YouTube let Warner Bros. copyright strike my content before it existed

Can you receive a copyright strike on YouTube for content that doesn’t even exist?

You can and I would know because it happened to me.

You see, I host a political podcast, DOOMED with Matt Binder, which I also stream live on YouTube. The left-leaning show covers everything from the far right to tech policy, from internet conspiracy theories to the Democratic primary race. Which brings me to Tuesday, Jan. 14, the night of the CNN Democratic primary debate in Iowa. 

Earlier in the evening, I’d scheduled a YouTube livestream, as I always do the night of a debate, in order to discuss the event with progressive activist Jordan Uhl after CNN’s broadcast wrapped up. I’d even labeled it as a “post-Democratic debate” show featuring Uhl’s name directly in the scheduled stream title. These post-debate shows consist entirely of webcam feeds of my guest and myself, split-screen style, breaking down the night’s events.

Shortly after setting up the stream, which wasn’t scheduled to start for hours, I received an email from YouTube:

“[Copyright takedown notice] Your video has been taken down from YouTube.”

The notice informed me that I had received a copyright strike for my scheduled stream. That one copyright strike was enough to disable livestreaming on my channel for the strike’s three-month duration. If I were to accumulate three strikes, YouTube would just shut down my channel completely, removing all of my content.

This wasn’t an algorithm. An actual person submitted a legal claim saying they owned my nonexistent content.

According to the YouTube notice, a person by the name of Michael Bentkover issued the copyright strike on behalf of Warner Bros. Entertainment, which owns CNN, the hosts of the last Democratic debate. That’s right, this wasn’t an algorithm or automated system run amok. An actual person manually submitted a legal claim saying they owned my nonexistent content.

To reiterate here, the content did not yet exist. Everyone knows by now that if you post content you don’t own on YouTube, there’s a chance you’ll receive a copyright strike for posting it. However, in my case, Mr. Bentkover, representing Warner Bros. Entertainment, was claiming ownership over content I never even had a chance to create.

Because of the copyright strike, I was unable to stream my post-debate show on YouTube that night.

“Your case is the most extreme I’ve heard about. Congratulations,” Electronic Frontier Foundation Manager of Policy and Activism, Katharine Trendacosta, said to me in a phone conversation on the issue. “This is the first time I’ve heard about this happening to something that didn’t contain anything. And I have heard a lot of really intense stories about what’s happening on YouTube.”

Trendacosta would know. As a lawyer with the EFF, she has worked on cases involving YouTube issues ranging from bad faith copyright claims on static noise to a creator’s own voice.

“The law requires them to have a good faith belief,” Trendacosta said, referring to the Digital Millennium Copyright Act. “Legally, you have to sign something that says you looked at the content and that there was material found that is yours.”

“If there is no material, that’s impossible.”

To contest a copyright strike, YouTube allows users to submit a counter-claim, giving the claimant 10 days to respond. My first claim was actually denied, effectively saying it was unclear whether I had a valid reason to file a counter notification. So, that’s when I reached out to YouTube to let the company know I was going to do a story on this. 

Apparently, bad PR is all it takes to set the wheels of justice in motion.

According to YouTube, it appeared that Warner Bros.’ representative searched for content involving the debates and manually issued the claim based on the title of the scheduled livestream. YouTube then subsequently removed the copyright claim, the strike, and restored livestreaming abilities to my YouTube channel.

“YouTube is far more afraid of being sued by Warner Bros. than being sued by you.”  —Katharine Trendacosta, Electronic Frontier Foundation

While I’m happy that was the eventual result, it’s not enough for me. I now find myself asking even more questions. For example, why does YouTube even allow copyright claims for content that doesn’t exist? Trendacosta believes the company most likely doesn’t distinguish a scheduled stream from an uploaded video on its backend.

“Your case is a really extreme example of a fairly common situation in which these major companies send DMCA takedown on a very broad basis,” she explained. “YouTube is far more afraid of being sued by Warner Bros. than being sued by you, so you end up with them being much more cautious and doing things like just allowing DMCA strikes on anything.”

So, what can be done? Apparently, not much. 

YouTube practically has a monopoly on user-generated online video, which is especially harrowing if you’re a creator looking to monetize your content. The outlook is even worse if you’re seeking accountability from the copyright claimant.

“This is CNN and Warner Bros. abusing a system that was designed to allow more things to go up, not less,” Trendacosta said. “The DMCA allows you to sue if you have been harmed by a fraudulent takedown.” 

“… When you’re talking about regular people versus Warner Bros, bringing a lawsuit is really difficult and expensive,” she explained. “It’s easier for a lot of people to just take the dismissal of a copyright strike and move on, rather than to try to hold these companies to account for it.”

So, the situation ends up being like this: YouTube could do something, but it won’t. Creators should do something, but they can’t. 

Effectively, the laws passed to help facilitate content creation are being used in bad faith by corporations to ensure the opposite.

Still, I’ll continue to host my livestreams on YouTube. That’s where the audience is. But, now I know the all-important corporate copyright holder may be waiting; waiting for me to title my scheduled stream in a way that kind of, sort of sounds like it could possibly be their content when it eventually airs.

Then, I’ll be at the mercy of their whim because there’s always a chance they could lay claim to content I’ve yet to create. And YouTube, of course, will let them.