In September 2018, the Verge posted a video that was designed to show people how to build a PC, which was full of errors and mistakes. Some were inconsequential or considered bad practice, like having bad cable management which might impede airflow but wouldn’t necessarily impact performance. Some would cause performance problems but not damage, like putting the GPU in the wrong PCI-e slot. And some issues could cause irreversible damage, like using the wrong screws on the radiator, which could potentially penetrate the radiator tubing and cause coolant leaks. The internet quickly began criticizing this video for its flaws, making parodies and reaction videos, and the Verge disabled the comments on the video before ultimately taking it down, amending the accompanying article noting that the video wasn’t up to their standards. Paul’s Hardware did a very good summary of the video and the reaction to it. The internet made fun of it for awhile, and everyone largely moved on. Until this week.
On Tuesday evening, Kyle from the YouTube channel Bitwit tweeted that the Verge had used YouTube’s copyright strike system to take down his reaction video. The Verge did not issue a statement or public comment to this, but about a day later, the claim was reversed after being disputed. According to Bitwit, YouTube disputed that the video fell under fair use for transformative purposes (which will go on to be disputed by the Verge later). They also took down a video from channel ReviewTechUSA which broke the original video down and added a lot of commentary to it. Before the videos were reversed, several large tech YouTube channels posted videos about the Verge’s actions, which appeared to outsiders like the Verge was trying to censor criticism, as the videos were both transformative, critical, and highly viewed.
This morning, editor-in-chief Nilay Patel finally issued a statement on behalf of the Verge. In it he says that the legal team at Vox Media (the parent company of the Verge) found these videos and decided that they were not fair use, and issued copyright strikes to YouTube under their own purview. Later, when he was notified of these strikes, he had them rescinded despite believing that the legal team was correct in thinking that they did not fall under fair use. He then spent the morning responding to tweets about the issue, including my own, which were almost entirely negative.
Now, I’ve generally liked the Verge and Nilay Patel’s work, and have defended him and his position strongly when I agree with him. And after thinking about it, in some ways I can understand where they’re coming from. If we assume they’re being truthful in their public statement, they saw some videos, they felt they were not fair use, they tried to take them down. But their process failed in a few fundamental ways.
First, they saw these videos which had commentary and critique and determined them to be copyright infringement worthy of a copyright strike, which is YouTube’s most serious offense. Fair use is always a grey area, but at least one precedent of a reaction video as fair use has been set, and I think most reasonable people would agree that these videos are fundamentally and substantively different from the Verge’s video, as parody and/or as critique. Leonard French, a copyright attorney who has a large YouTube channel talking about copyright law, also calls it “obvious fair use to me”.
Second, in the statement, the Verge says the video is not transformative, while in the same sentence claiming that the video features a racist character. Now you can make any judgements for yourself about the content in those videos, I won’t defend them, but it’s difficult to reconcile the ideas that a work has not been fundamentally transformed while also being so transformed as to feature a character that’s offensive. Instead this is explicitly making a comment on the content, which is an exceptionally dangerous line to walk when people are saying that you’re censoring them.
Third, Patel spent the morning on Twitter talking about how he was the one who reversed the copyright strikes, rather than addressing any criticism of why they were issued by the company he is speaking for in the first place. These were large channels and the videos were critical, which probably should have raised some red flags before they were just banned at first.
Fourth, the statement talks about how the situation around the strikes could have been avoided “if the parties involved had simply reached out to [Patel] directly”, but that did not appear to happen in the other direction (from the Verge to the YouTube creators) before the strikes were issued.
Vox Media and the Verge are a large company, and they undoubtedly have large machinations moving things behind the scenes. Mistakes happen. More importantly, they got corrected. That’s good, and kudos to Patel and the Verge for ultimately reversing course and not abusing a system they themselves have criticized frequently. Going forward, I hope they apologize to the community and to these creators for using the strike system to go after these videos in question. Regardless of how they feel about the video, the Verge as an institution made a major overreach with their actions, and reversing the strikes is the minimum they should do. Additionally, it would be great to hear that they are taking steps to prevent this kind of thing from happening again, either through changes to their legal teams or communication outreach, as trying to argue through lawyers is universally slower than through Twitter threads. Finally, the Verge could take steps to right their wrongs, and partner with one or both of these creators and make a follow up to their poor PC building guide video, which could bridge the gap and turn this whole thing from a negative into a positive.
The Verge isn’t full of evil people and they aren’t trying to screw over creators, but sometimes you make a mistake. Own it and make it right.