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Are you saying that you believe corporations will continue to submit DMCA takedown notices on content that is newly found in the public domain, with no liabilit

Are you saying that you believe corporations will continue to submit DMCA takedown notices on content that is newly found in the public domain, with no liability? It seems as if you are trying to look at the move of some copyrighted works into the public domain through the lens of the DMCA, without considering that a content creator who receives a DMCA takedown of works that are in the public domain has hard evidence to counter said notice, which isn't necessarily the case in the setting of "fair use".

cogman10 8y ago
No, I'm saying that, today, copyright holders are submitting DMCA take down notices on content that does not contain copyrighted material at all. Not even under the fair use clause. There is hard evidence to counter those notices, but ultimately nobody ends up taking it to court because it is too expensive. See: https://www.dailydot.com/upstream/youtube-copyright-claims-thefatrat/ https://www.dailydot.com/upstream/youtube-copyright-claims-t...
- derefr 8y ago
  You don’t need to “take it to court”; if the recipient of the DMCA complaint says to the host that they disagree with the DMCA takedown notice, the host is required by the DMCA to put the content back up (or, at least, return it to whatever state it would be in if the DMCA takedown notice didn’t happen), and it is then the responsibility of the complainant to take the other party to court. Which the complainant will never do, in these cases where it’s obvious that it was just an overzealous algorithm flagging things it shouldn’t have—because actually pursuing damages for those situations are exactly the type of thing that make a judge issue contempt-of-court charges.
  - SpaceManiac 8y ago
    Most YouTube copyright complaints are not actually DMCA complaints. The complainant is just asking YouTube nicely (whether that be manually, automated on their side, or automated on YouTube's side) and YouTube is complying of its own volition. 4J of their terms: "YouTube reserves the right to discontinue any aspect of the Service at any time."
    - kevinwang 8y ago
      I'm pretty sure that if YouTube did not "comply if its own volition" for these kinds of claims, they would be in violation of DMCA.
      - gboudrias 8y ago
        Yes, but YouTube is being absolutely overzealous for no legal reason. Rather, I think it serves the double purpose of keeping the government (and regulation) very far away, while pandering to big content producers at the same time.
      - cyphar 8y ago
        ContentID doesn't operate through DMCA notices. People often conflate the two, but in the case of ContentID there are no legally mandated remedies like there are with DMCA notices.
  - burfog 8y ago
    Who responds to the DMCA complaint if the content uploader is missing, for example if they have died? It looks trivial to wipe out everything via a DMCA complaint. All you have to do is wait until the uploader is unable to respond. Given enough time, this happens to all human uploaders. Nothing is safe. This part of our cultural history can be wiped from existence.
  - dbdjfjrjvebd 8y ago
    Except that the DMCA troll just repeats the takedown notice. What should happen is that a lawyer making fraudulent DMCA notices should be held liable.
- jnellis 8y ago
  DMCA take down notices on 1923 content will be a thing you say?
- epmaybe 8y ago
  Please note that in your linked article, the very end states: "Last week, YouTube removed the claim from the flagger who said TheFatRat was using copyrighted material, and less than a day after Johnson filed a dispute on his video, the flagger released that claim. That means both YouTubers shouldn’t have to worry anymore about those specific videos. Neither TheFatRat nor Johnson returned emails from the Daily Dot to see if they were satisfied with the outcome." This implies that the content creators resolved their problems before getting traction on the published article. However, I will grant you the obvious point here that these content creators that were able to resolve their problems have a huge following, compared to the majority of content creators that don't have the same voice, so maybe this isn't the same for everyone. derefr who also commented below says that it should be the same for anyone who receives a DMCA takedown notice.
  - ndnxhs 8y ago
    The problem is YouTube heavily prioritizes new content so if your video goes offline for a day you just lost the majority of the profit from it. Its also ridiculous how YouTube presumes guilt. Your video should stay online while a dispute is handled.
    - icebraining 8y ago
      That's how the law works. If YouTube were to start leaving the videos up, the complainers would just start sending proper DMCA takedown notices, and YouTube would be forced to take it down promptly.
      - bencollier49 8y ago
        But then if the takedowns were incorrect, the people sending them would have proper liability.
        kilotaras 8y ago
        AFAIK the only DMCA penalty is if you aren't authorized to represent copyright owner, not if your claim isn't valid.
geofft 8y ago
I think I agree. The DMCA requires you to attest that you have "a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law." As far as I know, there is no successful caselaw of accusing a takedown sender of acting in bad faith—even when using automated systems like Content ID. (Lenz v. Universal Music Corp. is the closest but there wasn't any actual consequence for Universal, I think.) The other problem is that the DMCA safe harbor provision does not (AIUI) prevent companies from being stricter than necessary, and things like Content ID filter posts even before the level of a DMCA action. If YouTube "forgets" to update Content ID to change < 1923 to < 1924, I believe there's no legal recourse for an uploader to force them to do so. (IANAL and I haven't closely kept up with this so pleaee correct me if I'm wrong!)
- comex 8y ago
  Lenz v. Universal was ultimately settled under confidential terms. Since the preceding judgement in the 9th Circuit was largely favorable to Lenz, I’d guess those terms probably did include Universal paying at least some trivial amount.
- anticensor 8y ago
  > YouTube "forgets" to update Content ID to change < 1923 to < 1924 This will not affect ContentID as even public domain content is identified.

