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It is perfectly clear that YouTube can stop it. As the article points out, we know there are things YouTube can do because those are the very same things The Ve

It is perfectly clear that YouTube can stop it. As the article points out, we know there are things YouTube can do because those are the very same things The Verge asked about and YouTube refused to answer. The DMCA is broken, yes, but YouTube has made it worse with their kind-of-but-not-actually-DMCA counter-claim process. If they really wanted to solve it, here's an idea: if you get a takedown notice you also get a button that says "I am sure my content does not infringe copyright and I'm willing to go to court for it". YouTube reinstates your content and, if the entity with the claim disagrees, they can take you personally to court. Is this good? No, but that's on the DMCA. Is it better than now, when you have no recourse? I'd say yes.

ToucanLoucan 2y ago
They wouldn't even need to go that far. The current way YouTube's system works is so deck-stacked against the creator to a ludicrous degree. Basically any "copyright holder" just has to say "this belongs to me" and YouTube immediately funnels all revenue for the video to that holder, with basically no oversight whatsoever, and as anyone in the space will tell you, a video makes 90% of it's money in the first few days which means these holders can grab the monetization right out from under a creator and steal just, all their fucking money. It's ridiculous. Like all you would have to do to, perhaps not fix, but heavily mitigate this, would be to have YouTube just... hold onto the revenue until the dispute is resolved. It's barely even a change. And most of the time, when creators do counter the claims, they're eventually dropped but again because of how that system works, YouTube has already funneled all their money to the claimant, irrespective of the determined validity of the claim. And it would discourage bullshit claims because even as low-rent a scam as this is, it is some amount of work, and if there's no payout, you necessarily reduce the number of scammers who will attempt it. I don't know if that's a DMCA thing, I admittedly haven't researched it in a long time, but I don't see how that would put YouTube at any kind of liability. Any reader, do feel free to correct me.
- xvector 2y ago
  Big tech has such a twisted incentive structure for devs that I don't see this getting solved unless it impacts YouTube's bottom line. Execs won't care, and ICs will be actively penalized for fixing this vs working on "business priorities."
  - ToucanLoucan 2y ago
    God I wish there was a decent competitor to YouTube. They get away with so much horseshit because there's just nobody else that can match their service scale and network effects.
    - HeatrayEnjoyer 2y ago
      Why is that? Video streaming isn't the behemoth it was last decade.
      - scrose 2y ago
        Google owns the platform and the ad network / marketplace. A lot of videos ‘lose’ money and just take up space. Any viable competitor to YouTube would need a solution that allows signups, watches and video uploads, without requiring a fee. Which typically means displaying ads. For Google the ad network is already there. For anyone else, they need to either create their own marketplace, or have Google (or some other network) take a large cut of their ad revenue. This is likely why the only other ‘competitors’ you see are peering based or based on a subscription model. Neither of which can really compete with YouTube which really doesn’t need to *directly* make any money
    - rad_gruchalski 2y ago
      And how long do you think it would take until the competitor would end up in the same situation? How can the god help with it? And which god?
      - AnthonyMouse 2y ago
        > And how long do you think it would take until the competitor would end up in the same situation? YouTube ended up in that situation for two reasons. First, the original YouTube before Google bought it was playing fast and loose with the law and was in the process of getting sued over it after Google bought them. Second, Google wants to license Hollywood content for YouTube TV etc. So between wanting to settle the lawsuit and wanting to sell their soul and become Comcast, Google agreed to do a lot of this draconian BS that isn't otherwise required by law. A competing service that just wants to be YouTube without being YouTube TV could plausibly follow the law without steamrolling the little guy quite as much.
- MichaelZuo 2y ago
  Why would they implement this instead of de-monetizing it completely?
  - ToucanLoucan 2y ago
    I mean, then YouTube is substantially cutting into their own revenue too, but even that would be better than just handing over all the revenue to an unverified 3rd party that clicked a button.
  - monocasa 2y ago
    They're an ad company at the end of the day; they still want their cut of the monetization. Additionally both sides of the dispute normally still want the monetization, they just disagree about who gets the proceeds. And because of the time value curve of YouTube videos (most make something like 90% of their revenue in the first few days), demonetizing has a good chance fo essentially erasing the revenue of the video for the creator.
