4 ms·

> no court would ever uphold this removal, because it obviously falls under "parody" which is protected Not a lawyer, but... It doesn't seem like parody to me

by Reelin 6y ago

> no court would ever uphold this removal, because it obviously falls under "parody" which is protected Not a lawyer, but... It doesn't seem like parody to me. It also doesn't seem like it has much of anything to do with copyright at all - one of the videos taken down was reportedly a performance of an excerpt from Hamlet, which is definitely in the public domain. On the other hand it does seem like a possible violation of trademark law, but I have no idea how that would play out in court. Which is confusing, because I thought the DMCA only applied to copyright (it's the Digital Millennium _Copyright_ Act, after all) but perhaps I'm wrong and it includes provisions about trademark as well?

cmeacham98 6y ago
> Which is confusing, because I thought the DMCA only applied to copyright (it's the Digital Millennium _Copyright_ Act, after all) but perhaps I'm wrong and it includes provisions about trademark as well? As far as I know, a legally enforceable "DMCA takedown" can only be about copyright infringement. However, YouTube is under no obligation to not honor takedowns that aren't legally binding.
- stcredzero 6y ago
  However, YouTube is under no obligation to not honor takedowns that aren't legally binding. That's what's ripe for abuse. Why isn't it a fiduciary responsibility to their "partners" to make sure they aren't needlessly deprived of revenue, in situations where a 1st year law student could tell them there isn't a legal basis for the takedown?
  - PeterisP 6y ago
    Details matter - "takedown that is not legally binding" does not mean that "there isn't a legal basis for the takedown". The legal basis for the takedown is the language in the Youtube terms and conditions that says that Youtube can take down the content at their discretion. It does not matter if that decision is caused by a non-binding takedown request of a self-asserted copyright owner, or by a drunken manager randomly clicking to remove videos, the legal arrangement between Youtube and their "partners" does not assume any fiduciary responsibility to ensure that your videos will be kept unless absoltely needed, and no current law is forcing them to assume that responsibility. I mean, the statement "why isn't it a fiduciary responsibility to their "partners" to make sure they aren't needlessly deprived of revenue," seems very weird from the perspective of law - why would there be such a responsibility? Do you have some law in mind that would cause it? E.g. CEOs have fiduciary responsibility to shareholders, stockbrokers have fiduciary responsibility to their clients due to specific laws, but in general there is no fiduciary responsibility between parties in a contract, the parties can be 'hostile' towards each other as much as they want. The default legal position is that every private actor is free to act as they want for their own benefit as long as they are not breaking any laws or contracts. If I cause you some losses by doing things I am entitled to do, there's no possible liability - in order to claim damages, I have to have done something wrong. So in the absence of a specific law or contract requiring Amazon to ensure that their "partners" aren't needlessly deprived of revenue, that lost revenue is not Amazon's problem, and they're entitled to (for example) intentionally cause partners to lose that revenue if it benefits Amazon in some way and there's no statute or contract that restricts Amazon from doing so.
  - lmm 6y ago
    Because the law treats the "partner" relationship as something that was freely negotiated between equal parties, despite the obvious power imbalance. Video creators need to from a union to protect their interests, but since they're all "temporarily embarrassed millionaires" I doubt that'll happen.
    - icebraining 6y ago
      Let's not forget that YouTube's ContentID system is a direct result from them being sued by Viacom et all: https://en.wikipedia.org/wiki/Viacom_International_Inc._v._YouTube,_Inc https://en.wikipedia.org/wiki/Viacom_International_Inc._v._Y.... If YouTube stops taking down these videos based on this "fiduciary duty" and they get sued again, will this union pay for the legal fees and potential damages? Yeah, not likely.
      - lmm 6y ago
        Anyone can sue anyone for anything. YouTube were protected by the safe harbour rules and won a summary judgement on those grounds.
        icebraining 6y ago
        If the lawsuit was so obviously invalid (despite the first summary judgement being successfully appealed), what's your theory on why YouTube settled and agreed to spend money building Content-ID?
- mninm 6y ago
  I also am not a lawyer but from what I understand the situation is actually more severe than that. I couldn't find the reference offhand but I've read that YouTube has no ability to adjudicate the validity of a DMCA takedown request at all. They must responed as proscribed by the DMCA. Which makes sense because once the DMCA is involved it's ultimately a legal dispute between the person that uploaded the video and the person that claims to own the copyright. And that kind of dispute is something only the courts can decide.
  - fiddlerwoaroof 6y ago
    Isn’t there some recourse? I think the content maker can assert it’s non-infringing, and then YouTube can host it again without liability: the liability falls on the content maker if it turns out to actually be infringement.
  - PeterisP 6y ago
    DMCA is not involved in the standard YouTube removal request process - the removal request does not have to fit the criteria of DMCA, the response does not have to fit the criteria of DMCA, and as long as both Jay-Z and Youtube are satisfied, the DMCA does not get involved at all, no matter what the poster of the removed content might wish. If Jay-Z was not satisfied with the process, he could submit a DMCA request and YouTube would have to follow the DMCA requirements in processing it, but the current process is better for both of them (not for the posters of the contested content, though).

