Cops are playing music during filmed encounters to game YouTube's copyright striking

The police are attempting to use YouTube's stringent copyright system to keep people from posting recordings of encounters with law enforcement.

In a video posted Thursday by the Anti Police-Terror Project (APTP), a community organization dedicated to defunding the Oakland Police Department, Alameda County Sheriff's deputy David Shelby pulled out his phone and began playing Taylor Swift's "Blank Space" during an encounter. He openly admitted, "it can't be posted to YouTube."

"Are we having a dance party right now?" APTP's policy director James Burch asked in the video, which is posted on YouTube.

"Are you playing pop music to drown out the conversation?" the person recording asked.

After a back and forth, the deputy said, "You can record all you want, I just know it can't be posted to YouTube."

Burch pressed Shelby on whether the Alameda County Sheriff's Office told officers to play copyrighted music during filmed encounters. He told Burch that he was "just listening to music."

"You're choosing to listen 'cause you're such a big Taylor Swift fan?" the person recording responded.

Burch pressed Shelby again, asking if he was playing music to "make sure this wasn't posted on YouTube."

"That's correct. That is correct...I'm playing my music so that you can't post it on YouTube," Shelby responded.

Burch was "incredulous," and told Mashable he's "still incredulous now." And because of YouTube's convoluted copyright policies, actions like this may prevent vital police encounter videos from spreading.

Bystander videos of police encounters are a crucial tool for accountability and civilian protection. Darnella Frazier's recording of George Floyd's death was crucial evidence to convict Derek Chauvin of murder. Minnesota Attorney General Keith Ellison and lead prosecutor in the Chauvin trial described the video as an "indispensable" piece of evidence, and said he had "real doubts" that the world would have known the truth of Floyd's murder without it.

Recording the police has become the norm in the last decade, and officers have discouraged onlookers from doing so with harassment and violence. While filming the police is legal "as long as you're not interfering with their activities," University of Maryland law professor Mark Graber told NPR's Code Switch, what constitutes as interference is unclear. Law enforcement across the country have responded to journalists, protestors, and even bystanders who record their actions by demanding they delete the videos, confiscating their phones without a warrant, and detaining those who resist.

Amid growing support for police reform, it appears that law enforcement officers are taking a more indirect approach to discouraging the spread of bystander videos.

The above video was filmed during a pre-trial hearing for San Leandro police officer Jason Fletcher, who was charged with felony manslaughter last year for fatally shooting Steven Taylor, a Black man who was "acting erratically" in a Bay Area Walmart. Taylor's family told the San Francisco Chronicle that he was "suffering a mental health crisis and did not represent a threat to officers or the general public." Rather than de-escalate the situation and connect Taylor with mental health professionals, Fletcher pulled out his gun.

Burch told Mashable that the gathering outside of the Alameda County Superior Court wasn't even a protest. Because of COVID-19 restrictions, he said, a limited number of people were allowed to sit in the courthouse, so Taylor's supporters, extended family, and other community organizers gathered with banners and coffee to listen to the broadcasted hearing. The confrontation in the video began when the deputy asked organizers to remove their banner showing support for Taylor, claiming it was a "tripping hazard."

"So I'm like, 'Are you genuinely concerned or are you just trying to cause trouble?' Basically just trying to figure out what's going to happen here," Burch recalled. "And then that's when he took out his phone."

Burch noted the speed with which the deputy began playing music to disrupt filming. Shelby reached into his pants pocket, and with three taps, began blasting "Blank Space" at full volume. He then tucked his phone into his chest, between the buttons on his shirt, with the speaker pointing toward the person filming.

"I really, really could not believe what was happening, just how quickly he had taken out his phone. And it wasn't like he had...to load [the song]," Burch continued. "His phone was pre-loaded to this. As soon as he saw the camera, he grabs his phone and presses maybe two buttons and Taylor Swift is playing...This person was ready for this."

Burch added that Shelby's readiness concerned him, and he stopped engaging as soon as the deputy admitted why he playing music. Burch "didn't believe it was safe to continue engaging with officers who were clearly out there trying to escalate."

The Alameda County Sheriff's Department did not respond to Mashable's request for comment on whether officers are being instructed to play copyrighted music when they're being recorded. Burch noted that Shelby may have learned of it from police forums or private Facebook groups, which are rampant with hostility toward the Black Lives Matter movement.

Police officers have used this tactic before. When Los Angeles organizer Sennett Devermont, who runs the Instagram account Always Film The Police, started livestreaming a conflict while filing a Freedom of Information Act request form at the Beverly Hills Police Department. During the livestream, an officer identified as Sergeant William Fair started playing "Santeria" by Sublime from his phone. The Beverly Hills Police Department told Vice that the "playing of music while accepting a complaint or answering questions is not a procedure that has been recommended by the Beverly Hills Police command staff."

Posting copyrighted music is subject to removal on Instagram, even if it's playing in the background. Livestreams are a gray area, and per policies updated last May, recommended using shorter clips and ensuring the livestream included "a visual component to your video." Recorded audio "should not be the primary purpose of the video."

Taking a clip from the livestream and posting it online, with the music in the background, is met with varying restrictions depending on the platform. YouTube's copyright policies are uniquely poised to put those filming cops at a disadvantage.

A YouTube spokesperson told Mashable that they "don't have anything to share regarding the specifics" of the video posted by APTP, instead deferring to the company's policies posted online. The policy states that creators "should not upload videos they didn't make, or use content in their videos that someone else owns the copyright to, such as music tracks, snippets of copyrighted programs, or videos made by other users, without necessary authorizations." Copyright owners can submit a DMCA complaint online, which will prompt YouTube to remove the video and issue a copyright strike. If a creator racks up more than three strikes in 90 days, their account will be terminated.

YouTube also uses automatic systems called Content ID and the Copyright Match tool, which automatically notify copyright holders of "user uploaded videos that may contain their creative work" based on reference files submitted by the copyright holder. Content ID users can preemptively decide whether to leave the videos alone or issue a copyright strike.

While YouTube does account for Fair Use — a U.S. law that ensures people can use copyrighted material without permission if it's for "commentary, criticism, research, teaching, or news reporting" — the platform is notorious for striking creators automatically. Commentary creators in particular have complained that the copyright striking system works against them because anyone can file a DMCA takedown on a video, regardless of whether they actually own the copyright. Videos that do fall under Fair Use, like creators teaching viewers how to cover a song, can still trigger YouTube's automatic copyright strike.

Audio is also less likely to slip through copyright filters, as the Electronic Frontier Foundation (EFF) noted in a whitepaper about how YouTube's Content ID discourages Fair Use. EFF, a nonprofit focused on defending digital civil liberties, wrote that YouTube "has effectively replaced legal fair use of copyrighted material with its own rules." Content ID disproportionately affects audio, because it's easier to match than an audiovisual clip. Classical musicians, for example, are driven off YouTube for playing public domain compositions that may match copyrighted recordings by other artists. EFF denounced Content ID as a "loophole to be exploited by authorities" in a post about Devermont's livestream, suggesting that police could use songs by rightsholders who are "infamously controlling and litigious."

The potential for a copyright strike, however, should not discourage bystanders from continuing to record the police. Video evidence is not only an act of protest and self-determination, but also desperately needed to hold law enforcement accountable.

"If they're going to attempt to shroud their actions in secrecy, we are going to make sure to let the world know of what the Alameda County Sheriff's Department is up to," Burch said.

As of Thursday — despite Shelby's insistence — the video is still up on YouTube.