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YouTube goes beyond what the law requires. If YouTube followed the law, they'd accept a DMCA notice from a purported copyright holder and take a video down, the

YouTube goes beyond what the law requires. If YouTube followed the law, they'd accept a DMCA notice from a purported copyright holder and take a video down, then accept a counter-notice from the video poster and put the video back up, without question, and then the recourse the purported copyright holder has at that point if they still think the video is infringing is to sue the video poster and not YouTube. And if they don't sue, the video stays up. What YouTube does instead, which is absolutely unacceptable and far beyond what the law requires, is put the purported copyright holder in charge of judging the video poster's appeal, and naturally they tend to say "no". No counter-notice mechanism, video doesn't go back up.

trogdor 3y ago
Your description of how Content ID works on YouTube is wrong. When a creator receives a Content ID claim, that’s the beginning of a process, not the end. Content ID claims can be disputed, and during the dispute, all revenue from the video is held in escrow, eventually going to whomever prevails in the dispute. The first level of the dispute process is essentially the uploader asking the claimant to reconsider, with the option to provide a brief explanation of why the uploader believes the claim is invalid. If the dispute is rejected, that’s still not the end of the story. The uploader can press the dispute further. Doing so forces the claimant to either abandon their claim, or ‘upgrade’ it to a formal DMCA takedown. If a takedown is issued and the uploader believes their work is not infringing, they can respond with a counter-notification, which forces the claimant to either (a) sue the uploader within ten days, or (b) lose the dispute. In the latter case, the video goes back up and any escrow revenue - along with all future revenue - goes to the uploader instead of the copyright claimant.
- FireBeyond 3y ago
  His description is not wrong. You are conflating the two things. In the Content ID system, as he said, the claimant is the only arbiter of the claim, and the appeal. If it's not resolved, by the claimant, then it exits the Content ID system and then, and only then, can be handled by the DMCA process.
  - trogdor 3y ago
    Isn’t that I what I wrote? Yes, the claimant is the only arbiter of the Content ID appeal, but if the uploader wants to take things further, they can force the matter from a Content ID claim to a DMCA takedown, which can ultimately be decided by a court - if a takedown is filed, a counter-notification is filed, and the rightsholder decides to sue. It is not permanently in the hands of the claimant. If the uploader believes they are not infringing with enough conviction that they are willing to potentially be sued over it, they can turn a Content ID claim into a legal matter. And if the rightsholder backs down, the uploader wins. The person I was responding to claimed that YouTube doesn’t follow the law because they don’t follow the DMCA process in relation to Content ID. This is what they wrote: >What YouTube does instead, which is absolutely unacceptable and far beyond what the law requires, is put the purported copyright holder in charge of judging the video poster's appeal, and naturally they tend to say "no". No counter-notice mechanism, video doesn't go back up. While that is, of course, technically true, in reality it’s not, since nearly [0] all Content ID claims can be turned into DMCA takedowns if the uploader is dissatisfied with the result of their Content ID appeal. And when that happens, there is the counter-notice mechanism that the parent comment claimed does not exist. [0] A very small minority of takedowns can’t be appealed due to YouTube’s contractual obligations with some major studios. I don’t know for sure, but I believe those contracts are intended to make it so people can’t upload copies, let’s say, of obviously infringing feature films, and then force Sony Pictures to go through the DMCA takedown process with what may be an eleven year old kid in Vietnam, who would be all-but-impossible to sue.
    - JoshTriplett 3y ago
      > A very small minority of takedowns can’t be appealed due to YouTube’s contractual obligations with some major studios. I think you may be underestimating the number of takedowns that are impossible to appeal. Also: > I don’t know for sure, but I believe those contracts are intended to make it so people can’t upload copies, let’s say, of obviously infringing feature films, and then force Sony Pictures to go through the DMCA takedown process with what may be an eleven year old kid in Vietnam, who would be all-but-impossible to sue. That description seems slanted to the most favorable possible case for Sony and YouTube, there. A very common case is "used two seconds of footage for fair use commentary on it", or "used no footage at all, and the claim is a mistake", and those claims can't be appealed either.
- JoshTriplett 3y ago
  > If the dispute is rejected, that’s still not the end of the story. The uploader can press the dispute further. Doing so forces the claimant to either abandon their claim, or ‘upgrade’ it to a formal DMCA takedown. If a takedown is issued and the uploader believes their work is not infringing, they can respond with a counter-notification, which forces the claimant to either (a) sue the uploader within ten days, or (b) lose the dispute. In the latter case, the video goes back up and any escrow revenue - along with all future revenue - goes to the uploader instead of the copyright claimant. Many video creators have reported not being given that option, and having the claimant's rejection being treated as the end of the process with no further recourse. If YouTube reliably always gave the option to switch to the DMCA process, to everyone, that would be less of a problem.

