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.