I think the reason why the person in the article didn't do this is that the DMCA counternotice process requires the person filing the counternotice to provide their full name and address so they can be served if the rightsholder decides to sue them. With problems like swatting going around, I think many people would be reluctant to provide that information to someone who they already know is trying to mess with them.
A single button to immediately and without human review or notice period restore the video and monetization, remove the strike, and declare you are willing to solve it in court would solve a lot of the issues with ContentID abuse on YouTube.
Such a system would likely have to sit behind strict identity verification to prevent abuse, and some people wouldn't like that. But that's the price for sharing a platform with some very blatant infringers
Agreed that Youtube's system has problems with how long it gives claimants to respond to the initial content ID dispute and with people spamming false claims. It's definitely not a perfect system.
Of course there are plenty of corporate authoritarian imperatives for why they don't. This comment is a thought experiment to demonstrate their complicity in how their system is routinely abused.
IIUC, YouTube's copyright system is not a digital implementation of the DMCA. It's an additional system that occurs before the DMCA notice/counter-notice process so the laws about the DMCA are moot because it's not a DMCA notice (yet).
I'd be curious to know if this has ever been challenged in court as an unconstitutional prior restraint. Pretty obvious problems if you get people e.g. issuing fraudulent takedowns 10 days before an election.
The bigger issue is that Content ID has always been a way for YouTube to side-step the DMCA in a way that's beneficial to big copyright holders -- channel operators assume risk fighting a takedown in a way that was never a part of the DMCA.
"Comply with the DMCA" is the issue. If the law requires user-generated content hosts to take down content and leave it down for 10 days or they lose a legal protection that keeps them from being incinerated by lawyers, that's effectively a legal requirement that they take it down for 10 days, i.e. a prior restraint, which is typically not allowed.
> The DMCA doesn't provide strict timelines (just that the initial takedown requires the provider to "act expeditiously", and nothing for restoration).
What's this about the 10 days in 17 U.S.C. § 512(g)(2) then?
Thankfully, I was able to find the contact info for the Content ID provider in question - and within a day of emailing them they pulled the Content ID claim, noting that the customer of theirs who uploaded that think-break-containing song did so in violation of the company's ToS (which specifically forbids uploading music containing common samples like that for this exact reason). It ended up being a happy ending, but it still left a sour taste in my mouth w.r.t. YouTube's policies and practices when it comes to Content ID and copyright claims in general.
You'd think that YouTube could at least categorize those who perform and record unambigiously public domain works and advise people using automatic match software to be _very_ sure there's an infringement.
Someday if I have time and patience, I may try to see what legal options I have against one of these deep-pocket companies who are making false (and libelous) claims about the recordings I have made. They're accusing me of theft, and it's provably false.
What's annoying is sometimes I'm on the road and don't get to responding to the request for several weeks.
So, the system exists to placate large rightsholders. It's not going to be modified to cause them problems.
[1]: https://en.wikipedia.org/wiki/Content_ID#History
[2]: https://en.wikipedia.org/wiki/Viacom_International_Inc._v._Y...
It's even worse than that: the DMCA counternotice also requires the person filing the counternotice to agree to the jurisdiction of the USA courts, even if they live somewhere else. I think many people would be reluctant to take that additional legal risk.
This is exactly what the YouTube copyright counter notification is. The problem is that YouTubers aren't lawyers, so they don't want to risk going to court.
It's unclear, to me, if youtubers could proxy this through an attorney.
Yes. An authorized representative is allowed to submit a counter notification on your behalf, so they would put their name and address instead.
The problem with the victim first mentality is that it causes you to underestimate how much agency people actually have (e.g. being unaware of how excessive tenant protections decrease the supply of housing available to low-income earners).