trogdor 3y ago

Your description of how Content ID works on YouTube is wrong. When a creator receives a Content ID claim, that’s the beginning of a process, not the end. Content ID claims can be disputed, and during the dispute, all revenue from the video is held in escrow, eventually going to whomever prevails in the dispute. The first level of the dispute process is essentially the uploader asking the claimant to reconsider, with the option to provide a brief explanation of why the uploader believes the claim is invalid. If the dispute is rejected, that’s still not the end of the story. The uploader can press the dispute further. Doing so forces the claimant to either abandon their claim, or ‘upgrade’ it to a formal DMCA takedown. If a takedown is issued and the uploader believes their work is not infringing, they can respond with a counter-notification, which forces the claimant to either (a) sue the uploader within ten days, or (b) lose the dispute. In the latter case, the video goes back up and any escrow revenue - along with all future revenue - goes to the uploader instead of the copyright claimant.

FireBeyond 3y ago
His description is not wrong. You are conflating the two things. In the Content ID system, as he said, the claimant is the only arbiter of the claim, and the appeal. If it's not resolved, by the claimant, then it exits the Content ID system and then, and only then, can be handled by the DMCA process.
- trogdor 3y ago
  Isn’t that I what I wrote? Yes, the claimant is the only arbiter of the Content ID appeal, but if the uploader wants to take things further, they can force the matter from a Content ID claim to a DMCA takedown, which can ultimately be decided by a court - if a takedown is filed, a counter-notification is filed, and the rightsholder decides to sue. It is not permanently in the hands of the claimant. If the uploader believes they are not infringing with enough conviction that they are willing to potentially be sued over it, they can turn a Content ID claim into a legal matter. And if the rightsholder backs down, the uploader wins. The person I was responding to claimed that YouTube doesn’t follow the law because they don’t follow the DMCA process in relation to Content ID. This is what they wrote: >What YouTube does instead, which is absolutely unacceptable and far beyond what the law requires, is put the purported copyright holder in charge of judging the video poster's appeal, and naturally they tend to say "no". No counter-notice mechanism, video doesn't go back up. While that is, of course, technically true, in reality it’s not, since nearly [0] all Content ID claims can be turned into DMCA takedowns if the uploader is dissatisfied with the result of their Content ID appeal. And when that happens, there is the counter-notice mechanism that the parent comment claimed does not exist. [0] A very small minority of takedowns can’t be appealed due to YouTube’s contractual obligations with some major studios. I don’t know for sure, but I believe those contracts are intended to make it so people can’t upload copies, let’s say, of obviously infringing feature films, and then force Sony Pictures to go through the DMCA takedown process with what may be an eleven year old kid in Vietnam, who would be all-but-impossible to sue.
  - JoshTriplett 3y ago
    > A very small minority of takedowns can’t be appealed due to YouTube’s contractual obligations with some major studios. I think you may be underestimating the number of takedowns that are impossible to appeal. Also: > I don’t know for sure, but I believe those contracts are intended to make it so people can’t upload copies, let’s say, of obviously infringing feature films, and then force Sony Pictures to go through the DMCA takedown process with what may be an eleven year old kid in Vietnam, who would be all-but-impossible to sue. That description seems slanted to the most favorable possible case for Sony and YouTube, there. A very common case is "used two seconds of footage for fair use commentary on it", or "used no footage at all, and the claim is a mistake", and those claims can't be appealed either.
JoshTriplett 3y ago
> If the dispute is rejected, that’s still not the end of the story. The uploader can press the dispute further. Doing so forces the claimant to either abandon their claim, or ‘upgrade’ it to a formal DMCA takedown. If a takedown is issued and the uploader believes their work is not infringing, they can respond with a counter-notification, which forces the claimant to either (a) sue the uploader within ten days, or (b) lose the dispute. In the latter case, the video goes back up and any escrow revenue - along with all future revenue - goes to the uploader instead of the copyright claimant. Many video creators have reported not being given that option, and having the claimant's rejection being treated as the end of the process with no further recourse. If YouTube reliably always gave the option to switch to the DMCA process, to everyone, that would be less of a problem.