There really needs to be a process of recourse against companies that overzealously flag things to have them removed. Yes, its often an automated process- but are we so far down the path of automation that there is no responsibility any more?
I seem to recall reading that (1) the DMCA is not being used for YouTube takedowns (YouTube has its own takedown process that doesn't have a possible penalty of perjury), and (2) an automated process won't ever meet the bar for penalties under the DMCA.
Obviously I'm not a lawyer, and I'd love to see someone turn the tide with a solid victory against a false DMCA or non-DMCA takedown. Corrections welcome.
(1) yeah, that doesn't sound right to me. a DMCA takedown notice by any other name is still a DMCA takedown notice. the specifics that you might find in the statute are the floor (a minimum) so of course YouTube is free to develop their own takedown process that goes above and beyond but it doesn't mean it's somehow opted out of the copyright statutory scheme.
What I mean by (1) is that if you ask a mutual friend to display a picture I took in her gallery, I ask her politely to take it down, and she voluntarily complies with my request, the DMCA wasn't involved at all. This is how I understand the arrangement between YouTube and the 800lb copyright gorillas.
Your example isn't really a good one because your friend isn't a service provider, she's an uploading user to a service provider. So yes, when you go right to the source user, you are somewhat circumventing the DMCA process but imagine how inefficient that is in the most common cases.
The point of implementing a proper DMCA notice and takedown system is to take advantage of the DMCA safe harbors. I guarantee YouTube, as a service provider, isn't NOT taking advantage of the DMCA safe harbors and claiming its notice and takedown procedures help to qualify it for such (perhaps even stronger than the default, perhaps not).
Your example isn't really a good one because your friend isn't a service provider, she's an uploading user to a service provider.
By "gallery" I mean a physical art gallery, so she would be a service provider in my example. In the analogy, she would be YouTube, "I" would be a copyright holder, and "you" would be a YouTube user.
The point of implementing a proper DMCA notice and takedown system is to take advantage of the DMCA safe harbors.
The safe harbor, as I understand it, protects service providers from copyright holders and users, as long as the service providers register a copyright agent and comply with DMCA notices. Nobody's saying that YouTube doesn't have a registered agent and comply with DMCA notices. Further, there is almost certainly a point in YouTube's ToS that exempts them from liability for taking down content regardless of whether it was due to a DMCA notice.
What I'm saying is that YouTube has an additional, private, voluntary takedown process, that doesn't invoke the DMCA at all (and thus no penalty of perjury for falsely claiming to represent the copyright holder). Having this additional process wouldn't jeopardize their safe harbor eligibility, as I understand it.
I don't like this situation. It gives enormous power to large copyright holders, with significant collateral damage to independent creators like the Blender Foundation. I just don't see how a case made under 512(f) will turn the tide.
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Maybe I'm misreading the DMCA as a layperson, but it looks like there are two penalties for false DMCA takedowns, neither of which would apply to a voluntary, non-DMCA takedown process: (1) perjury for falsely claiming to represent a copyright holder, and (2) liability under 512(f)(1) for "knowingly materially" misrepresenting a claim.
Perjury for falsely claiming to represent a copyright holder comes from this section (apologies if my citation notation is incorrect):
501(c)(3)(A)(vi) A statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
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Liability for damages for a "knowing material" misrepresentation comes from this section (emphasis mine):
512(f) Misrepresentations.— Any person who knowingly materially misrepresents under this section—
(1) that material or activity is infringing, or
(2) that material or activity was removed or disabled by mistake or misidentification,
shall be liable for any damages, including costs and attorneys’ fees, incurred by the alleged infringer, by any copyright owner or copyright owner’s authorized licensee, or by a service provider, who is injured by such misrepresentation, as the result of the service provider relying upon such misrepresentation in removing or disabling access to the material or activity claimed to be infringing, or in replacing the removed material or ceasing to disable access to it.
