6 ms·

Assuming the facts reported here are true, it seems that YouTube is putting its safe harbor in jeopardy by not complying with the counter-takedown: > Following

by paulgb 4y ago

Assuming the facts reported here are true, it seems that YouTube is putting its safe harbor in jeopardy by not complying with the counter-takedown: > Following receipt of a compliant counter-notice, the online service provider must restore access to the material after no less than ten and no more than fourteen business days, unless the original notice sender informs the service provider that it has filed a court action against the user. https://www.copyright.gov/512/ https://www.copyright.gov/512/

zozbot234 4y ago
It only counts as non-compliance if they fail to restore the content within ten to fourteen business days, assuming that the takedown notice issuer has not taken the matter to court.
- paulgb 4y ago
  The 10 days is to give the original claimant time to respond, but to do that YouTube needs to forward the counter-takedown to the original claimant, which they have refused to do. > (B) upon receipt of a counter notification described in paragraph (3), promptly provides the person who provided the notification under subsection (c)(1)(C) with a copy of the counter notification, and informs that person that it will replace the removed material or cease disabling access to it in 10 business days; and https://www.copyright.gov/title17/92chap5.html#512 https://www.copyright.gov/title17/92chap5.html#512
phpisthebest 4y ago
YT has this weird format text that you have to EXACTLY copy and paste into the form for it to be processed, Several Lawyers on YT have talked about how to "successfully file a counter notification" and say that if you do not paste that EXACT terminology from their Help Document it will almost ways be rejected
- danuker 4y ago
  That does not mean it is legal to reject it.
  - phpisthebest 4y ago
    DCMA Claims, and DMCA Counter Notification are required to have certin things in them to be legally valid, My guess is that form text has all of the legally required elements, and if you submit a counter notification that is missing even one element that is required it is perfectly legal to reject it Remember DMCA is not written to protect you the user, or protect the little guy, DMCA was written for RIAA/MPAA by the RIAA/MPAA
    - counttheforks 4y ago
      Counter notifications that include all legally required elements but do not follow their form letter are still valid. Yet this probably doesn't mash with Google's "Automate all the things!" strategy, so they are instead shafting everyone and hoping they get away with it due to their wealth even though YouTube is blatantly breaking the law.
      - capableweb 4y ago
        I have zero love for YouTube, Google or Alphabet. But I feel like saying "YouTube is blatantly breaking the law" needs to be better researched to be taken serious than "yeah probably".
  - causality0 4y ago
    YouTube is rich so laws are irrelevant.
SpelingBeeChamp 4y ago
I never understood how that requirement is compatible with the First Amendment. How is that not compelling speech by the OSP? OSPs don't have to host content they don't want to host... but if content gets taken down, and then a counter-notification is submitted, the OSP is then required to restore (read: host) the content?
- thechao 4y ago
  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.
  - SpelingBeeChamp 4y ago
    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?
    - smoldesu 4y ago
      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.
      - SpelingBeeChamp 4y ago
        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?
devwastaken 4y ago
There is no "losing" safe harbor. https://www.techdirt.com/2020/06/23/hello-youve-been-referred-here-because-youre-wrong-about-section-230-communications-decency-act/ https://www.techdirt.com/2020/06/23/hello-youve-been-referre...
- pavon 4y ago
  There are a few carve-outs to section 230, as your link mentions: If you said “Section 230 is why there’s piracy online” You again may be the NY Times or someone who has not read Section 230. Section 230 explicitly exempts intellectual property law: Nothing in this section shall be construed to limit or expand any law pertaining to intellectual property. So when it comes to copyright, the DMCA takes precedence over section 230, and sites that don't follow the take-down procedures spelled out in the DMCA do indeed become liable (loose safe-harbor) for the specific content that they failed to enforce. If the site demonstrates a pattern of not complying, then copyright holders could even argue in court that they are liable for large classes of works without having to provide evidence of non-compliance for each individual work. There are other carve-outs for CSAM and sex trafficking. It is true that they don't become liable for all unrelated user content (say libel or harassment) because of this, so in that sense they still have safe harbor in general, but saying that they have lost safe harbor for particular content is a valid use of the term.
  - miohtama 4y ago
    > complying, then copyright holders could even argue in court that they are liable for large classes of works without having to provide evidence of non-compliance for each individual work But in practice, is there any point for any violated users to sue? Any YouTube video unlikely presents any meaningful income for them and going after American company in the court is really expensive.
- roywiggins 4y ago
  DMCA safe harbor and Section 230 are different things?

