At the start of a recent episode of The Old Time Radio Snack Wagon, I featured a clip from Nora Bayes’ performance of, “How Ya Gonna Keep ’em Down on the Farm (After They’ve Seen Paree)”. It was a record that was released in December 1918.

Which means it’s in the public domain. It used to be that all records prior to 1972 were set to enter the public domain in 2067. But in 2018, Congress passed the Music Modernization Act, which placed records before 1972 under Federal Copyright protection with additional time. Per federal law, all pre-1923 sound recordings would enter the public domain on January 1, 2022, and then records from 1923-46 would have their copyright expire after 100 years, so all records from 1923 would expire on January 1, 2024.

So, as my Old Time Radio Snack Wagon episode posted at the end of 2023, contained a 1918 recording whose copyright expired at the end of 2021, I was fine to post it. And then I got a copyright claim on the episode barring monetization. I filed a dispute, there was no response, and the claim was released after 30 days, on January 4. Then, just as I was getting ready to write this article, I got yet another claim seeking to split revenue on a public domain recording. Here we go again.

Of course, that’s not the only dispute I’ve got going. For New Year’s Day, I did a Public Domain Day Record Party featuring four records that entered the public domain at the end of 2023. Three of these, once again, have copyright claims:

My point is not to write a woe-is-me article. To paraphrase Casablanca, “The problems of one content creator don’t amount to a hill of beans in this crazy world.” Yet, I’m far from alone in having this trouble with YouTube, certainly not since the start of the year. The first appearance of Mickey Mouse, Steamboat Willie, entered the public domain on January 1st. Disney has continued to file copyright claims on Steamboat Willie, leading to demonetizing videos. In fact, one creator has already had his video demonetized, remonetized, and demonetized again. What’s going on? YouTube’s solution to one of its early problems, and its failure to adapt, is the source of its newest round of ongoing problems.

The Original Copyright Problem 

YouTube has been in existence since 2005, and quickly gained popularity as the go-to place for users to share their videos. Within two years of its founding, YouTube was bought out by Google, who sought to capitalize on the opportunity.

Google’s problem was that YouTube wasn’t just home to fun user-generated content. It also became a den of virtual video pirates. People posted copyrighted music videos, television programs, and movies on the platform without compensating creators. This led to lawsuits by large corporations wanting to protect their interests.

This was not an easy problem to solve. The vast amount of material uploaded every second of every day to YouTube made it impossible for a human being to monitor it all. To proactively fight piracy, YouTube introduced the Content ID system, which, after all these years, is still a bit of a blunt instrument to fight piracy. It’s an automatic system that checks videos for copyrighted content and, in turn, hands out copyright strikes, demonetizes videos, or requires sharing with content owners.

The system has worked to an extent. It has limited YouTube’s liability and it’s also resulted in billions of dollars in revenue distributed to creators (or large corporations that have purchased rights to their works). But it’s also led to problems. Fair Use has been an ongoing problem, particularly for YouTubers whose work is focused on critiquing pop culture such as movies, television, music, and video games, where using clips from a work is covered under the Fair Use exception of Copyright laws (if done appropriately). This led to the “Where’s the Fair Use” social media campaign against the excesses of Content ID.

A much newer problem is content that entered the public domain. In 2007, when Content ID was introduced, the public domain had remained frozen since 1998 thanks to The Sonny Bono Copyright Extension Act. It had extended all copyrights on works created after 1923. It was also widely assumed that Disney, the Motion Picture Association of America (MPAA), and all the big media companies were going to be back under some pretext or another to get their Congressional patrons to once again extend copyrights so they could continue to profit off characters, movies, and stories that had been created nearly a century ago. In addition to that, no sound recordings were expected to enter the public domain in the U.S. until 2067. So it was understandable that the idea of copyright expiring wasn’t a consideration at the time Content ID was created.

Yet somehow or another, the film industry didn’t try to extend copyright terms, and the public domain began to grow. And then the recording industry, eager to gain federal copyright protection rather than having their pre-1972 works covered by a patchwork of state laws, agreed to a schedule to let older sound recordings enter the public domain starting in 2022.

Congressional passage of the Music Modernization Act and the failure of any copyright extension to pass in 2018 should have put Google on notice. The public domain was going to expand. The initial works released into the public domain in 2019-2021 were going to be of little concern to YouTube: books, silent films, and sheet music don’t really translate to video. But 2022 and on would be a different story. Congressional action gave them fair warning. They had years to tweak Content ID before a flood of new works would enter the public domain and be free to use.

They didn’t do it.

