It only counts as non-compliance if they fail to restore the content within ten to fourteen business days, assuming that the takedown notice issuer has not taken the matter to court.

The 10 days is to give the original claimant time to respond, but to do that YouTube needs to forward the counter-takedown to the original claimant, which they have refused to do.

> (B) upon receipt of a counter notification described in paragraph (3), promptly provides the person who provided the notification under subsection (c)(1)(C) with a copy of the counter notification, and informs that person that it will replace the removed material or cease disabling access to it in 10 business days; and

https://www.copyright.gov/title17/92chap5.html#512

YT has this weird format text that you have to EXACTLY copy and paste into the form for it to be processed, Several Lawyers on YT have talked about how to "successfully file a counter notification" and say that if you do not paste that EXACT terminology from their Help Document it will almost ways be rejected

That does not mean it is legal to reject it.

DCMA Claims, and DMCA Counter Notification are required to have certin things in them to be legally valid, My guess is that form text has all of the legally required elements, and if you submit a counter notification that is missing even one element that is required it is perfectly legal to reject it

Remember DMCA is not written to protect you the user, or protect the little guy, DMCA was written for RIAA/MPAA by the RIAA/MPAA

Counter notifications that include all legally required elements but do not valid their form letter are still valid. Yet this probably doesn't mash with Google's "Automate all the things!" strategy, so they are instead shafting everyone and hoping they get away with it due to their wealth even though YouTube is blatantly breaking the law.

I have zero love for YouTube, Google or Alphabet. But I feel like saying "YouTube is blatantly breaking the law" needs to be better researched to be taken serious than "yeah probably".

YouTube is rich so laws are irrelevant.

I never understood how that requirement is compatible with the First Amendment. How is that not compelling speech by the OSP?

OSPs don't have to host content they don't want to host... but if content gets taken down, and then a counter-notification is submitted, the OSP is then required to restore (read: host) the content?

Does it matter in practice? The OSP can restore the content and then immediately remove it again for a different reason, and I imagine that would honor the counter-notification.

My understanding is that it's a Faustian deal: YT is indemnified by removing its own agency in this regards. If it just follows the rules, it gets a pass. If it interprets the rules it doesn't.

Your understanding is correct, but how does that relates to my point about compelled speech?

You won't be on the hook for a DMCA violation if you give up the right to control what's on your website?

If you don't post this thing on your website [read: restore the content], you are violating the law?

If YouTube didn't have you agree to TOS before uploading a video, you may have a point here. In it's current state though, YouTube has carte-blanche permission to remove anything they want, not just disagreeable content. The concept of free speech does not give you the ability to renegotiate service agreements, unfortunately.

My point is that in some cases, the DMCA appears to require OSPs (YouTube, in this case) to restore content that has been the subject of a DMCA takedown.

I don't see how that is compatible with the idea that YouTube has the right to not host content on their website. It's their website. How can a counter-notification take away - even for an instant - YouTube's right to control what's on YouTube?

They can certainly demand it, but there's no recourse if Google simply says they don't want to host it. Nobody is guaranteed a spot on YouTube by the first amendment, and DMCA doesn't override the pre-existing precedents of contract law. If they truly demand a restoration of removed content, then they are free to do so with servers that they pay for.

Conversely then, how does the DMCA not violate the first amendment by silencing speech? Is there actually any difference in the direction of application of this regulation?

The DMCA takedown system is an exemption to copyright law; violate it, and you lose its safe harbor and go back under ordinary copyright law. Copyright law does not violate the First Amendment because the Constitution specifically allows for it:

> To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries

and the First Amendment does not override it; it is specifically worded "Congress shall make no law".

YouTube is a company, not a human being.

> YouTube is a company, not a human being.

The compelled speech doctrine applies to companies.

It's also a right that you waive by uploading videos to YouTube and agreeing to limit your liability as-per the TOS: https://www.youtube.com/static?template=terms

See the entry "Limitation of Liability"

Companies can't speak. Only the humans working there can.

Unless they're all replaced by AI some years in the future. Good luck countersuing a bunch of GPUs gone rogue.

The actual rule is that if YouTube takes something down in good faith belief that it is infringing, they are protected against any liability for any claim over taking it down, but only if the follow the restoration procedures as specified.

If they fail to do that they simply lose the protection of liability if you (or anybody) sues them over taking the work down.

So you cannot successfully sue them over say lost revenue for a fraudulent takedown notice if they follow the correct counternotice procedure. If they don't, then they might be liable, but most likely something in the terms of service or similar would prevent your suit from being a winning case anyway.

However, in other scenarios like where the provider was contractually obligated to keep the content available, if they fail to follow the counternotification procedures properly, you could potentially sue the provider and win.

You only have DMCA protection if you are a (reasonably) neutral host.

"Bob's airplane video emporium of only good airplanes" does not get DMCA protection. If Bob violates copyright, he can't hide behind DMCA.

If Youtube wants the DMCA safe harbor, they have to be (reasonably) neutral _and_ follow the DMCA. That includes restoring videos on counter claim.

Youtube can still do a TOS takedown. "We restored your video but then found it has boobs in it and have removed it." Totally fine.

They can't receive a valid counter claim and then decide to not follow.

There is no "losing" safe harbor. https://www.techdirt.com/2020/06/23/hello-youve-been-referre...

There are a few carve-outs to section 230, as your link mentions:

  If you said “Section 230 is why there’s piracy online”
  You again may be the NY Times or someone who has not read Section 230. Section 230 explicitly exempts intellectual property law:
     Nothing in this section shall be construed to limit or expand any law pertaining to intellectual property.

So when it comes to copyright, the DMCA takes precedence over section 230, and sites that don't follow the take-down procedures spelled out in the DMCA do indeed become liable (loose safe-harbor) for the specific content that they failed to enforce. If the site demonstrates a pattern of not complying, then copyright holders could even argue in court that they are liable for large classes of works without having to provide evidence of non-compliance for each individual work.

There are other carve-outs for CSAM and sex trafficking.

It is true that they don't become liable for all unrelated user content (say libel or harassment) because of this, so in that sense they still have safe harbor in general, but saying that they have lost safe harbor for particular content is a valid use of the term.

> complying, then copyright holders could even argue in court that they are liable for large classes of works without having to provide evidence of non-compliance for each individual work

But in practice, is there any point for any violated users to sue? Any YouTube video unlikely presents any meaningful income for them and going after American company in the court is really expensive.

DMCA safe harbor and Section 230 are different things?