to prove originality. This has always been successful for me and I hope it will be in this case as well.”

Indeed, a few days after he contested the claims (and those claims received widespread press attention), YouTube did release all of the claims on the white noise video. Tomczak has separately argued that this case -- even with the final outcome -- suggests that parts of the system need to change.

"Hopefully cases like these with the white noise, which shows how sort of broken their copyright system is, can shed some light on it or get YouTube to think about changing their system," he said.

Written by The Copia Institute, October 2020

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