YouTube’s Responsibility

The public domain is an important principle of copyright law. The artist creates work and, thanks to the protection of copyright by the government, the artist profits from the work. This protection is far-reaching as not only does the government provide domestic protections for work, but they will fight for the protections of U.S. intellectual properties in dealings with foreign governments. This says nothing of the benefits the artist enjoys from living in a society where taxpayer money provides a society where the opportunity to create isn’t unduly hindered by war, famine, or crime.

That’s why, after what the Constitution calls “a limited time”, copyright expires and a work enters the common culture, so that works can be freely enjoyed and also be freely available to other artists to adapt, or incorporate in their own vision.

The public domain is why Disney could make classics like Snow White, Pinnochio, Sleeping Beauty, and Alice in Wonderland and freely and expand upon those stories. It’s why Orson Welles could do Julius Caesar in modern dress. The public domain is a treasure trove of works that inspiring artists can access and use for their own creative ends. In addition to this, some works that enter the public domain find a new audience or gain new appreciation, as happened with It’s a Wonderful Life back in the 1970s.

YouTube has a big role to play in this process and right now it’s failing. In the previously mentioned “Public Domain Day Record Party”, I played these recordings that were newly added to the public domain and offered background on each song. A YouTube commenter suggested I start another podcast, “DJ Adam.” As fun of an idea as that is, I doubt there’d be enough demand for it to be worth it. But it would be great if someone did a podcast where they played public domain records and provided commentary on it.

The problem? Who wants to spend months fighting YouTube’s computerized Content ID system and the lackadaisical response of multi-billion-dollar corporations who are in no hurry to respond to your dispute so you can remonetize your little video?

Of course, you can create content off of YouTube. Audio-only content in particular can have great success off of YouTube. Less than 10% of my total downloads/views comes from YouTube. However, YouTube is trying to change that by capturing more and more of the podcast market. Indeed, there are many metrics that suggest that YouTube is the most-used podcast platform and it only means to get bigger.

YouTube has built itself a place as the world’s top video provider (outside of perhaps Tiktok). There are other video platforms, but YouTube is where creators who want to be seen and heard by a wide audience go. It’s a powerful platform, but, as the saying goes, that comes with great responsibility.

For the next two decades, an entire year’s worth of cinema and song will enter the public domain every year and YouTube is totally unprepared for it. Steamboat Willie is only the start. As the years go on, more enduring classic films from legends like Frank Capra and Alfred Hitchcock are going to begin their march into the public domain, along with records by legends like Bing Crosby. Creators are going to want to use these in their own works and legally they’ll have the right to do so. However, many creators are going to be caught in the web of YouTube’s outdated Content ID scheme, which will either send all of the money from their work to some multinational corporation with no right to it, or make them split their revenue with that company.

These types of horror stories are going to happen over and over again, and rather than exploring and being inspired by new public domain works, a lot of creators are going to be hesitant to use them. Particularly for popular YouTube channels that may release a video or two every week, getting hit with a Content ID claim can wreck a month’s budget for medium-sized YouTube channels that are dependent on ad revenue.

Due to its unique position in the marketplace, YouTube is able, rather than fostering the use of new-to-the-public domain materials, to stifle them. Its attempts to take revenue from creators and to give it to the former holders of expired ccopyrights is unfair and thwarts the intent of the law. It also serves to penalize and suppress the sharing of great cultural works that are part of our media heritage.

What Should YouTube Do

I’ll admit that I’m neither an engineer nor a YouTube insider. I’m just a podcaster with a YouTube channel that can tell that YouTube’s Content ID is broken. My ideas on how to fix it are basic, but I think have some sense.

First, disputes are sent to the claimants to respond to and only if they graciously refuse your dispute (or refuse to respond to it after 30 days) does the claim get released. The amount of time that claimants are given should be reduced to no more than 15 days. The idea that they need 30 days is absurd, particularly as more and more people’s livelihoods dependent on YouTube. It should also be easier to have someone from YouTube be able to get directly involved and research the case. Indeed, YouTube should probably retain a team of paralegals trained in copyright law for that purpose.

Second, the easiest way to avoid disputes over U.S. copyright is to have publication dates on the audio or video. Was the film released before 1929 or the sound recording before 1924? Then they’re in the public domain in the United States. If publication dates were added to Content ID entries, then on January 1, expired U.S. copyrights could be deleted from the system. This process could be something YouTube could ask of companies that have submitted Content ID or could be done by Google with the assistance of AI.

This gets a bit more confusing with International Copyrights which are often based on the year of the creator’s death. But I think if Google gets the copyright law right for the country its headquartered in, that would be a good start.

This would also be an expensive project, but Google has set YouTube as the world’s premier content provider. And there are serious responsibilities that go along with status. Not all of them can be met on the cheap. Google owes it to its creators and to the society that makes its existence and profitability possible to get this right.