6 ms·

The DMCA does not require YouTube to be involved in any part of the judgement. By just being the messenger YT is granted legal immunity for their part in spread

by phibz 4y ago

The DMCA does not require YouTube to be involved in any part of the judgement. By just being the messenger YT is granted legal immunity for their part in spreading the alleged infringing work. The complaintent is the judge _by design_! The law is broken and needs to change.

jjoonathan 4y ago
Is it? I thought that once the situation was contested by both sides, youtube had the option to default either way, and it was simply their deci$ion to side with claimants because the traditional claimants held a ton of media licenses while individual creators held few.
gpm 4y ago
My understanding of the DMCA is that the person receiving the complaint is the judge by design of the law. The complainant submits a complaint, the receiver submits a counter notice, youtube is granted immunity to put the content back up after 14 days (unless the complainant initiates a lawsuit within that timeframe) and the complainant has no recourse but to take the alleged-infringer to court.
- cmeacham98 4y ago
  Ultimately, you are correct, but the problem here is that 14 days. Effectively anyone can DoS your content for 14 days just by submitting a form online. Technically, submitting a copyright claim with blatantly false information is perjury, but your only recourse as the victim is to beg a prosecutor to take the perpetrator to court over it. There is no civil remedy for false DMCA takedowns. As far as I am aware, not a single person has ever been convicted of perjury because of information supplied in a DMCA takedown.
  - gpm 4y ago
    This is all a bit besides my point, which is that youtube's system is not just the system required by law, but much friendlier to the accuser. That said, there are also civil penalties for false takedown notices under 512(f), which I believe have been successfully litigated. Still, the effort vs reward in litigating them is almost never worth it. https://www.law.cornell.edu/uscode/text/17/512 https://www.law.cornell.edu/uscode/text/17/512
    - cmeacham98 4y ago
      My limited understanding is that 512(f) claims are almost impossible to win because you have to prove the claimant acted in bad faith, which is very difficult. My comment should have said something like "no effective civil remedy" rather than "no civil remedy".
      - pseudo0 4y ago
        Foreign entities abusing the DMCA system also adds another layer of impossibility to the system. Good luck pursuing recourse against someone in North Korea or wherever, even if the DMCA claims are in blatantly bad faith. The claimant should require some skin in the game to prevent this sort of nonsense, maybe a bond or surety of some kind held in the US?
        account42 4y ago
        Better would be to scrap the whole thing and make the claimant convince a court before getting an injunction like for pretty much any other kind of dispute. If the costs to the cours for that are too high then add a copyright holder tax.
- bushbaba 4y ago
  If it is this easy. Why hasn't someone decided to DDOS hostage all the major Youtubers?
  - powerhour 4y ago
    Is there room in the market for a Takedown as a Service vendor?
    - ciguy 4y ago
      Oh you sweet child. This is already a thing and has been for a decade at least. Anyone with enough money can hire a firm based out of a dodgy country that will abuse the DMCA, Content Reporting mechanisms and insider contacts to get whatever you want taken down from pretty much anywhere. I know because I've seen a couple rich fucks do it with things they didn't want online about them or a family member of theirs.