That said, again, how is a small creator, which at least several nines of all creators are, supposed to scratch up the legal and financial resources to fight massive corporate interests and industrial scale fraud? Why is the onus on them, rather than the platforms that enable this kind of behavior? Like, I'm not trying to be overly sarcastic here, I'm genuinely curious how you make sense of this in your head. Is it like "oh well, that's the way of the world, fuck em?" kind of thing, or is it based on some kind of sound principle? Because the way things are do not really help anyone, except behemoth media interests, and especially hurts the quality of content online, which if I can make an assumption, you and I both consume. Which also, ironically, hurts the very platforms that (I suspect) you are trying to stan for here. Make it make sense?
Believe it or not, I shitpost on the internet for fun. Sometimes, I get flagged for bullshit reasons (moreso Reddit than hackernews), and there's nothing I can do about it. Since it's for fun though, it doesn't really cost me anything outside some minor frustration.
> That said, again, how is a small creator, which at least several nines of all creators are, supposed to scratch up the legal and financial resources to fight massive corporate interests and industrial scale fraud?
This article is talking about a small-time copyright troll who is obviously pretending to be Nintendo. There is virtually no risk of calling their bluff because they obviously aren't going to commit identity fraud in court. Chances are, the troll has better things to do than to leak your personal information, but if you're worried about that, you can hire a lawyer to file the counter notification for you for a couple hundred bucks. I'm sure there are ways to do this yourself as well if you need to fight a lot of claims. Just spitballing here, but if you have a business owner friend, you can use their business address and have them be your representative and file on your behalf.
If we're talking about large corporations with armies of lawyers like real Nintendo, then there's not much you can do besides hiring a good lawyer and listening to their advice. For very straightforward cases, you can probably play lawyer yourself so long as if you do enough research and preparation (again, just spitballing). Also, it's not like Nintendo is unaffected by legal costs. In fact, any legal action will probably be several times more expensive for them than it would be for you. If they're pursuing legal action, they likely genuinely believe they're in the right.
I owe money for a toll road? Hmmm, I must have accidentally blocked that user, deleted the message thread and reported it as spam. Sorry.
Like all you would have to do to, perhaps not fix, but heavily mitigate this, would be to have YouTube just... hold onto the revenue until the dispute is resolved. It's barely even a change. And most of the time, when creators do counter the claims, they're eventually dropped but again because of how that system works, YouTube has already funneled all their money to the claimant, irrespective of the determined validity of the claim. And it would discourage bullshit claims because even as low-rent a scam as this is, it is some amount of work, and if there's no payout, you necessarily reduce the number of scammers who will attempt it.
I don't know if that's a DMCA thing, I admittedly haven't researched it in a long time, but I don't see how that would put YouTube at any kind of liability. Any reader, do feel free to correct me.
They do that: https://support.google.com/youtube/answer/7000961?hl=en
Edit to quote the full section because the cherry picked quote is misleading:
> If you dispute a claim within 5 days, any revenue from the video will be held, starting with the first day the claim was placed. If you dispute a Content ID claim after 5 days from the original claim date, we'll start holding revenue the date the dispute is made.
Someone who didn't have the rights resampled the original song and submitted it to a label (not sure that's the right term), and the label proceeded to DMCA every single video the guy had posted.
Over a thousand videos, having to gather all that info for all of them, go through the appeals process on all of them. For him it was a manual action one at a time. From the label they have an API to bulk initiate claims
You should have to negotiate a percentage fee, not assume the claimant is entitled to 100%
This is likely why the only other ‘competitors’ you see are peering based or based on a subscription model. Neither of which can really compete with YouTube which really doesn’t need to *directly* make any money
YouTube ended up in that situation for two reasons. First, the original YouTube before Google bought it was playing fast and loose with the law and was in the process of getting sued over it after Google bought them. Second, Google wants to license Hollywood content for YouTube TV etc. So between wanting to settle the lawsuit and wanting to sell their soul and become Comcast, Google agreed to do a lot of this draconian BS that isn't otherwise required by law.
A competing service that just wants to be YouTube without being YouTube TV could plausibly follow the law without steamrolling the little guy quite that much.
