Phillip McNamara learned the hard way how quickly a Facebook post can be seen by millions.
The 58-year-old from Townsville, Australia, took a video of an exploding volcano while on vacation in Papua New Guinea at the end of August.
McNamara told the Daily News he thought the video that he took on his iPhone was pretty interesting and wanted to share it. Little did he know that as of Thursday it would have been seen more than 14 million times on YouTube … after someone stole it.
McNamara admits he is not social media savvy, so his wife posted the viral video to her Facebook page. She then made it public so McNamara’s friends could see it as well.
Then the phone calls started from media all over the world.
“My wife and I were angry,” he said. “To think someone had uploaded OUR video to YouTube. How dare they use our footage as their own?”
McNamara became a victim of a common issue with online videos — the theft and reposting by others for profit.
With advertisements sold to run before each video, it can be profitable to steal content and post them online. And many victims say they do not have the time or resources to track people who steal their content and that the penalties aren’t high enough to thwart piracy attempts.
In fact, there is incentive to steal: It’s very difficult, if not impossible, to determine which videos will go viral, meaning thieves need to take and repost as much content as possible in hopes of getting enough views to make the effort worth it.
And the victims are often shocked to learn something as simple as their cat playing in the backyard is getting millions of views.
Experts counsel anyone who posts online and on social media should track it in case the content is shared far beyond their circle.
“If someone takes a video or picture on a cellphone, you have to imagine all of that content will be released,” warns Che Pinkerton, president of DMCA.com, which helps individuals and companies protect their content from being stolen.
“If you put something on any platform whatsoever you must expect it could be stolen without your permission,” he told The News. “If you don’t want a picture or video to be seen the bottom line is don’t take it.”
Knowing the Process
All material is protected under federal copyright law as soon as it’s fixed in a tangible medium such as a camera or phone, according to Art Neill, founder of New Media Rights of the California Western School of Law in San Diego.
But protecting the content once it’s published requires vigilance and a process that ultimately requires lawsuits to stop online the infringement of the copyright.
“If you are the copyright owner you have to pursue enforcement of your own copyright,” said Neill, who represents individuals embroiled in this issue.
When a person’s content is stolen they file a claim under the federal Digital Millennium Copyright Act that was established in 1998.
The victim must create a takedown notice that includes their information, what needs to be taken down, and swear under penalty of perjury that the content was stolen from them, he said.
The take down notice is then sent to websites like YouTube that published the work. That entity must then immediately remove it.
If websites do not comply with the DMCA process it could be held responsible for violating copyright law as well.
But the person who posted the content has a right to appeal and claim it is not stolen material or is allowed under fair use criteria.
If that occurs the material then gets placed back online.
The victim then has to go to federal court and sue under copyright infringement.
Under the law someone whose material was stolen can sue for damages that range between $750 and $30,000 per piece of content, Neill said. If someone is found to have willfully infringed the copyright — which requires a very high standard — they can receive up to $150,000 plus attorney fees.
The practice of reposting someone’s work is very common and something many people may not even think twice about doing or know it’s illegal, Neill said.
“We live in a cut and paste society,” he said. “People are used to seeing content cut and pasted and shared.”
Another way to protect material is to register it with the U.S. Copyright Office but each material requires a fee of $55, which can be costly for someone who makes multiple videos a week or month, Neill said. The copyright holds if it’s done within 90 days of publication or before the infringement occurs, he said.
“If it’s $55 per video, you have to figure out if it’s worth it for every video,” he said. “If it starts taking off (on popularity) then maybe you should register it.”
There are situations in which someone else’s material can be used, such as if it’s under the federal “Fair Use” law that allows people to use a piece of protected material — if the person is commenting, doing a news report or rewriting it, he said.
Some users also allow open source content licensing that give people permission to use their work as long as they are properly credited. This can give the content maker valuable exposure, Neill said.
“Sharing your content can be a business model,” he said.
Abusing the System
The process is beneficial for the intermediary websites that post content like YouTube or Vimeo because they do not have to get in the business of determining what is and is not stolen.
With the enormous amount of volume posted online — YouTube receives about 100 hours worth of video every minute and 6 billion hours of video are watched monthly — it would be practically impossible to view every video and determine the rightful owner.
However, the process does tend to favor production companies with a lot of resources that can intimidate people to take down content — even if it’s permitted, Neill said.
Neill said “DMCA abuse” exists and is used by entities who file nuisance take down notices so people won’t use their work.
The attorney has represented individuals who have used snippets of films and turned it into their own work for parodies. But motion picture studios have submitted DMCA notices — even in a situation Neill feels is a pretty clear case of Fair Use.
“From our standpoint we do see a fair amount of abuse,” he said. “We do not see very much to penalize people from abusing DMCA.”
Che Pinkerton, president of DMCA.com, a Canadian company that handles DMCA take down notices for clients, said he has found there is a lot of false assumptions regarding the amount of abuse.
The Victoria British Columbia based company provides materials for individual people to file take down notices and handles accounts for clients that produce a high volume of content.
He estimates nuisance notices that his company has experienced are less than 10% but declined to say how many the company deals with.
“We have not experienced (an amount) as high as estimated (by others),” he said.
Tracking Your Work
There is technology that exists that allows people to track their work’s data files and also know where the videos are being posted and shared.
