IMS Insights Episode 45: Content Creators, DMCA Takedown, & Future of the Industry

In the conclusion to his podcast interview, IMS Elite Expert Sam Rogers explains the evolution of YouTube content infringement issues, the Digital Millennium Copyright Act (DMCA) “takedown” process, and copyright considerations for cloud-based corporate training programs. Listen above or read the interview transcript below. (Part 3 of 3)

IMS has delivered strategic litigation consulting and expert witness services to leading global law firms and Fortune 500 companies for more than 30 years, in more than 45,000 cases. IMS consultants become an extension of your legal team from pre-suit investigation services to discovery and then on to arbitration and trial. Learn more at imslegal.com.

Transcript

Hello and welcome to the IMS Insights Podcast. I’m your host, Adam Bloomberg.

Today, we’re speaking with IMS Elite Expert Sam Rogers about content creation, the DMCA takedown process, trends, mentors, and future litigation. 

Sam Rogers is a social media industry and instructional technology expert. He provides strategic learning, marketing, and content creation services to global companies such as Google, Deloitte, ADP, Capital One, and Robert Half International. As a recognized expert in the field of Learning & Development, he routinely works with subject matter experts in technical fields to distill their expertise into training that meets organizational needs.

Adam Bloomberg:

So, how does it work if I go onto YouTube and I type in Adele's song, “Hello”, and somebody's put her entire album up there? And I've seen so many examples of that, where somebody will take a picture of the album cover, and make a video of it, let’s say an hour long. It's all the songs from the album. I don't know if we can use “album” these days as the name. But how does it work that it stays up on YouTube? I've seen that all over the place.

Sam Rogers:

Well, the short answer is it doesn't actually. YouTube is constantly trying to eradicate that, and they're getting better and better at doing that. Not only on the back end, but especially on the front end, of being able to tell when that content comes into YouTube, "Hey, we've got this already, and we see it. No, you can't do that." And of course, it's a constantly escalating arms race of people making slight modifications and slight changes to the content, to speed it up just a little bit or do something like that, to shift something that maybe isn't even audible to the human ear. But, that introduces a layer of digital static essentially, such that it prevents the Content ID tool from making that match into the degree of accuracy that it wants to. People are always trying to find ways around it, just like anybody is gaming search engine keywords in Google.

Sam Rogers: 

It's exactly like that. And so, it's a constantly changing landscape, and make no mistake though, it is an infringement to do that. Some people just don't know. I think at this point in history, most people do know that's probably not okay, but 20 years ago, well, 10 years ago even, that wasn't really common knowledge. And so, there's some stuff that made it onto the platform before that maybe YouTube hasn't identified yet, because so few people are seeing it that their algorithm hasn't really had time to go down to that level yet. But, for new content that's getting introduced, it's generally because someone's trying to infringe.

Sam Rogers:

And actually, before any new Adele album comes out, her record company will upload mixes to YouTube via the Content ID tool to let YouTube know, "Hey, we've got these songs; they belong to Adele." And even if the second production engineer should happen to leak a copy and it winds up on YouTube, it will be IDed before it's displayed, as a rule. There are some exceptions that can happen, but this is now part of the production workflow for music studios, record labels, all that kind of thing. Because they want to be the first ones to upload this content so that they can prevent things like that from happening.

Adam Bloomberg:

All right. So, you threw out an acronym earlier, and I didn't stop you to ask you to define it for us. And then, you said it was a Takedown process. So, the DMCA Takedown process, it's not a wrestling move, what is that? And let's talk a little bit about how that can be detrimental for content creators and what does it entail?

Sam Rogers: 

DMCA Takedown—it stands for the Digital Millennium Copyright Act. And it describes a process that predates YouTube, but when we're talking about YouTube specifically as a platform, it's a way for someone who wants to exert their ownership of content to say, "Hey, that's my thing. You can't have my thing, take it down." And when they press the button to initiate that process, then there's a notification that YouTube relays to the person who uploaded this thing. And they have a certain amount of time to respond to that and say, "Whoops, sorry, my bad." Or to say nothing, in which case the content will be stricken. Or to contest it and to say, "No, actually, this is my thing. What are you talking about?"