First, I never even considered that you meant gallery in the traditional sense. Just sounds like that app I use all the time, ha!
Second, I get that you are saying that this is some extra, additional, voluntary system - but I also don't see how that's possible. Copyright only exists as a legally recognized utility. Think about what you're saying. It would mean that YouTube is allowing people to say they should be empowered to direct action be taken with respect to some specific content that's been or could be uploaded by another, but it's not because that power is called copyright protection, through which the DMCA is the relevant scheme of copyright protection. It's because they just have some extra volunteer system that says if you want this taken down, they'll take it down.
Maybe you need to explain the actual YouTube system to me better because I'm a lawyer and I can analyze the law well enough for myself.
No, it's really not a DMCA takedown notice. DMCA takedown notices are a mechanism whereby a hosting company can qualify for the safe harbor provision of the DMCA. If they comply with the rules of handling such notices they are not liable for any copyright violations of their users.
Youtube will still comply with those, or face liability, but they offer this tool to content owners that register with them. As such, it is not a DMCA takedown notice and is not subjected to the penalties of perjury that are laid out in the DMCA's rules about takedown notices. That doesn't mean that no law applies, just that the DMCA's specific rules for DMCA takedown notices don't apply.
One question I would love an actual lawyer to answer or comment on is: Does Youtube's prevalence make them a common carrier or have similar implications?
Caveat: I am an actual lawyer, I'm just not providing any legal advice to anyone.
"but they offer this tool to content owners that register with them. As such, it is not a DMCA takedown notice"
The first part of what you said is exactly who DMCA takedown systems are for so I'm not sure I see the "as such" logic. The DMCA takes the uploading user into account almost never, except when they become repeat offenders or "red flags" otherwise. It's sole purpose for existing is to appease content owners.
You're intertwining "notice and takedown" with "safe harbor". They are two different sides of the coin. The former gives content owners power and the latter gives service providers a defense.
Yeah, the "as such" was superfluous. And you're correct (if I may put words in your mouth) that the DMCA was drafted for (and by) content owners first, service providers second, and the public at large a distant third.
What I thought, but I now have doubts about, was that because this takedown service that Youtube provides was in addition to compliance with regular DMCA takedown notices it would not be subject to the same rules.
"You're intertwining "notice and takedown" with "safe harbor"."
The point of the takedown system under the DMCA is that compliance with it guarantees (to some extent) safe harbor so I'm not sure how to separate the two.
What do you mean by 2)? I can't tell if you're saying that automated processes don't meet the bar for avoiding penalties or don't meet the bar to be penalized.
I mean that, as I recall reading, an automated takedown process doesn't meet the bar of "knowingly materially" misrepresenting a claim. "Knowingly materially" is the pair of adverbs used in 512(f) (http://www.law.cornell.edu/uscode/text/17/512#f), and if I recall correctly, is a very high threshold.
Who designs and implements the automated takedown system? YouTube
Who enters content into the automated system such that it becomes a claim of copyright infringement and a takedown request? The content owner
You are saying that you recall reading that submitting content through something like YouTube's system will never meet the bar of "knowingly and materially" misrepresenting a claim? I doubt it.
How about this scenario:
Litigation reveals this email from the CEO - "Watch this guys, I totally don't own this clip and I know I don't own this clip but I'm going to submit it through Content ID anyway and get every hit taken down immediately"
Happened to me twice, songs that i created all by myself,without any samples or whatever were blocked on youtube because a third party claimed some copyrights on this,and there is nothing I could do.
Youtube has serious issues with abusive take downs.
A few years ago, I created a Vimeo account for a company I used to work with at the time. It was used to upload a video that similarly was found to contain copyrighted content. Vimeo deleted the account on the spot. So as bad as YouTube can be, it can get worse.
I have a Big Buck Bunny upload to youtube (from some codec testing) and every couple months some copyright troll flags it and tries to collect advertising revenue, which also takes down the webm version of the video (because until recently youtube couldn't put ads on those). Fixing it wastes hours of my time and youtube never stops the trolls or even responds to my requests for information about them so _I_ could take them to court.