- infinitesoup 2y ago
  > hold onto the revenue until the dispute is resolved They do that: https://support.google.com/youtube/answer/7000961?hl=en https://support.google.com/youtube/answer/7000961?hl=en
  - hysan 2y ago
    Caveat is if you file the counter within 5 days. From listening to a few creators describe the counter filing process, you need to gather a lot of evidence to prove that you are not infringing. It apparently takes a lot of time and what happens is that targeted harassment very easily turns into a DOS-like attack. So 5 days is an unreasonably short time window that puts an extreme burden on the content creator. Edit to quote the full section because the cherry picked quote is misleading: > If you dispute a claim within 5 days, any revenue from the video will be held, starting with the first day the claim was placed. If you dispute a Content ID claim after 5 days from the original claim date, we'll start holding revenue the date the dispute is made.
    - malfist 2y ago
      There's a guy on YouTube that does discussions about star wars, and has an into music that he got the rights to use from the author. Someone who didn't have the rights resampled the original song and submitted it to a label (not sure that's the right term), and the label proceeded to DMCA every single video the guy had posted. Over a thousand videos, having to gather all that info for all of them, go through the appeals process on all of them. For him it was a manual action one at a time. From the label they have an API to bulk initiate claims
      - asddubs 2y ago
        There was also the example of family guy copy-pasting a 10 year old youtube video of an exploit of an old NES game into an episode, and that video which predates the episode by 10 years (or something) then got taken down because it infringed on the family guy episode that copied the video.
    - jay_kyburz 2y ago
- kmeisthax 2y ago
  It's not a DMCA thing at all. DMCA 512 is actually pretty straightforward, you're referring to YouTube Content ID, a completely separate parallel takedown system that YouTube made at the behest of their content licensors. If the media companies had their way, everything would work like YouTube Content ID, because that's the system that minimizes their enforcement cost. What they want is to make everything Someone Else's Problem.
ndiddy 2y ago
Youtube already has that system. I had to go through the process due to a similar situation with someone falsely content ID'ing my video. In that case it was someone uploading music they didn't own to some online music distribution service. Basically the way it works is after you dispute the content ID claim and whoever filed it still says the content is theirs, you can escalate the dispute to an actual DMCA counternotice. After this, your video gets restored and the copyright strike gets taken off your channel. I think the reason why the person in the article didn't do this is that the DMCA counternotice process requires the person filing the counternotice to provide their full name and address so they can be served if the rightsholder decides to sue them. With problems like swatting going around, I think many people would be reluctant to provide that information to someone who they already know is trying to mess with them.
- mbrumlow 2y ago
  [flagged]
- wongarsu 2y ago
  Yet YouTube's system takes a lot of time from the time the content is claimed to the time you can escalate to an actual DMCA. In this time your video is down or has its revenue redirected. And if your content gets too many frivolous claims your account is taken down by YouTube's three strike policy before you have finished the dispute process for the first video. A single button to immediately and without human review or notice period restore the video and monetization, remove the strike, and declare you are willing to solve it in court would solve a lot of the issues with ContentID abuse on YouTube. Such a system would likely have to sit behind strict identity verification to prevent abuse, and some people wouldn't like that. But that's the price for sharing a platform with some very blatant infringers
  - ndiddy 2y ago
    Your idea for a "single button to immediately restore the video" system would violate the takedown process outlined in the DMCA. The way it works is that after someone sends a takedown request, the content can't be restored until 10 business days after the person who uploaded it sends a counter-notice. This gives whoever sent the takedown request enough time to decide whether they want to file a lawsuit and keep the content down. Agreed that Youtube's system has problems with how long it gives claimants to respond to the initial content ID dispute and with people spamming false claims. It's definitely not a perfect system.