Sam Rogers:

It's a legal process that, unfortunately, does get overused by a lot of users, and people don't generally know what it means. It's a process that, hopefully, if people are using Content ID tools well, doesn't happen as often. But it's basically a way of exerting ownership, and the YouTube platform is the middle man in that situation. But any kind of online provider, as of the Digital Millennium Copyright Act, has to have a way that people can have content that is theirs removed when it's been infringed upon by other people. So basically, how do you deal with user-generated content? That's what that mechanism is. 

Adam Bloomberg:

So, let's think about content creators whose topic might be gaming or reaction videos. These are people who've figured it out, how to monetize what they're doing. What things should they be considering before uploading their content to avoid copyright strikes?

Sam Rogers: 

That's a good question. The game has really changed in gameplay videos over the last decade or so. It used to be that video game producers did not want their content up on YouTube, that is, you can't play a video game and post that up to YouTube. You're playing the game, but it's our game, that's our content. And they would strike down those videos. There were a few smart game studios that took the opposite approach of, "Sure, you can upload as many copies as you want if you're playing this game. It's our game, but you can play it all you want. Post it on YouTube." Well, guess who won out in the sales war in the marketplace? The people who were playing those games, the games they were playing tended to sell more copies. So, the game producers changed their tune about that, and things that they might have previously had a copyright issue with, and that they would've used the Content ID tool to strike down or to block.

Sam Rogers:

Instead, they opened these policies up to make it possible for people to play those video games and record themselves doing it. Because it was actually helping them rather than hurting them. It's like when you put the explicit advisory on the lyrics, you sell more copies—it doesn't help with what it was originally intended for. But, in terms of game-playing videos, I would just say, don't be the first one. When in doubt, don't be the first one to start uploading content like that because you might be the first one to get swatted down as well.

Adam Bloomberg:

It's funny, I was thinking of myself in the mall in the 80s, going through a record store seeing Motley Crue and that sticker on it. So, let's talk a little bit about maybe some trends and some disruptions moving forward. So, what are the trends you're seeing, and maybe some emerging things in the field of video production and training, and design and delivery?

Sam Rogers:

Well, for training specifically, I do anticipate that there's going to be a lot more attention paid to those mandatory trainings that everyone's supposed to take. More and more, this is being mandated differently at the state level, at the county level. We've seen even this borough of New York has this rule here, and there's a lot of confusion that exists over, well, really, who's supposed to do what? And can you prove that you told this person this thing? I expect there's going to be a lot more cases around that, especially things like diversity, equity, and inclusion and all of that, that's now starting to be mandated more. There's a lot of cases that are starting to appear around this. And so, having that legal defense, it's kind of like trying to enforce morality, but it's defending the organization from its people. You can't force people to make good decisions if you're allowing them to make decisions, but you can at least say, "We told them what the right thing was." 

Sam Rogers:

So, like in a harassment prevention issue or something like that, it's one thing for us to understand what harassment is; of course, you and I understand what harassment is. But you and I being middle-aged white men, probably of a middle-class upbringing in America, might have a different interpretation of what that means than someone who's in a more historically disadvantaged demographic. So, having that training really is important in the real world for helping shape behavior in a way that I hope everyone listening believes in. Individuals make different choices, but having the organizational defense that we told people what the right thing is, and that they interpreted that properly as of this date, I think that is going to become much more important in the future in terms of video production and trends and things that we see there, as more and more money ends up in the game with any digital platform.

Sam Rogers: 

I think there's more incentive for people to bring the suit. Whether that's a copyright infringement case, "Hey, you saw me do this video on YouTube of this song that sounds just like this song. You copied me because you saw it on YouTube," or something like that. I've already functioned as an expert witness in cases like that. I expect there'll be more of those. And then, how YouTube is distributing funds or gathering funds and all that, as more and more of the world ends up going onto global platforms like that, I think we'll see more and more cases follow as well.

Adam Bloomberg:

Well, what's in the crystal magic ball? What's coming in five or 10 years, that's just going to be game changer sort of stuff?