Which means you need it to not suck or have some other countervailing advantage which is enough to overcome that, e.g. TikTok, but without the geopolitical issues of that one.
Additionally both sides of the dispute normally still want the monetization, they just disagree about who gets the proceeds. And because of the time value curve of YouTube videos (most make something like 90% of their revenue in the first few days), demonetizing has a good chance fo essentially erasing the revenue of the video for the creator.
If the media companies had their way, everything would work like YouTube Content ID, because that's the system that minimizes their enforcement cost. What they want is to make everything Someone Else's Problem.
In part because of these stupid DMCA rules preventing people like me from expressing their creativity.
I can appeal the strikes, but every time I do so I risk losing my channel forever. I don't monetize, and I only make parodies of stuff that came out over 10 years ago. So I've already accepted that the existence of my channel is ephemeral and that one day it will probably disappear forever.
But I don't have any other platform to go to if I want to share my 5-10 minutes long edits with more than 4 people.
Why am I not allowed to continue an art form that owes its name to the platform that spawned it? Is protecting the copyright of some random anime adaptation or cartoon (that no one gives a shit about anymore) seriously more important than creating novel art?
Copyright lasts WAY too much.
And no, I don't really want to go to court over this bullshit. But I am firmly convinced that it's in my rights to produce it. It's just that what counts as "my rights" depends entirely on the jurisdiction, because the law is a joke meant to protect people who can afford good lawyers -- it's not meant to actually enforce justice. Or rather, the concept of justice is so malleable that it basically means nothing in a globalized world.
Also, I'm from Europe. Which court should I go to when I infringe on an american dub copyright for a japanese cartoon, exactly?
> Also, I'm from Europe. Which court should I go to when I infringe on an american dub copyright for a japanese cartoon, exactly?
Well the copyright and the site are American so probably America.
The GP isn't asking for an audience. (Except if you mean "with the king", because that's exactly what the comment is asking for.)
> Well the copyright and the site are American so probably America
The GP didn't tell you who the copyright owner is. And Google is present in more than one country.
That said, yes, your last paragraph is a good hint. The world should just think very hard about blocking every large US business.
That's literally what copyright is
You can broadcast it. You don't have any kind of right to an audience to watch it. I don't even know what that would look like.
Then people want to use it in the sense of, you don't have a right against someone else interfering with your interaction with your willing audience, i.e. you don't have a right not to be censored by a government or corporate oligopoly. But that is a far less defensible proposition.
You can speak your mind. That doesn't mean YouTube is obligated to broadcast it for you, nor does it mean your speech is being suppressed if they choose not to.
The modern one where the adversarial video host is owned by the search engine with 90% market share that disfavors competitors in the search results? That's a different story.
Of course, the better solution there might be antitrust rather than common carriage requirements, but something's got to give.
YouTube isn't obligated to broadcast it, and in some cases it's debatable whether they're the ones suppressing it, but it is still being suppressed.
I don't mean in the legal US sense of the legal right to free speech, I mean the actual speech itself. If most people can speak but you cannot, and completely absent any question of rights and legality, how is that not suppression?
If you have the option to send a letter, then your speech is not being suppressed. And if the telegram company is being considered a common carrier, your speech will not be suppressed.
All of these things (protected classes, common carriers, etc.) have already been considered.
Reverse it. Why do -I-, a private citizen or company, have an obligation to amplify your speech for you, often without compensation?
I don't.
I'm not asking you, or YouTube, to stop suppressing speech. I'm objecting to the weasel-words. When you apply a special case to a user to reduce the reach of their content, that's targeted suppression. Suppression can be good! I'm grateful that YouTube suppresses spam and violence, but I'm not going to call it some newspeak term like unamplification.
I'm not sure why adding the reason of sexual orientation changes speech from being not-amplified to suppressed. Both cases are suppression. A fire suppression system doesn't turn into a fire unamplification system when it's used on the homes of heterosexuals.
"I can't speak freely because Platform A won't carry it" isn't a thing when Platforms B through ZZZ exist. And if B through ZZZ have less reach, well, so be it.
