Brooklyn Law Review


The changing landscape of digital media technology makes it increasingly difficult for owners of copyrighted music to monitor how their works are being exploited across the Internet. This is especially true of user-generated content (UGC) platforms—websites and applications such as Facebook, YouTube, and Snapchat, where content is created or uploaded predominantly by users. These services pose a special problem to copyright owners because, instead of content being uploaded from a single source that is easily sued and has deep pockets, content is uploaded by users. Users are a troublesome group because they are innumerable, sometimes anonymous, and mostly click on "Upload" without a moment’s regard for the copyright law. The Digital Millennium Copyright Act was intended to anticipate this problem, granting copyright owners the right to take down user-uploaded content claimed to be infringing. However, the DMCA falls short in that it is virtually impossible for a copyright owner to police thousands of potentially infringing uploads across thousands of web properties. To make matters worse, the process is a game of whack-a-mole, as blocked content may reappear instantaneously, uploaded by a different user, prompting a copyright owner to reinitiate the takedown process over and over again.

Enter Content ID. Content ID is YouTube’s proprietary rights management system that automatically scans all user uploads for infringement and generates claims on behalf of copyright owners. Content ID solves the logistical headache of monitoring content for infringement, but it goes even further by allowing copyright owners to monetize infringing uses to their benefit by packaging advertisements into the formerly infringing content. This note posits that Content ID’s monetization system has resulted in a de facto compulsory licensing regime. In practice, once copyright owners opt into monetization (and most have), all users are granted an automatic synchronization license to use almost any musical work on YouTube. Content ID is not only an extrajudicial system for enacting takedowns, but has become a healthy marketplace for music copyright owners to monetize their works, generating over a billion dollars in revenue. It subverts the traditional practice of obtaining a license before a use, instead allowing copyright owners to ratify an infringing use. Thus, the Copyright Act should be amended to reflect current patterns of use by codifying a compulsory synchronization license for UGC platforms. This note also proposes that UGC platforms should utilize a Content ID–like system, or some equivalent, to facilitate the administration of the compulsory synchronization license. Finally, this note critiques the current Content ID system and provides suggestions for making adjudication of copyright claims fairer for all parties involved.