27 November 2019

On 11 November 2019 we were asked by Kotaku to make a statement regarding the changes YouTube recently announced to its terms of service, planned to take effect worldwide on 10 December 2019. Although YouTube said to The Verge that the terms changes do not reflect planned changes to “the way our products work, how we collect or process data, or any of your settings,” we’re posting our statement here in full for archival purposes. Especially in light of Google management’s decision to fire four employees for what Google claims is data security violations, but what many employees suspect is illegal retaliation for organizing to improve working conditions, we believe it’s reasonable to be skeptical.

The new clause allowing YouTube to “terminate [a user’s] access. . . if YouTube believes, in its sole discretion, that provision of the Service to [the user] is no longer commercially viable” is startling and deeply troubling.

The introduction of this clause shows how necessary, relevant, and timely the FairTube proposals for more fairness and transparency are.

For reference, the proposals, which we advanced in late July 2019, are:

• Publish all categories and decision criteria that affect video monetization and views
• Give clear explanations for individual decisions (for example, if a video is demonetized, which parts of the video violated which specific criteria in the Advertiser-Friendly Content Guidelines)?
• Give Youtubers a human contact person who is qualified and authorized to explain decisions that have negative consequences, and to fix them if they are mistaken
• Let Youtubers contest decisions that have negative consequences (for example, via a written statement - this would be a response to the “clear explanation” for the decision provided by YouTube)
• Create an independent mediation board for resolving disputes, as other digital platforms have done
• Create a way for Youtubers to formally participate in important decisions, such as a Youtuber Advisory Board

The fact that YouTube again introduced a major change to the relationship with creators without discussion or warning is in our view unacceptable.

YouTube calls Youtubers “Partners” and legally classifies them as self employed, independent video creators. However, such a major unilateral change to contract terms without discussion is not consistent with a relationship with equal, external “partners.” In true partnerships, when one partner wants to change the contract terms, they negotiate with the goal of reaching a mutually agreeable solution. If most Youtubers were truly economically independent video production businesses, YouTube would not be in a business position to impose such major terms changes unilaterally.

Like other gig economy platforms such as Uber, Instacart, and Rev, YouTube exercises nearly entirely unchecked managerial power over its workforce as if they were employees, but its workforce receives none of the benefits of employee status. We are not calling for Youtubers to be classified as employees. But YouTube must provide more transparency, accountability, and dialogue for Youtubers’ real situation to be consistent with the rights and freedoms accorded to the truly self employed. We have been saying this since July and the introduction of the new terms shows how reasonable, justified, and necessary our proposals are, especially the proposal to create a way for Youtubers to participate in important decisions such as this one.

The new clause also adds news relevance to our first proposal, which is generally a call for clear rules. Just as we have seen repeatedly in the enforcement of the Advertiser-Friendly Content Guidelines, YouTube has created a vague rule that it may enforce how it sees fit, closing accounts and destroying entire livelihoods - years of work - in seconds, without explanation or recourse. We have no signal so far about how the phrase “commercially viable” will be interpreted. It could simply mean closing “dead” accounts, or it could mean the closure of channels operated by groups YouTube perceives as undesirable for one reason or another.

We call on YouTube management to clarify the motivation and reasoning behind this clause, its intended application, the criteria and procedures YouTube intends to use in evaluating users’ “commercial viability,” and what procedures will be available for users to contest applications they believe are inaccurate or otherwise unfair. Especially for such drastic cases as account closure, our demand for mediation via an independent body is extremely relevant.

YouTube’s business policies seem, sadly, to be getting worse. Even as viewers and creators call for more transparency and accountability, management has introduced this new vague clause which gives them unfettered, unaccountable power. As the German lawyer Rüdiger Helm said recently in a gig economy case before the Bavarian State Labor Court in Nuremberg, the “Damocles sword of deactivation hangs over every platform worker.” We would add: when the platform operator reserves the right to deactivate an account at their sole discretion according to vague or unspecified criteria, with no right to contest, workers are living in a kafkaesque algorithmic bureaucracy.

We should indicate finally that legislators in both the European Union and California have been taking steps to check the unilateral power of platform operators, and this behavior is not compatible with the foreseeable evolution of the regulatory context.