  - Schroedingersat 4y ago
    Because they get special treatment.
  - faeriechangling 4y ago
    If you’re a Mr. Beast level big deal I’m sure somebody from YouTube will actually look into the matter. This is of most impact to channels big enough for somebody to treat it as a full time job, but not so big that it will ever be worth YouTube’s time to provide them any level of service.
  - randomswede 4y ago
    Is't this basically what happened with Destiny 2 channels earlier this year? Someone faked DMCA claims from Bungie across a wide swathe of Destiny 2 channels, possibly as retribution for having "music archiving" (which probably technically is a copyright violation) copyright-struck.
- ben0x539 4y ago
  Sounds like youtube doesn't feel obligated to restore content after a valid counter notification: https://www.newmediarights.org/copyright/DMCA/youtube_refusing_honor_dmca_counter_notices https://www.newmediarights.org/copyright/DMCA/youtube_refusi... I guess, as long as they comply with the takedown, they feel sufficiently safely harboured, and don't feel compelled to implement the other part of the process since like what are you going to do, sue youtube to force them to host your video and run ads on it?
  - account42 4y ago
    Typically youtube copyright strikes aren't even from DMCA notices at all but from their own system they designed so they don't have to spend as much on processing DMCA notices and to make the record industry happy.
    - ben0x539 4y ago
      From reading through their stuff a bit, it sounds like you can get fake/internal non-DMCA strikes first, and then, usually, you can choose to escalate to require them to do an actual DMCA thing if you disagree hard enough, which seems sort of reasonable.
- roenxi 4y ago
  Wealthy entities are somewhat vulnerable to lawsuits. It would be prudent of YouTube to take the a very paranoid view of the law from a respectable lawyer - which is likely what they've done. Judges sometimes take pride in interpreting a law to mean something other than what the words say. Let alone the risks of interactions with other parts of the law. Amateur understanding doesn't count for much.
underwater 4y ago
The YouTube copyright claim process isn't DMCA.
- tssva 4y ago
  The initial copyright claim process isn't DMCA, but if you dispute a copyright claim and lose you can then appeal that decision. The DMCA process then takes over. YouTube requires the claimant to file a DMCA take down notice to continue the process. If they do not then the claim is removed. If they do then you can follow the DMCA counter notice process.
  - kmeisthax 4y ago
    Early on YouTube didn't even treat disputes as on the same track as DMCA - if your appeal got rejected they'd just side with the claimant and you had no further recourse. It's possible that this happened that long ago. Of course, even being able to DMCA counter-notice isn't really a help, because you're just telling the claimnant to sue. You even have to dox yourself. What people want is to just not have to deal with copyright in these specific cases where there is no element of copyright being infringed.
    - candiodari 4y ago
      Unfortunately both lawmakers and judges take a somewhat dim view of the whole "I shouldn't have to deal with the law" attitude.
      - kmeisthax 4y ago
        They take a dim view of this attitude when it's a transparent attempt at dodging liability. The relative success of anti-SLAPP statues and motions would indicate that there is at least some empathy for "not forcing people who have not committed a crime to prove that they haven't committed a crime".