Pinkerton said his company doesn’t track his clients’ work but uses similar technology to assist people who are victims of “revenge porn” — the practice of jilted lovers posting explicit pictures of their exes online after a breakup.
When McNamara and his wife realized their video was stolen the couple was shocked, but with the video already receiving millions of hits they realized they should at least get some benefits from the video’s success.
Instead of asking YouTube to remove the post, they partnered with Los Angeles-based video licensing company Jukin Media and had all monetization of the video directed to them.
“Never having experienced such mayhem we didn’t know what to do,” McNamara said. “Finally, we agreed if anyone is going to make money from all this we would share the benefits with the group of mates from the trip.”
Jukin, the video licensing company, was able to identify McNamara as the original poster through its Rights Management team that developed computer programs to track the content.
Christina Smith, Jukin’s head of content acquisition, told The News whenever they identify a video they feel could be used by their clients in entertainment, media or advertising they start the process to find the rightful owner.
“We never assume that person uses YouTube,” she said.
The staff will conduct some “detective work” that includes some software and manual research and many times they discover the person who posted the video on the website is not the person who shot it, she said.
“Oftentimes, the content owner has no idea that there is another version of the video out there,” she said. “Other times they’re well aware that it’s been stolen and look to Jukin to help protect the video.”
YouTube creators can receive money from ads based on their audience. Revenues depend on where the video was seen and whether it was on a computer, mobile or another device.
McNamara said he is not sure how much money they will get from the video, but they plan to donate a portion to “Courage for Cody,” a fund for the 16-year-old daughter of a friend who became a quadriplegic after a skiing accident.
YouTube’s solution
But there is a way to ensure your content can be protected on the world’s largest video-sharing website.
YouTube spokeswoman Zayna Aston told The News the website has a Content ID system that allows creators to protect their content from being stolen on YouTube.
So far it has redirected $1 billion from people who posted stolen work to the rightful owners that ID’s their videos.
But there is still plenty more unprotected videos on YouTube.
The system identifies the material and if any of it is used in another video the creator is notified. They can decide to have the video removed, allow it to stay on YouTube and track its performance or like in the case of McNamara’s volcano video, have all of the money from the video given to the rightful owner and away from the person that stole the content.
YouTube invested more than $60 million on the process that is used by more than 5,000 YouTube partners and 300 million videos have been claimed through the process, Aston said. The majority of people choose not to have the video removed but direct the revenue toward themselves, she said.
The amount of redirected money passed the $1 billion mark last week, the company said.
YouTube and Vimeo both terminate the accounts of people who violate copyright law three times.
The company also has a Copyright Center to inform its users on the laws.
YouTube creators told The News that the content ID system works for their videos but they still have issues with people posting their material on other websites.
Comedian Greg Benson said his content is stolen “all the time” and said he only files a DMCA takedown notice when he has the time. He said he wished other websites had systems like YouTube to identify stolen content and offer to provide the owners with its revenues.
“I’ve even had people steal videos of mine before and enter them into contests, trying to win money off of them,” he said. “Luckily I have very loyal viewers who inform me when something like that happens.”
Mitch Lewis, a member of the Kloons comedy troupe, said the situation results in serious amounts of lost revenue.
They don’t get the money from the ads in the stolen video; people who watch the stolen content don’t subscribe to their YouTube channel and when pitching advertisers they can’t use the statistics from stolen videos to show their audience.
“It’s very common. Any video that goes viral has their material taken,” the Brooklyn resident said. “It takes so much time (to file a DMCA claim). And am I going to take the time to go to court? No, absolutely not.”
Motivation for Change?
Sean O’Connor, assistant dean for Law, Business & Technology Initiatives at the University of Washington, testified before Congress in March about the need for websites to be held more accountable and do more to stop illegal content on their websites.
There are changes the companies could do but it would cost them money, he said.
“If they take (the videos) down that cuts into their advertising profits,” he said.
There are several videos that will be in the gray area regarding who is the correct owner or if it’s protected under Fair Use and that will always be difficult areas to regulate, he said.
But a major issue is the amount of obviously pirated videos that get reposted immediately after they are removed through the DMCA process — a very common occurrence, he said.
O’Connor also said he urges these content websites to pay closer attention to posters who are repeatedly flagged or who will repeatedly post so much diverse content that it’s infeasible they shot all of the material.
But he questions whether the media-sharing companies are truly motivated to remove the content since all views — whether it’s by the original creator — provides revenue for its websites.
If there is technology to identify these files and trace where they are being shared then they should be able to know when something is being uploaded multiple times on its website, he argues.
“I think the technology obviously exists or is so clearly on the horizon that it will exist soon,” he said.
The measures would benefit websites — especially many of O’Connor’s start-up clients who are unaware of the amount of time they will spend handling DMCA take down notices and often get overwhelmed.
“I get skeptical when they tout their technology on one hand and say ‘this is why you should work with us or put your information (on our website)’ but when you talk about DMCA protection they say it’s too hard to do that,” he said.
jlandau@nydailynews.com Follow on Twitter @joelzlandau
USING A MOBILE DEVICE? CLICK HERE TO SEE THE VIDEO OF PHILLIP McNAMARA’S VOLCANO EXPLOSION.
CLICK HERE FOR YOUTUBE’S VIDEO ON ITS CONTENT ID SYSTEM.