I've also faced a YouTube content ID match the other day. In my case, it was a bit more warranted -- a 30 second clip of a 2003 episode of The Simpsons, which I wanted to be able to refer to. Content ID matched it, I filed a dispute citing fair use, somebody from Fox submitted a DMCA takedown.
Yet while I say "being more warranted" it still holds that such a citation is legal in my country.
I would really welcome services that are able to work internationally and yet will make it easy for me to share information based on the laws of the country I live in.
(The reason for the services being international is simply the wish that they'd survive -- we have seen time and again that local websites die down as a large international one (YouTube, Facebook) picks up more and more users.)
When I was picking between a PS4 and an XBox One (I'm a casual gamer at most), Sony's actions like this over the years are what swayed me to get the XBox; I just couldn't in good faith support Sony. No, it's not lost on me that the XBox is made by Microsoft: I think that says alot about my opinion of Sony.
Remember that we're talking about digital video/audio fingerprints here, so it's not just a case of "someone uploaded a video with Sintel in the name".
The question is why Sony would be uploading a copy (or a content ID fingerprint) of an open-source work to YouTube and claiming it as their own.
YouTube's ContentID would appear to be Working As Designed. The problem is that Sony would appear to have falsely claimed title to a work that is not theirs. It's for Sony to work it out, and for the uploader to quickly and immediately hit the 'dispute' button, which effectively then moves the situation back to Sony to "put up or shut up".
I'm not sure that the best way to deal with this situation - which is clearly an error and nothing more - is to run directly onto twitter and start screaming about there being no better reason to support open movies and urging everyone to "donate now" though.
This happens all the time on YouTube with all sorts of video. For instance, any time something happens with space, news channels end up flagging public domain NASA footage as their own.
I understand the sentiment, but I think it's a mistake to think as Sony as one entity. I don't mean this is in the "there's scumbags and there's good people too" rosy way, Sony is really not one corporation but a constellation of indepedantly acting entities.
The Xbox business unit and the Windows unit are in the same organisation. Sony's playstation unit and movie business are not even the same company.
Corporations are often made up of more than a hundred thousand people, divided between thousands of things.
I highly doubt anyone that has anything to do with SCEI had anything to do with anyone in Sony Corporation.
I don't understand how people have opinions on a fucking corporation. I don't think Jack Tretton is yelling at the legal department of another company. Besides, the consoles basically act as brand identity tools for Microsoft and Sony. Microsoft's gaming divisions only posted a small profit for 5 years and Sony only posted a profit during the height of the PS2.
An entity that files false copyright claims can face legal consequences:
> Misuse of this process may result in the suspension of your account or other legal consequences.
That said, this was probably a ContentID claim, which means the video / audio stream matched something similar-looking from Sony according to software designed by Youtube, in which case Sony isn't liable. That system is plagued by false positives since day 1.
In which case, since Youtube users agreed to the TOS, no, they are not allowed to sue for libel:
> YouTube shall not be liable to you for […] the deletion of […] any Content […] maintained or transmitted by or through your use of the Service
We've had DRM hell, lots of proprietary crap (media formats/interfaces/software), impossible to get parts for most machines after a year (I've repaired a lot of Sony kit), poor support, stuff that doesn't actually work properly ever, screwing of Linux PS users, massive leaks of data, shoddy engineering at best, predatory behaviour as a media publisher and possibly the worst user interfaces of any devices ever.
Why? Apple doesn't DRM any of the music on iTunes. It must DRM the video, just like all other video services because it's mandated by the copyright holders (like Sony). Parts for Apple computers going back many years are readily available (I recently replaced a video card on a 6 year old Mac myself); their support is rated above all other computer manufacturers by people who actually have used it; their computers, phones and tablets work as advertised. Care to explain what you actually mean?