cogman10 8y ago

No, I'm saying that, today, copyright holders are submitting DMCA take down notices on content that does not contain copyrighted material at all. Not even under the fair use clause. There is hard evidence to counter those notices, but ultimately nobody ends up taking it to court because it is too expensive. See: https://www.dailydot.com/upstream/youtube-copyright-claims-thefatrat/ https://www.dailydot.com/upstream/youtube-copyright-claims-t...

derefr 8y ago
You don’t need to “take it to court”; if the recipient of the DMCA complaint says to the host that they disagree with the DMCA takedown notice, the host is required by the DMCA to put the content back up (or, at least, return it to whatever state it would be in if the DMCA takedown notice didn’t happen), and it is then the responsibility of the complainant to take the other party to court. Which the complainant will never do, in these cases where it’s obvious that it was just an overzealous algorithm flagging things it shouldn’t have—because actually pursuing damages for those situations are exactly the type of thing that make a judge issue contempt-of-court charges.
- SpaceManiac 8y ago
  Most YouTube copyright complaints are not actually DMCA complaints. The complainant is just asking YouTube nicely (whether that be manually, automated on their side, or automated on YouTube's side) and YouTube is complying of its own volition. 4J of their terms: "YouTube reserves the right to discontinue any aspect of the Service at any time."
  - kevinwang 8y ago
    I'm pretty sure that if YouTube did not "comply if its own volition" for these kinds of claims, they would be in violation of DMCA.
    - gboudrias 8y ago
      Yes, but YouTube is being absolutely overzealous for no legal reason. Rather, I think it serves the double purpose of keeping the government (and regulation) very far away, while pandering to big content producers at the same time.
    - cyphar 8y ago
      ContentID doesn't operate through DMCA notices. People often conflate the two, but in the case of ContentID there are no legally mandated remedies like there are with DMCA notices.
- burfog 8y ago
  Who responds to the DMCA complaint if the content uploader is missing, for example if they have died? It looks trivial to wipe out everything via a DMCA complaint. All you have to do is wait until the uploader is unable to respond. Given enough time, this happens to all human uploaders. Nothing is safe. This part of our cultural history can be wiped from existence.
- dbdjfjrjvebd 8y ago
  Except that the DMCA troll just repeats the takedown notice. What should happen is that a lawyer making fraudulent DMCA notices should be held liable.
jnellis 8y ago
DMCA take down notices on 1923 content will be a thing you say?
epmaybe 8y ago
Please note that in your linked article, the very end states: "Last week, YouTube removed the claim from the flagger who said TheFatRat was using copyrighted material, and less than a day after Johnson filed a dispute on his video, the flagger released that claim. That means both YouTubers shouldn’t have to worry anymore about those specific videos. Neither TheFatRat nor Johnson returned emails from the Daily Dot to see if they were satisfied with the outcome." This implies that the content creators resolved their problems before getting traction on the published article. However, I will grant you the obvious point here that these content creators that were able to resolve their problems have a huge following, compared to the majority of content creators that don't have the same voice, so maybe this isn't the same for everyone. derefr who also commented below says that it should be the same for anyone who receives a DMCA takedown notice.
- ndnxhs 8y ago
  The problem is YouTube heavily prioritizes new content so if your video goes offline for a day you just lost the majority of the profit from it. Its also ridiculous how YouTube presumes guilt. Your video should stay online while a dispute is handled.
  - icebraining 8y ago
    That's how the law works. If YouTube were to start leaving the videos up, the complainers would just start sending proper DMCA takedown notices, and YouTube would be forced to take it down promptly.
    - bencollier49 8y ago
      But then if the takedowns were incorrect, the people sending them would have proper liability.
      - kilotaras 8y ago
        AFAIK the only DMCA penalty is if you aren't authorized to represent copyright owner, not if your claim isn't valid.

geofft 8y ago

I think I agree. The DMCA requires you to attest that you have "a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law." As far as I know, there is no successful caselaw of accusing a takedown sender of acting in bad faith—even when using automated systems like Content ID. (Lenz v. Universal Music Corp. is the closest but there wasn't any actual consequence for Universal, I think.) The other problem is that the DMCA safe harbor provision does not (AIUI) prevent companies from being stricter than necessary, and things like Content ID filter posts even before the level of a DMCA action. If YouTube "forgets" to update Content ID to change < 1923 to < 1924, I believe there's no legal recourse for an uploader to force them to do so. (IANAL and I haven't closely kept up with this so pleaee correct me if I'm wrong!)

comex 8y ago
Lenz v. Universal was ultimately settled under confidential terms. Since the preceding judgement in the 9th Circuit was largely favorable to Lenz, I’d guess those terms probably did include Universal paying at least some trivial amount.
anticensor 8y ago
> YouTube "forgets" to update Content ID to change < 1923 to < 1924 This will not affect ContentID as even public domain content is identified.