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YouTube urges judge to dump race discrimination case by Black content creators

A federal judge acknowledged racial discrimination in YouTube's algorithms is plausible. But did Black content creators make a case it's happening to them?

SAN FRANCISCO (CN) — Lawyers for Google urged a federal judge on Thursday to dismiss a lawsuit by several Black video producers who say YouTube's algorithms are rife with racial bias.

The content producers filed a federal class action in June 2020 accusing YouTube and its parent Google of using racial profiling in algorithms and artificial intelligence to filter and censor their video content so it reaches fewer viewers, similar to improper censorship of LGBTQ+ content creators the tech giants said was fixed years ago following a 2019 federal lawsuit.

But the plaintiffs in the present lawsuit claim YouTube never fixed its “targeting” of minority content creators and restricts access to their content because it competes with sponsored content and “click per minute” advertising revenue.

“Instead of ‘fixing’ the digital racism that pervades the filtering, restricting, and blocking of user content and access on YouTube, defendants have decided to double down and continue their racist and identity-based practices because they are profitable,” the plaintiffs said in their original lawsuit, which has been amended numerous times.

“By utilizing their unilateral control over 95% of the world’s public video content, defendants unlawfully misappropriate viewers, clicks per minute, advertising, and other revenues that belong to, or would otherwise be available to, plaintiffs and other third-party users, but for the discriminatory restrictions that unlawfully restrict and block plaintiffs’ content and access to YouTube services,” the complaint states.

On Thursday, the plaintiffs' attorney Peter Obstler — in what he told U.S. District Judge Vince Chhabria was probably his last case before he soon retires — pitched his argument for going to trial. Acknowledging that Google isn’t “a racist bastard,” Obstler said YouTube has a problem but wondered if it had been fixed.

“I do believe there is something else going on here. The risk of digital redlining is going to get worse, not better,” he said pointing to Elon Musk’s recent banning of numerous journalists from the Twitter platform.

At the beginning of the hearing, Chhabria told both parties that there seemed to be three issues. Did Google make a contractual promise through its content guidelines, have the plaintiffs shown their content was erroneously restricted or demonetized, and have they shown that they were treated differently than white content producers.

“To me, the idea that YouTube’s community guidelines are applied in a racially discriminatory way is plausible,” Chhabria said, but asked Obstler: “Have you adequately alleged that your clients are being treated differently in community guidelines from white people?”

Chhabria then referred to a chart produced for the plaintiffs by a third party which listed numerous videos taken down by YouTube or demonetized and comparing them with similar videos produced by others and treated differently by YouTube. The purpose of the chart, Chhabria noted, was to illustrate that a number of the plaintiffs’ videos were restricted and similar videos posted by white people were not.

The judge asked if Obstler had paid for the chart — he had — and criticized it as incompetent.

“If I got this chart and I did an apples-to-apples comparison, I would say I am not paying for this. It’s a joke,” Chhabria said. “You can see it’s not an apples-to-apples comparison. The chart is already a very small sample size so there are already questions about how small the sample size is.”

Obstler replied, “The chart is a summary of the evidence. Don’t you think it depends upon the reason?”

Chhabria said he didn’t understand.

“This is all I got,” Obstler said — a phrase he would use several more times before the hearing was over.

Google attorney Brian Willen agreed there had been problems in the past with the algorithms used by YouTube to sort videos but noted the videos the plaintiffs used to compare with their own were still outside an apples-to-apples comparison. Willen pointed out that some of the videos the plaintiffs identified in their comparisons were videos produced for TED Talks or Comedy Central.

“Beyond that, there is a different problem,” Willen said. “The premise that these are white videos is not alleged.”

And Willen noted some feel YouTube has restricted too much of their content and others don't think YouTube is restrictive enough.

“To say they are racially charged is a serious thing,” he said. “You have to come forward with a truly plausible showing that race was part of the decision-making process. I would want to see some real statistical occurrences; the chart undermines their claim more than it supports it.”

Chhabria didn't indicate how or when he would rule.

Categories / Courts, Technology

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