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> YouTube assumes “guilty until proven innocent” because that’s cheaper. It’s cheaper because properly following the chain of what constitutes free speech and w

> YouTube assumes “guilty until proven innocent” because that’s cheaper. It’s cheaper because properly following the chain of what constitutes free speech and whether a claim is legitimate are costly questions. My impression was that the law itself was fine in this respect -- a claim could be met with a counterclaim (requiring legal commitment from the alleged offender -- signatures, identity, jurisdiction) and YouTube could then restore the media pending actual litigation. In other words, Legal Entity vs Anonymous defaults to a takedown, but Legal Entity vs Legal Entity defaults to keep up. That sounds reasonable to me, and the fact that youtube doesn't work that way is not a consequence of law but rather a corporate choice to put luxurious accommodation of large copyright holders ahead of basic decency towards content creators. > [Copyright creep is corporate welfare] Yep. Gross.

hakfoo 3y ago
I think the secondary risk factor is that access to the legal system is expensive and time-consuming, especially for an individual. A counterclaim process, even if as streamlined and fully supported as possible, is still a legal operation which involves time and money that many people are not going to have, especially for small-scale and legitimate fair-use scenarios. If you copyright claim some video from Sony or IBM, they've got a legal team on retainer to get it back up. A top-tier "content creator" who's earned six or seven figures and his career depends on the video staying up might hire a lawyer and fight for it. But the guy who's using a video clip as a fair-use part of a non-commercial discussion is probably going to fold instead of going out of pocket to defend himself. So we'd see the system falling back to "no response/takedown" for many important real-world use cases anyway. If DMCA spam had a cost to it-- perhaps a deposit that had to be filed with the court, refundable if there is no counterclaim, or actual prosecution of bad-faith actors for perjury, that might help make it a tradeoff rather than a wholesale giveaway to the copyright industry.
jorams 3y ago
> Legal Entity vs Legal Entity defaults to keep up. Note that it only does so after a waiting period of 10-14 days after the counterclaim. There's plenty of cases where a bullshit takedown is enough to destroy the value of the material taken down.
- MichaelZuo 3y ago
  I can't think of any legitimate video upload scenario that has it's value 'destroyed' by being unavailable for 10-14 days. Can you name some examples?
mindslight 3y ago
No, the DMCA itself is a terribly one-sided law, from the same place as every other law unilaterally written and forced on us by moneyed interests. It only seems halfway reasonable because its passing happened so long ago, like the CFAA. The DMCA makes the target spill their real world identity, submit to US jurisdiction, requires a one day deadline for takedown but a two week waiting period for something to be put back up, and carries effectively no penalty for incorrect/fraudulent takedowns. Never mind its draconian "anti-circumvention" provisions that continue to plague basic interoperability. It might as well have been called the Sonny Bono Fuck Computers Act.
- trogdor 3y ago
  >requires a one day deadline for takedown The DMCA does not require takedown within one day. It requires “expeditious” removal. But courts have held that response times ranging from 5 to 14 days are expeditious, and in a recent case against YouTube (Business Casual v YouTube), a 23-day delay was excused because the court applied the standard for purposes of volitional conduct and direct infringement, sidestepping the DMCA entirely. Some quotes: The plaintiff “has not pointed to any authority to support the proposition that YouTube was under a legal obligation to conduct its investigation into Business Casual’s complaint on a more compressed timeline” “Business Causal has failed to claim plausibly that any purported delay by YouTube constituted active, volitional conduct that caused TV-Novosti’s alleged infringement” That case was significant for a bunch of other reasons, too. See discussion at https://blog.ericgoldman.org/archives/2022/03/youtube-defeats-copyright-lawsuit-for-not-removing-users-videos-quickly-enough-business-casual-v-youtube.htm https://blog.ericgoldman.org/archives/2022/03/youtube-defeat...
  - mindslight 3y ago
    Doh, I must have confused some provider's policy with the law for the 24 hour thing. Still I'd make the point that the processing of a DMCA notice and the takedown generally happen simultaneously (regardless of delays), as opposed to say giving the uploader enough time to respond with a counterclaim and avoid an interruption in service. That is a very interesting case! The part about the DMCA not applying to most Youtube takedowns (because the legit uploader has given Youtube a license) is particularly surprising, despite being a straightforward implication of the law.

hakfoo 3y ago

I think the secondary risk factor is that access to the legal system is expensive and time-consuming, especially for an individual. A counterclaim process, even if as streamlined and fully supported as possible, is still a legal operation which involves time and money that many people are not going to have, especially for small-scale and legitimate fair-use scenarios. If you copyright claim some video from Sony or IBM, they've got a legal team on retainer to get it back up. A top-tier "content creator" who's earned six or seven figures and his career depends on the video staying up might hire a lawyer and fight for it. But the guy who's using a video clip as a fair-use part of a non-commercial discussion is probably going to fold instead of going out of pocket to defend himself. So we'd see the system falling back to "no response/takedown" for many important real-world use cases anyway. If DMCA spam had a cost to it-- perhaps a deposit that had to be filed with the court, refundable if there is no counterclaim, or actual prosecution of bad-faith actors for perjury, that might help make it a tradeoff rather than a wholesale giveaway to the copyright industry.

jorams 3y ago

> Legal Entity vs Legal Entity defaults to keep up. Note that it only does so after a waiting period of 10-14 days after the counterclaim. There's plenty of cases where a bullshit takedown is enough to destroy the value of the material taken down.

MichaelZuo 3y ago
I can't think of any legitimate video upload scenario that has it's value 'destroyed' by being unavailable for 10-14 days. Can you name some examples?

mindslight 3y ago

No, the DMCA itself is a terribly one-sided law, from the same place as every other law unilaterally written and forced on us by moneyed interests. It only seems halfway reasonable because its passing happened so long ago, like the CFAA. The DMCA makes the target spill their real world identity, submit to US jurisdiction, requires a one day deadline for takedown but a two week waiting period for something to be put back up, and carries effectively no penalty for incorrect/fraudulent takedowns. Never mind its draconian "anti-circumvention" provisions that continue to plague basic interoperability. It might as well have been called the Sonny Bono Fuck Computers Act.

trogdor 3y ago
>requires a one day deadline for takedown The DMCA does not require takedown within one day. It requires “expeditious” removal. But courts have held that response times ranging from 5 to 14 days are expeditious, and in a recent case against YouTube (Business Casual v YouTube), a 23-day delay was excused because the court applied the standard for purposes of volitional conduct and direct infringement, sidestepping the DMCA entirely. Some quotes: The plaintiff “has not pointed to any authority to support the proposition that YouTube was under a legal obligation to conduct its investigation into Business Casual’s complaint on a more compressed timeline” “Business Causal has failed to claim plausibly that any purported delay by YouTube constituted active, volitional conduct that caused TV-Novosti’s alleged infringement” That case was significant for a bunch of other reasons, too. See discussion at https://blog.ericgoldman.org/archives/2022/03/youtube-defeats-copyright-lawsuit-for-not-removing-users-videos-quickly-enough-business-casual-v-youtube.htm https://blog.ericgoldman.org/archives/2022/03/youtube-defeat...
- mindslight 3y ago
  Doh, I must have confused some provider's policy with the law for the 24 hour thing. Still I'd make the point that the processing of a DMCA notice and the takedown generally happen simultaneously (regardless of delays), as opposed to say giving the uploader enough time to respond with a counterclaim and avoid an interruption in service. That is a very interesting case! The part about the DMCA not applying to most Youtube takedowns (because the legit uploader has given Youtube a license) is particularly surprising, despite being a straightforward implication of the law.