In the series “algorithm regulation”, we discuss the implications of the growing importance of technological algorithms as a means of regulation in the digital realm. 

Yesterday, YouTube proudly announced on its blog that it had improved its “Content ID” system, which allows rights holders to automatically detect uploaded content that contains potentially infringing works, by introducing a new appeals process:

Users have always had the ability to dispute Content ID claims on their videos if they believe those claims are invalid. Prior to today, if a content owner rejected that dispute, the user was left with no recourse for certain types of Content ID claims (e.g., monetize claims). Based upon feedback from our community, today we’re introducing an appeals process that gives eligible users a new choice when dealing with a rejected dispute. When the user files an appeal, a content owner has two options: release the claim or file a formal DMCA notification.

In addition, YouTube claims to have made its algorithms “smarter” to reduce the number of unintentional Content ID claims:

Content owners have uploaded more than ten million reference files to the Content ID system. At that scale, mistakes can and do happen. To address this, we’ve improved the algorithms that identify potentially invalid claims.

These changes to YouTube’s contractual (i.e., terms of service) and technological (i.e., algorithms) regulation illustrate the delicate balancing act YouTube-owner Google is performing. Improving appeals processes and algorithms against unintentional claims counters changes made earlier this year, when YouTube announced better protection against  “infringements in the form of cropped and mirrored videos”. The Electronic Frontier Foundation (EFF) had criticized the system harshly:

Content ID, by contrast, is an opaque and proprietary system where the accuser can serve as the judge, jury, and executioner. There is an official dispute mechanism — and where it’s effective it can be easier than a DMCA counter-notice — but in cases where a user runs into a dead-end she has little recourse. The Content ID system tips whatever balance is present in the DMCA and allows even more pernicious forms of manipulation and abuse.

While the changes announced yesterday address some of the issues raised by the EFF, two particularly critical issues with regard to Google’s algorithm regulation in the case of YouTube remain. First, YouTube explained the changes in the appeals process with “feedback from our community”. However, we do not know who is considered to be part of this community because there is no formalized process of stakeholder participation. Given the importance of terms of service changes for large user-generated content platforms such as Facebook or YouTube, the time seems ripe for more transparent and formalized stakeholder consultation procedures.

Second, algorithm refinement continuously alters enforcement levels. And by increasing the enforcement level at YouTube, Google at the same time narrows the room for maneuvre for other platforms for user-generated content by re-defining the scope of applicability of safe-harbor provisions. Changing the technological state-of-the-art of automized removal of (seemingly) infringing material could thus be considered unilateral regulatory change.