Posted by: Mike P. | December 20, 2009

YouTube and the DMCA


Updated 3/14/2010:

Recently, or perhaps not so recently, many YouTubers have been the recipients of false DMCA filings. As a result, a great hue and cry has been raised that YouTube must do something to address these false filings. I am not talking about YouTube false flagging. YouTube false flagging involves a violation of YouTube’s terms of service.

Cornell law school hosts a copy of the relevant section of the law.

First and foremost, why does YouTube need to process DMCA takedown notices in the prescribed manner? YouTube needs to be viewed as a service provider in order to not be held liable for copyright violations for material uploaded by its members as laid out in sections of (17)(512)(a).

In order to file a DMCA takedown request, you must claim the information you are giving is true under penalty of perjury. Title 17, chapter 5, (512)(c)(3)(A)(vi). Knowingly filing a false DMCA takedown request is a crime. Additionally, filing a false DMCA subjects the filer to costs under (512)(f).

(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.

I am not certain how prosecution is initiated in the case of a false DMCA. If anyone has a idea, I would appreciate a comment. Please, no guesses. I can guess too!

So, when a DMCA takedown notice is properly written and presented to YouTube, what do they do?

  1. Remove the offending material
  2. Terminate the account of repeat offenders – required under (512)(17)(i)(1)(A)

You can look up the section requiring removal of the material.

It is interesting that if YouTube does not wish to be subject to liability for removal of material, it must restore material after receipt of a counter-claim within 10 to 14 days. See (512)(17)(g)(2)(C). This assumes that notice of restraining order filing has not been filed.

So, I am not aware of YouTube taking any actions as a result of receiving a DMCA takedown notice other than what is required by law in order to limit YouTube’s liability.

In my opinion, the solution to the problem of false DMCAs is to not panic. Additionally, it helps if the claims are easily provable as false. Videos in which only the author appears or uses graphics that the author generated or legally purchased for use in a public work makes a claim easily provable as false. Using portions of other’s videos can be fair use, but that is subject to interpretation and could be more difficult to prove.

Many people have argued that the law should be changed. I am not sure that is really the best choice. Right now, DMCA claims are easy to process. An ISP does not need to invest in expensive services in order to comply with the law. If the law were changed so that YouTube needed to do extensive checking to ensure the validity of a DMCA in order to avoid removal liability, would YouTube still be able to offer a free service?

And finally, have you ever been the victim of copyright violation? I helped a person file a DMCA claim once. The case was obvious, the claim self-evident. However, due to some cleverness on the part of the poster, the claim could not be filed electronically because the URL did not fit the pattern the provider expected. So, an emailed DMCA notice was sent to the duly registered recipient (Google, in the case). The claim was completely ignored because human interaction was required in order to remove the offending material. The copyright owner would have had to file suit and obtain a subpoena in order to have the information removed. Since the person does not live the United States, carrying out the filing of a lawsuit would have been non-trivial and expensive. As far as I know, the offending material is still on-line.

So, do not post copyrighted material to start with. Taking someone else’s video and
adding a few comments is not Fair Use. Most services have community guidelines. There is no point in arguing that such guidelines limit free speech. Of course they do. That is their purpose. And if someone does file a false DMCA claim, counter file and seek compensation. You probably will not receive much money, but at least one YouTube user forced another to make an apology video.

I would be interested to hear about cases where false filers were successfully sued or prosecuted for perjury.

Update 3/14/2010

A fact I did not know. In the US, you can not sue for damages unless the work is registered with the copyright office. You can register after the copyright has been infringed upon, but you can not recover court and attorney costs. If you file prior to infringement or within three months of when the work was produced, you can recover costs. Filing a DMCA is not bringing a suit.

First, the owner files a DMCA. Then, if the claimed infringer disagrees with the DMCA, they file a counter-notice. Then, then owner must file a suit. There may be more to it than this. If you are this point, I would suggest you read the law yourself, or obtain legal help.

By the way, the service provider must restore any works if a counter-claim is not filed, and must do so within a defined time limit. I suspect where many YouTubers run into trouble is they bring up alternate accounts when their account is suspended and I believe this violates the YouTube Terms of Service. I think. Hardly anyone is going to read this far 🙂 If you have, then you have already read the TOS and know the answer.

This video is chock full of bad advice, or at least incorrect advice. Registering your work with the copyright office is probably a good idea for certain content providers, but do I need to send this blog posting to the copyright office? That would be a silly waste of my time and the government’s time.

Update: 4/1/2010

I’ve recently been given some information on what a false DMCA looks like. It’s worth a look.

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