by phibz 4y ago

jjoonathan 4y ago

Is it? I thought that once the situation was contested by both sides, youtube had the option to default either way, and it was simply their deci$ion to side with claimants because the traditional claimants held a ton of media licenses while individual creators held few.

gpm 4y ago

My understanding of the DMCA is that the person receiving the complaint is the judge by design of the law. The complainant submits a complaint, the receiver submits a counter notice, youtube is granted immunity to put the content back up after 14 days (unless the complainant initiates a lawsuit within that timeframe) and the complainant has no recourse but to take the alleged-infringer to court.

cmeacham98 4y ago
Ultimately, you are correct, but the problem here is that 14 days. Effectively anyone can DoS your content for 14 days just by submitting a form online. Technically, submitting a copyright claim with blatantly false information is perjury, but your only recourse as the victim is to beg a prosecutor to take the perpetrator to court over it. There is no civil remedy for false DMCA takedowns. As far as I am aware, not a single person has ever been convicted of perjury because of information supplied in a DMCA takedown.
- gpm 4y ago
  This is all a bit besides my point, which is that youtube's system is not just the system required by law, but much friendlier to the accuser. That said, there are also civil penalties for false takedown notices under 512(f), which I believe have been successfully litigated. Still, the effort vs reward in litigating them is almost never worth it. https://www.law.cornell.edu/uscode/text/17/512 https://www.law.cornell.edu/uscode/text/17/512
  - cmeacham98 4y ago
    My limited understanding is that 512(f) claims are almost impossible to win because you have to prove the claimant acted in bad faith, which is very difficult. My comment should have said something like "no effective civil remedy" rather than "no civil remedy".
    - pseudo0 4y ago
      Foreign entities abusing the DMCA system also adds another layer of impossibility to the system. Good luck pursuing recourse against someone in North Korea or wherever, even if the DMCA claims are in blatantly bad faith. The claimant should require some skin in the game to prevent this sort of nonsense, maybe a bond or surety of some kind held in the US?
      - account42 4y ago
        Better would be to scrap the whole thing and make the claimant convince a court before getting an injunction like for pretty much any other kind of dispute. If the costs to the cours for that are too high then add a copyright holder tax.
bushbaba 4y ago
If it is this easy. Why hasn't someone decided to DDOS hostage all the major Youtubers?
- powerhour 4y ago
  Is there room in the market for a Takedown as a Service vendor?
  - ciguy 4y ago
    Oh you sweet child. This is already a thing and has been for a decade at least. Anyone with enough money can hire a firm based out of a dodgy country that will abuse the DMCA, Content Reporting mechanisms and insider contacts to get whatever you want taken down from pretty much anywhere. I know because I've seen a couple rich fucks do it with things they didn't want online about them or a family member of theirs.
- Schroedingersat 4y ago
  Because they get special treatment.
- faeriechangling 4y ago
  If you’re a Mr. Beast level big deal I’m sure somebody from YouTube will actually look into the matter. This is of most impact to channels big enough for somebody to treat it as a full time job, but not so big that it will ever be worth YouTube’s time to provide them any level of service.
- randomswede 4y ago
  Is't this basically what happened with Destiny 2 channels earlier this year? Someone faked DMCA claims from Bungie across a wide swathe of Destiny 2 channels, possibly as retribution for having "music archiving" (which probably technically is a copyright violation) copyright-struck.
ben0x539 4y ago
Sounds like youtube doesn't feel obligated to restore content after a valid counter notification: https://www.newmediarights.org/copyright/DMCA/youtube_refusing_honor_dmca_counter_notices https://www.newmediarights.org/copyright/DMCA/youtube_refusi... I guess, as long as they comply with the takedown, they feel sufficiently safely harboured, and don't feel compelled to implement the other part of the process since like what are you going to do, sue youtube to force them to host your video and run ads on it?
- account42 4y ago
  Typically youtube copyright strikes aren't even from DMCA notices at all but from their own system they designed so they don't have to spend as much on processing DMCA notices and to make the record industry happy.
  - ben0x539 4y ago
    From reading through their stuff a bit, it sounds like you can get fake/internal non-DMCA strikes first, and then, usually, you can choose to escalate to require them to do an actual DMCA thing if you disagree hard enough, which seems sort of reasonable.
roenxi 4y ago
Wealthy entities are somewhat vulnerable to lawsuits. It would be prudent of YouTube to take the a very paranoid view of the law from a respectable lawyer - which is likely what they've done. Judges sometimes take pride in interpreting a law to mean something other than what the words say. Let alone the risks of interactions with other parts of the law. Amateur understanding doesn't count for much.

underwater 4y ago

The YouTube copyright claim process isn't DMCA.

tssva 4y ago
The initial copyright claim process isn't DMCA, but if you dispute a copyright claim and lose you can then appeal that decision. The DMCA process then takes over. YouTube requires the claimant to file a DMCA take down notice to continue the process. If they do not then the claim is removed. If they do then you can follow the DMCA counter notice process.
- kmeisthax 4y ago
  Early on YouTube didn't even treat disputes as on the same track as DMCA - if your appeal got rejected they'd just side with the claimant and you had no further recourse. It's possible that this happened that long ago. Of course, even being able to DMCA counter-notice isn't really a help, because you're just telling the claimnant to sue. You even have to dox yourself. What people want is to just not have to deal with copyright in these specific cases where there is no element of copyright being infringed.
  - candiodari 4y ago
    Unfortunately both lawmakers and judges take a somewhat dim view of the whole "I shouldn't have to deal with the law" attitude.
    - kmeisthax 4y ago
      They take a dim view of this attitude when it's a transparent attempt at dodging liability. The relative success of anti-SLAPP statues and motions would indicate that there is at least some empathy for "not forcing people who have not committed a crime to prove that they haven't committed a crime".