by paulgb 4y ago

zozbot234 4y ago

It only counts as non-compliance if they fail to restore the content within ten to fourteen business days, assuming that the takedown notice issuer has not taken the matter to court.

paulgb 4y ago
The 10 days is to give the original claimant time to respond, but to do that YouTube needs to forward the counter-takedown to the original claimant, which they have refused to do. > (B) upon receipt of a counter notification described in paragraph (3), promptly provides the person who provided the notification under subsection (c)(1)(C) with a copy of the counter notification, and informs that person that it will replace the removed material or cease disabling access to it in 10 business days; and https://www.copyright.gov/title17/92chap5.html#512 https://www.copyright.gov/title17/92chap5.html#512

phpisthebest 4y ago

YT has this weird format text that you have to EXACTLY copy and paste into the form for it to be processed, Several Lawyers on YT have talked about how to "successfully file a counter notification" and say that if you do not paste that EXACT terminology from their Help Document it will almost ways be rejected

danuker 4y ago
That does not mean it is legal to reject it.
- phpisthebest 4y ago
  DCMA Claims, and DMCA Counter Notification are required to have certin things in them to be legally valid, My guess is that form text has all of the legally required elements, and if you submit a counter notification that is missing even one element that is required it is perfectly legal to reject it Remember DMCA is not written to protect you the user, or protect the little guy, DMCA was written for RIAA/MPAA by the RIAA/MPAA
  - counttheforks 4y ago
    Counter notifications that include all legally required elements but do not follow their form letter are still valid. Yet this probably doesn't mash with Google's "Automate all the things!" strategy, so they are instead shafting everyone and hoping they get away with it due to their wealth even though YouTube is blatantly breaking the law.
    - capableweb 4y ago
      I have zero love for YouTube, Google or Alphabet. But I feel like saying "YouTube is blatantly breaking the law" needs to be better researched to be taken serious than "yeah probably".
- causality0 4y ago
  YouTube is rich so laws are irrelevant.

SpelingBeeChamp 4y ago

I never understood how that requirement is compatible with the First Amendment. How is that not compelling speech by the OSP? OSPs don't have to host content they don't want to host... but if content gets taken down, and then a counter-notification is submitted, the OSP is then required to restore (read: host) the content?

thechao 4y ago
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.
- SpelingBeeChamp 4y ago
  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?
  - smoldesu 4y ago
    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.
    - SpelingBeeChamp 4y ago
      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?

devwastaken 4y ago

There is no "losing" safe harbor. https://www.techdirt.com/2020/06/23/hello-youve-been-referred-here-because-youre-wrong-about-section-230-communications-decency-act/ https://www.techdirt.com/2020/06/23/hello-youve-been-referre...

pavon 4y ago
There are a few carve-outs to section 230, as your link mentions: If you said “Section 230 is why there’s piracy online” You again may be the NY Times or someone who has not read Section 230. Section 230 explicitly exempts intellectual property law: Nothing in this section shall be construed to limit or expand any law pertaining to intellectual property. So when it comes to copyright, the DMCA takes precedence over section 230, and sites that don't follow the take-down procedures spelled out in the DMCA do indeed become liable (loose safe-harbor) for the specific content that they failed to enforce. If the site demonstrates a pattern of not complying, then copyright holders could even argue in court that they are liable for large classes of works without having to provide evidence of non-compliance for each individual work. There are other carve-outs for CSAM and sex trafficking. It is true that they don't become liable for all unrelated user content (say libel or harassment) because of this, so in that sense they still have safe harbor in general, but saying that they have lost safe harbor for particular content is a valid use of the term.
- miohtama 4y ago
  > complying, then copyright holders could even argue in court that they are liable for large classes of works without having to provide evidence of non-compliance for each individual work But in practice, is there any point for any violated users to sue? Any YouTube video unlikely presents any meaningful income for them and going after American company in the court is really expensive.
roywiggins 4y ago
DMCA safe harbor and Section 230 are different things?