by Reelin 6y ago

cmeacham98 6y ago

> Which is confusing, because I thought the DMCA only applied to copyright (it's the Digital Millennium _Copyright_ Act, after all) but perhaps I'm wrong and it includes provisions about trademark as well? As far as I know, a legally enforceable "DMCA takedown" can only be about copyright infringement. However, YouTube is under no obligation to not honor takedowns that aren't legally binding.

stcredzero 6y ago
However, YouTube is under no obligation to not honor takedowns that aren't legally binding. That's what's ripe for abuse. Why isn't it a fiduciary responsibility to their "partners" to make sure they aren't needlessly deprived of revenue, in situations where a 1st year law student could tell them there isn't a legal basis for the takedown?
- PeterisP 6y ago
  Details matter - "takedown that is not legally binding" does not mean that "there isn't a legal basis for the takedown". The legal basis for the takedown is the language in the Youtube terms and conditions that says that Youtube can take down the content at their discretion. It does not matter if that decision is caused by a non-binding takedown request of a self-asserted copyright owner, or by a drunken manager randomly clicking to remove videos, the legal arrangement between Youtube and their "partners" does not assume any fiduciary responsibility to ensure that your videos will be kept unless absoltely needed, and no current law is forcing them to assume that responsibility. I mean, the statement "why isn't it a fiduciary responsibility to their "partners" to make sure they aren't needlessly deprived of revenue," seems very weird from the perspective of law - why would there be such a responsibility? Do you have some law in mind that would cause it? E.g. CEOs have fiduciary responsibility to shareholders, stockbrokers have fiduciary responsibility to their clients due to specific laws, but in general there is no fiduciary responsibility between parties in a contract, the parties can be 'hostile' towards each other as much as they want. The default legal position is that every private actor is free to act as they want for their own benefit as long as they are not breaking any laws or contracts. If I cause you some losses by doing things I am entitled to do, there's no possible liability - in order to claim damages, I have to have done something wrong. So in the absence of a specific law or contract requiring Amazon to ensure that their "partners" aren't needlessly deprived of revenue, that lost revenue is not Amazon's problem, and they're entitled to (for example) intentionally cause partners to lose that revenue if it benefits Amazon in some way and there's no statute or contract that restricts Amazon from doing so.
- lmm 6y ago
  Because the law treats the "partner" relationship as something that was freely negotiated between equal parties, despite the obvious power imbalance. Video creators need to from a union to protect their interests, but since they're all "temporarily embarrassed millionaires" I doubt that'll happen.
  - icebraining 6y ago
    Let's not forget that YouTube's ContentID system is a direct result from them being sued by Viacom et all: https://en.wikipedia.org/wiki/Viacom_International_Inc._v._YouTube,_Inc https://en.wikipedia.org/wiki/Viacom_International_Inc._v._Y.... If YouTube stops taking down these videos based on this "fiduciary duty" and they get sued again, will this union pay for the legal fees and potential damages? Yeah, not likely.
    - lmm 6y ago
      Anyone can sue anyone for anything. YouTube were protected by the safe harbour rules and won a summary judgement on those grounds.
      - icebraining 6y ago
        If the lawsuit was so obviously invalid (despite the first summary judgement being successfully appealed), what's your theory on why YouTube settled and agreed to spend money building Content-ID?
mninm 6y ago
I also am not a lawyer but from what I understand the situation is actually more severe than that. I couldn't find the reference offhand but I've read that YouTube has no ability to adjudicate the validity of a DMCA takedown request at all. They must responed as proscribed by the DMCA. Which makes sense because once the DMCA is involved it's ultimately a legal dispute between the person that uploaded the video and the person that claims to own the copyright. And that kind of dispute is something only the courts can decide.
- fiddlerwoaroof 6y ago
  Isn’t there some recourse? I think the content maker can assert it’s non-infringing, and then YouTube can host it again without liability: the liability falls on the content maker if it turns out to actually be infringement.
- PeterisP 6y ago
  DMCA is not involved in the standard YouTube removal request process - the removal request does not have to fit the criteria of DMCA, the response does not have to fit the criteria of DMCA, and as long as both Jay-Z and Youtube are satisfied, the DMCA does not get involved at all, no matter what the poster of the removed content might wish. If Jay-Z was not satisfied with the process, he could submit a DMCA request and YouTube would have to follow the DMCA requirements in processing it, but the current process is better for both of them (not for the posters of the contested content, though).