Issuing a real legally binding DMCA takedown holds legal liability. Youtube id claims are not dmca takedown claims, and youtube is very clear on this distinction. You can not counter-sue a company for issuing a false id claim.

Issuing a DMCA takedown that is both false and meant in bad faith is an act of perjury. In theory the copyright holder could get jail time.

A interesting case is the video of a toddler dancing on youtube, 29s long, to a song. The Ninth Circuit held that copyright owners must consider fair use before issuing take-down notices. The case got settled afterwards.

This difference between DMCA takedown and ID claim is often discussed by youtube creators as both a boon and a curse. The good thing is that id claim does not impact any future standing with google or legal punishment beyond the loss of revenue from the video that get claimed. The bad side is that they get abused.

> Issuing a real legally binding DMCA takedown holds legal liability.

I've seen several documented cases of DMCA abuse but I haven't seen a single case where a major company was punished for it, and I doubt they'd face any consequences substantial enough to overshadow the profits they've made abusing the process. If you've got examples though I'd love to see them.

There can be a lot fewer cases if they don't have to go through the process!

It seems like there should be a way to escalate from an ID claim to DMCA -- to reject the ID claim as a content creator and force the claimant to send a DMCA. Then you can dispute the notice if it's issued in error, or counterclaim if they're abusing the process.

If the creator has deep enough pockets to fund a lawsuit, a tortious interference claim could be filed if someone falsely asserts a copyright violation and messes with your monetization.

> Issuing a DMCA takedown that is both false and meant in bad faith is an act of perjury.

But extreme negligence is 100% allowed, so that clause doesn't matter.

Thanks for the references. So basically the bargain of the ID claim is that if someone's use wasn't fair, the penalty is relatively lenient vs what it could've been in court, but then the disadvantage is that you don't get a proper appeal when you consider something to be fair use?

This is like DRM in a way: it's a circumvention of the copyright system that removes protections/mitigations from the side of "the people" (the demos).

Such actions should void the copyright on the claimed media, either make a DMCA or put up with it. The use of this "side-channel with a supposition of benefit to favour media corps and no proper defense review or resolution" perverts the copyright system's balance in providing a deal between the demos and the creators (and other rights acquirers).

Google's facilitation of this (instigation?) IMO shows they've come along way from 'don't be evil'.

Problem is that YouTube has automated the process to favor the fake claims filers.

Real case that happened to my friend(with maybe 2k subscribers):

1. Film a seaside with normal sea breeze and wave sounds (recorded at the same time) no music added.

2. Some Sony Music subsidiary claims that video infringes on their song from a different region which apparently contains similar sea sounds(facepalm here). Ok stuff happens algos are only human..

3.This is where the evil of Youtube comes in:

You file a dispute, point out the obvious in a professional manner -> YouTube seemingly reviews your dispute and claims that the video is infringing still!! It is obvious to anyone that the response was automated.

4. The only way to win this nonsense is to escalate to the next level of dispute which most normal humans are loathe to do (scared of lawyers, scared of YouTube, etc).

Again, the YouTube is evil for taking out the humans out of the review process while faking the review process.

We know they do it for everything else and that is Google modus operandi - to automate everything requiring human interaction.

In step 3 all that happens is that Youtube sends a second request to the original bot asking if they are correct. All of the bots immediately return yes. There is no penalty for the media cartel lying to YouTube so they don't even care.

For the cartels the decision tree is simple. Issue a demonetization claim and take the money for the channel. Doesn't matter if they own it or not. If the user successfully contests it then you're just out the money going forward, but nothing else. There's literally no reason for them to act ethically, so they don't. If YouTube does push back they have the weight of Copyright Law to bring down on YouTube, making even relatively small violations worth potentially trillions of dollars in damages.

Could someone just automate this escalation process in the same way people were automating the fighting of traffic tickets?

What's the upside of doing so? Is there a cost associated with it that you're going to have to pay even if you win (eg attorney or even just filing costs, or travel to a venue)?

The rights holder most definitely would not have a claim to pull the whole video down. If a human looked at that and saw it was music playing at the mall that was incidental to the video, it would be a clear case of fair use.

Fair use is entirely dependant on the context of the content. It is never really a “clear case”.

It’s decided on a case by case basis by the courts.

Sure, but historically, no one would bother taking such a case to court because the supposed damages from a video in that kind of case are obviously non-existent.

The ability to spam these kinds of take-downs at essentially zero cost and with no ramifications for the chilling effects and false claims create an environment where it is the norm.

Sounds like an opportunity for a classic class action lawsuit.

Blame YouTube because they made the system. And if you dispute the claim, the clamer gets to decide if the clame was false. The system is totally wrong.

Exactly. The DMCA itself, as bad as it is, is less broken here. Under the DMCA, if you post a DMCA counter-notice, the site puts the content back up, and the claimant has to sue the person who uploaded it rather than the site. As bad as DMCA notices are, that system would still be much better than YouTube's current system.

You have a copyright claim against the claimant if they decide wrong. A lawyer would be needed to peruse it though, so it probably ins't worth it.