Anime content creators on YouTube have been entrenched in a brutal fair use battle with aggressive Japanese copyright owners for a while now, but as one content creator tells it, things are starting to get out of control. Japanese companies don’t want YouTubers using their footage. YouTubers need clips to critique, parody, and craft all sorts of content. While some anime YouTubers in recent bouts against Japanese companies successfully argued that their content falls under transformative fair use, others are facing what they’re calling “The Shopro gambit.”
To understand where anime YouTube is now, we need to look back on events that transpired in late 2021. Back in December of last year, Mark Fitzpatrick, a popular anime reviewer from the YouTube channel Totally Not Mark, got hit with 150 copyright strikes by Toei Animation–a grave number that would normally shutter a channel. Fortunately, however, YouTube stepped in and started enforcing a policy that gives content creators a bit more wiggle room when faced with legal removal requests from copyright owners. The new YouTube’s policy allows owners like Toei to have videos from content creators removed from YouTube only in places like Japan, where the copyright holder resides, while allowing videos to remain up in other territories that have fair use policies.
While this policy was heralded as a win for content creators, legal action dubbed the “Shopro gambit” has everyone scared once more. According to Suede, a New Zealand YouTuber who’s been making Pokémon and anime parodies for eight years, the legal strategy goes well beyond allowing Japanese companies to circumvent YouTube’s copyright policy. The tactic, if implemented successfully, could force content creators into a prolonged, financially taxing international court battle that could jeopardize YouTube channels of any size. Although this strategy has apparently already claimed the likes of Suede’s moderately sized YouTuber channel, as he noted in a series of tweets, he is now trying to warn others about the tactic out of fear that it might gain traction. Given how aggressive Japanese companies have been in the past regarding copyright ownership, he thinks every anime content creator, big or small, is on the chopping block as well.
The “Shopro gambit,” as he calls it in the video, naming it after the production company behind the Pokémon anime, is essentially a slapp suit which is commonly used to intimidate a defendant from fighting back against a plaintiff. While the thing could go to court, the strategy assumes that the defendant will consider it too much of a hassle to pursue.
If other Japanese companies decide to use this legal action, they can circumvent YouTube’s counterclaim system and fair use policy to bully content creators both small and large. The fear is that, by doing so, these companies can have beloved channels purged from the platform, even if ostensibly some of these content creators not only love anime, they also provide free PR for their media. While it’s a fairly common legal tactic, many YouTubers are independent creators who may not have the resources to fight back–so there’s a sense of urgency in seeing big corporations start to adopt the tactic.
“From this point on, there are a million swords hanging over a million heads all held up by a single hair each. They might never drop, but they might also all drop tomorrow,” he said.
In YouTube-speak, Suede has three months to decide whether he wants to:
1) Ignore Shopro’s small claim and have his channel taken down anyway
2) Fight Shopro by hiring a Japanese lawyer to contest fair use for his videos under Japan’s strict interpretation of the policy and likely go bankrupt in the process
3) Pay Shopro ¥80,200 ($700 USD, and $1000 NZD) and set a precedent for other aggressive copyright owners to issue anime YouTubers financially draining legal action of their own.
Suede has yet to decide how he wants to proceed with the claim but has come to terms with his channel being deleted and has created a new channel. Although the future of anime YouTubers looks uncertain, Suede started the hashtag #Geoblocking4all on Twitter as a call to action for YouTube. Currently, only content creators participating in MCNs can geo-block their content to help prevent the ire from aggressive companies, but Suede argues that YouTube should allow all content creators to geo-block content to prevent this from occurring in the future.
But if this solution comes to light, it isn’t foolproof. Suede said this solution can “open up another massive can of legal worms’’ by allowing piracy to run rampant on YouTube if it doesn’t single out geoblocking Japan.
The only other alternative would be for anime YouTubers to not use any video, audio, or imagery from any Japanese I.P. forcing creators to shoot their content like a TV talking head in front of custom assets or “nothing at all,” which would effectively be a change for the worse for the anime YouTube community, according to Suede.
“Youtube is in a really bad situation too, and it needs to make a decision relatively quickly,” he told Kotaku. “It either needs to allow geoblocking to all users so that [they] aren’t at the complete mercy of Japanese rights holders, or continue its current policy, which could result in an entire demographic being purged from its base.”
A YouTube spokesperson told Kotaku, “When YouTube receives a valid lawsuit regarding a creator’s content that allegedly infringes copyright, we may remove the content until there is a legal decision, which is what we’ve done in this case.” We also reached out to Shopro but didn’t hear back by time of publication.
“Youtube used to be a place where people could share a lot of transformative content that brought us together as fans, with content like reviews, music videos, fan art and parodies giving us a sense of community,” Suede told Kotaku. “But with this suit, a switch has been flipped and I feel like a harbinger of the end times.”
Update: 2/7/2022 10:50 a.m. ET: The post has been updated to include a comment from YouTube.