If you are an American citizen, the 1st Amendment to the United States Constitution mentions your God-given right to any audience that wants to listen to you.
At this point, if you are still using YouTube (or another platform), you're part of the problem (we've already been talking about this specific issue for 15 years already !!), use something like PeerTube instead !
Even more so if you're in Europe, heck, we even have the example of VLC basically violating DMCA and US patent laws for decades and they are still online - notably because they're not under US jurisdiction :
https://wiki.videolan.org/Frequently_Asked_Questions/#What_a...
Under very basic principles of law, only the owner or exclusive licensee of a copyright has standing to sue for copyright infringement. Furthermore, copyright law does not obligate copyright owners sue or license like trademark does. Therefore, for uses which are inconvenient[0] to sell a license for, but not damaging enough to go to court, copyright owners will often tacitly permit the use by simply failing to enforce their rights.
The problem is that courts have a very high bar to recognize tacit permission as a license. It's not impossible; there are some famous examples of 'implied license', but no competent lawyer would actually recommend you go to court and claim such a thing. One particular complication would be that if, say, you sued Fake Nintendo, and claimed fair use as a rationale for using Real Nintendo's content, Real Nintendo might want to actually sue you just to kill the fair use claim[1].
Just as an example of how complicated tacit permission can get:
Bungie's Destiny 2 is a perpetually updated "live service" game with an ongoing policy of removing content to keep download sizes reasonable[2]. As a result, there is music in the game that is no longer accessible. Bungie does not want people uploading the game soundtrack to YouTube, but they also don't want to turn that removed music into lost media, so they had a policy of not taking down "music archivists" that only uploaded the removed content.
One of the YouTubers that got taken down for reuploading live Destiny 2 music got pissed about it and started filing fraudulent DMCA takedowns in Bungie's name to music archivists. Bungie tried to get in contact with YouTube to have the fraudulent takedowns removed, but it took over a week of PR damage to everyone involved (and, if I remember, actually suing the idiot kid that did this) before YouTube would restore the videos.
If there is one thing that is badly drafted (and not just irritating) about the current DMCA 512 system, it's that there is no procedure for third-party counter-claimants to challenge fraudulent or mistaken claims. However, the current mechanisms of copyright make that impossible to provide. There is no database of who-owns-what and who-licensed-what; rights owners do not want such a database to exist; and it is entirely possible for multiple parties to have standing to sue the same person for the same act of infringement on the same work. Under regular copyright law, if Nintendo wants to sue you for, say, using the officially-licensed Mario DLC in your Minecraft streams, Microsoft can't intervene and stop them on the basis that they own Minecraft. How, exactly, should YouTube proceed if they have two parties swearing under oath conflicting information, and not obeying the right one puts you on the hook for billions of dollars in copyright liabilities? The current system is designed to make it easy to cheaply operate social media, not to actually be fair to its users or to stop online censorship.
[0] Reasons for this inconvenience can include:
- The transaction cost of negotiating a watertight contract for a very small deal. Generally speaking you don't want to make deals with understandable / 'plain language' licensing terms for the same reason why web browsers don't have an API to load unsigned arbitrary kernel modules from third-party servers.
- The licensing in question being contrary to exclusive licensing arrangements with other companies - though exclusive licensing contracts can also mandate the licensor or licensee enforce each other's rights to prevent this sort of thing
[1] In general, common law mechanisms like fair use create an incentive to sue, which is a very bad thing for people who don't like getting sued.
[2] This is a terrible policy, but the policies of console manufacturers require you to ship games as packages, so you couldn't just stream in assets as needed.
If they really wanted to solve it, here's an idea: if you get a takedown notice you also get a button that says "I am sure my content does not infringe copyright and I'm willing to go to court for it". YouTube reinstates your content and, if the entity with the claim disagrees, they can take you personally to court. Is this good? No, but that's on the DMCA. Is it better than now, when you have no recourse? I'd say yes.