Sam Rogers:

Well, it's not too hard for me to see that. So, in the last five years, there's been a lot of automated infringement cases, with imagery and with text that can get indexed on websites. I had this happen myself, or I got a cease & desist notice about an image that was on a blog post that I had posted. I, being aware of such things, had actually checked that this was a license-free image before I posted it on my website, but a lot of people don't do that. They just take an image, and they posted up on their website. And so, there was this rash of inquiries that were truly automated, where the little web crawler bots had gone and found, where are the copies of this image? Where are the copies of this text?

Sam Rogers:

Let me go there and automatically issue a threatening-sounding message to the owner of this website. To basically get some money out of them for the license for this use or to threaten legal action, to have that content removed. We've seen that with the things that are easy. We haven't yet seen it with rich media very much, but we will. So, as more and more of that content gets indexed, video content, I think it will happen actually even for training content, where there's a lot of infringement that does happen today. And that's historically been kind of under the rug because it's contained, it's just within this corporation. It's not public, people can't see it. Well, all this stuff's on the cloud now, all of it is indexable. And I think that's really going to change the game within the next five years or so. What we've already seen with the easy forms of media to index, we will see with more rich forms of media, and those same automated threats will happen more and more.

Adam Bloomberg:

With your success, I'm sure there have been a lot of role models and mentors along the way for you that helped you get to where you are. Won't you talk a little bit about mentors?

Sam Rogers: 

Well, I've served as a mentor a lot more often than I've had a dedicated mentor. My mentors tend to be in books, they tend to be people that are from generations past and really internalizing their writings, and their works are what guide me. But, there's certainly one person who I've known since I was about 15 years old that's been tremendously helpful for me in my life navigating, specifically, the music industry. But also, the training work and video productions, the first person to bring me to a set of a real live movie production, coming in as part of the producer's entourage.

Sam Rogers: 

My friend, Phyllis Larson, has been a great mentor to me. Probably even more interesting than my background is her wacky background. She's a consultant. She's the person that the Grammys bring in to find the bombs after there's been a bomb threat. Because she has ways of detecting information that aren't really as quantifiable, she gets brought in to help the FBI find kids that have been abducted—one of those kind of folks. And she has access to a whole level of information that I simply do not, but I greatly admire her, and have learned a lot from how she sees the world over the years.

Adam Bloomberg:

Excellent. It's always nice to have a good mentor.

Sam Rogers:

Yeah.

Adam Bloomberg:

How do you balance the stress, the day-to-day with your company, being an expert witness, the things you'd like to do outside of work sometimes those are mixed in with work, hobbies, friends, family. How do you keep it all together? How do you take care of you?

Sam Rogers:

The world is an uncertain place, and I think when we expect it to be certain, it gets really apprehensive. It's easy to feel threatened all the time. I think, expecting things to be worked out, what does copyright look like on a global scale? How do people treat each other nicely on the internet or not? I think expecting those things to be worked out is a recipe for being upset.

Sam Rogers: 

And I would much prefer to be on the front end of design solutions and innovation of really creating a future that I want to live in. And feeling some participation in that, some stake in that, as opposed to feeling impacted by the laws that exist and the governance structures that exist and trusting those people over there to do it right. They're probably not going to, that's my baseline expectation. So, I just always have a backup to the backup of the backup of anything that's important to me, and anything that's not important to me is not important to me.

Adam Bloomberg:

All right. Well, thank you so much for spending some time with us, I really learned a lot, and I appreciate it.

Sam Rogers: 

Sure. It's a pleasure to speak with you today, and thanks for this awesome podcast. I also just wanted to add that I actually really do listen to this podcast, and you've had some great guests on here, and I'm flattered to be one of them now.

Adam Bloomberg:

Well, we can't wait to post this one, so thanks again for your time.

Sam Rogers:

Thank you.

Thank you to Sam Rogers for speaking with us today, and a special thanks to our listeners. 

At IMS, we’re trusted to deliver consulting services to the most influential global law firms early with Pre-suit and investigation services, then in litigation during discovery, arbitration and trial. It’s been our privilege to serve our clients on more than 20,000 cases and over 2,000 trials. Be sure to subscribe to our podcast and join us next time on the IMS Insights Podcast.