Vampiero 2y ago
Consider the following: I make a form of parody that is known as a Youtube Poop. It was all the rage last decade, but now it's a dying art. In part because of these stupid DMCA rules preventing people like me from expressing their creativity. I can appeal the strikes, but every time I do so I risk losing my channel forever. I don't monetize, and I only make parodies of stuff that came out over 10 years ago. So I've already accepted that the existence of my channel is ephemeral and that one day it will probably disappear forever. But I don't have any other platform to go to if I want to share my 5-10 minutes long edits with more than 4 people. Why am I not allowed to continue an art form that owes its name to the platform that spawned it? Is protecting the copyright of some random anime adaptation or cartoon (that no one gives a shit about anymore) seriously more important than creating novel art? Copyright lasts WAY too much. And no, I don't really want to go to court over this bullshit. But I am firmly convinced that it's in my rights to produce it. It's just that what counts as "my rights" depends entirely on the jurisdiction, because the law is a joke meant to protect people who can afford good lawyers -- it's not meant to actually enforce justice. Or rather, the concept of justice is so malleable that it basically means nothing in a globalized world. Also, I'm from Europe. Which court should I go to when I infringe on an american dub copyright for a japanese cartoon, exactly?
- mulmen 2y ago
  Nobody has a right to an audience. > Also, I'm from Europe. Which court should I go to when I infringe on an american dub copyright for a japanese cartoon, exactly? Well the copyright and the site are American so probably America.
  - Vampiero 2y ago
    > Nobody has a right to an audience. That's literally what copyright is
    - FireBeyond 2y ago
      No, it's literally not. Copyright is that you have the right to potentially benefit from your work. You can broadcast it. You don't have any kind of right to an audience to watch it. I don't even know what that would look like.
Aunche 2y ago
> I am sure my content does not infringe copyright and I'm willing to go to court for it This is exactly what the YouTube copyright counter notification is. The problem is that YouTubers aren't lawyers, so they don't want to risk going to court. https://support.google.com/youtube/answer/2807684?hl=en https://support.google.com/youtube/answer/2807684?hl=en
- blueflow 2y ago
  Then hire a lawyer & sue, you have to enforce your rights.
  - Aunche 2y ago
    Right. Part of the reason why it's hard to start a business is having to deal with unfair bullshit. Youtube streamlines enough of the process to get people started relatively easily, but they get a lot of shit from these same creators for not doing everything for them.
    - sleepybrett 2y ago
      they get a lot of shit because most youtubers would be forced to hand over their pii (name and address) to the reporter. Some reporters are doing this solely to get that information (stalkers, doxxers, etc). It's unclear, to me, if youtubers could proxy this through an attorney.
      - Aunche 2y ago
        > It's unclear, to me, if youtubers could proxy this through an attorney. Yes. An authorized representative is allowed to submit a counter notification on your behalf, so they would put their name and address instead.
    - JohnMakin 2y ago
      Because all creators have the means and resources to hire a lawyer to fight forces much more powerful and wealthier than they are. This is blaming the victim.
cactusplant7374 2y ago
Why shouldn’t Nintendo have an official YouTube mandated account for takedowns? Is there a legal requirement that they don’t validate the rights holder?
kmeisthax 2y ago
That exists, it's called a DMCA 512 counternotice; if you're particularly monied you can even sue under 512(f) for perjury. The problem is that the videos are actually infringing, but the owner of the content does not want to sue. Under very basic principles of law, only the owner or exclusive licensee of a copyright has standing to sue for copyright infringement. Furthermore, copyright law does not obligate copyright owners sue or license like trademark does. Therefore, for uses which are inconvenient[0] to sell a license for, but not damaging enough to go to court, copyright owners will often tacitly permit the use by simply failing to enforce their rights. The problem is that courts have a very high bar to recognize tacit permission as a license. It's not impossible; there are some famous examples of 'implied license', but no competent lawyer would actually recommend you go to court and claim such a thing. One particular complication would be that if, say, you sued Fake Nintendo, and claimed fair use as a rationale for using Real Nintendo's content, Real Nintendo might want to actually sue you just to kill the fair use claim[1]. Just as an example of how complicated tacit permission can get: Bungie's Destiny 2 is a perpetually updated "live service" game with an ongoing policy of removing content to keep download sizes reasonable[2]. As a result, there is music in the game that is no longer accessible. Bungie does not want people uploading the game soundtrack to YouTube, but they also don't want to turn that removed music into lost media, so they had a policy of not taking down "music archivists" that only uploaded the removed content. One of the YouTubers that got taken down for reuploading live Destiny 2 music got pissed about it and started filing fraudulent DMCA takedowns in Bungie's name to music archivists. Bungie tried to get in contact with YouTube to have the fraudulent takedowns removed, but it took over a week of PR damage to everyone involved (and, if I remember, actually suing the idiot kid that did this) before YouTube would restore the videos. If there is one thing that is badly drafted (and not just irritating) about the current DMCA 512 system, it's that there is no procedure for third-party counter-claimants to challenge fraudulent or mistaken claims. However, the current mechanisms of copyright make that impossible to provide. There is no database of who-owns-what and who-licensed-what; rights owners do not want such a database to exist; and it is entirely possible for multiple parties to have standing to sue the same person for the same act of infringement on the same work. Under regular copyright law, if Nintendo wants to sue you for, say, using the officially-licensed Mario DLC in your Minecraft streams, Microsoft can't intervene and stop them on the basis that they own Minecraft. How, exactly, should YouTube proceed if they have two parties swearing under oath conflicting information, and not obeying the right one puts you on the hook for billions of dollars in copyright liabilities? The current system is designed to make it easy to cheaply operate social media, not to actually be fair to its users or to stop online censorship. [0] Reasons for this inconvenience can include: - The transaction cost of negotiating a watertight contract for a very small deal. Generally speaking you don't want to make deals with understandable / 'plain language' licensing terms for the same reason why web browsers don't have an API to load unsigned arbitrary kernel modules from third-party servers. - The licensing in question being contrary to exclusive licensing arrangements with other companies - though exclusive licensing contracts can also mandate the licensor or licensee enforce each other's rights to prevent this sort of thing [1] In general, common law mechanisms like fair use create an incentive to sue, which is a very bad thing for people who don't like getting sued. [2] This is a terrible policy, but the policies of console manufacturers require you to ship games as packages, so you couldn't just stream in assets as needed.
dclowd9901 2y ago
Yep. Really very sick of these content platforms throwing up their hands and waving all responsibility on everything. We would never entertain newspapers violating copyright or fake news bullshit.

ToucanLoucan 2y ago

They wouldn't even need to go that far. The current way YouTube's system works is so deck-stacked against the creator to a ludicrous degree. Basically any "copyright holder" just has to say "this belongs to me" and YouTube immediately funnels all revenue for the video to that holder, with basically no oversight whatsoever, and as anyone in the space will tell you, a video makes 90% of it's money in the first few days which means these holders can grab the monetization right out from under a creator and steal just, all their fucking money. It's ridiculous. Like all you would have to do to, perhaps not fix, but heavily mitigate this, would be to have YouTube just... hold onto the revenue until the dispute is resolved. It's barely even a change. And most of the time, when creators do counter the claims, they're eventually dropped but again because of how that system works, YouTube has already funneled all their money to the claimant, irrespective of the determined validity of the claim. And it would discourage bullshit claims because even as low-rent a scam as this is, it is some amount of work, and if there's no payout, you necessarily reduce the number of scammers who will attempt it. I don't know if that's a DMCA thing, I admittedly haven't researched it in a long time, but I don't see how that would put YouTube at any kind of liability. Any reader, do feel free to correct me.

xvector 2y ago
Big tech has such a twisted incentive structure for devs that I don't see this getting solved unless it impacts YouTube's bottom line. Execs won't care, and ICs will be actively penalized for fixing this vs working on "business priorities."
- ToucanLoucan 2y ago
  God I wish there was a decent competitor to YouTube. They get away with so much horseshit because there's just nobody else that can match their service scale and network effects.
  - HeatrayEnjoyer 2y ago
    Why is that? Video streaming isn't the behemoth it was last decade.
    - scrose 2y ago
      Google owns the platform and the ad network / marketplace. A lot of videos ‘lose’ money and just take up space. Any viable competitor to YouTube would need a solution that allows signups, watches and video uploads, without requiring a fee. Which typically means displaying ads. For Google the ad network is already there. For anyone else, they need to either create their own marketplace, or have Google (or some other network) take a large cut of their ad revenue. This is likely why the only other ‘competitors’ you see are peering based or based on a subscription model. Neither of which can really compete with YouTube which really doesn’t need to *directly* make any money
  - rad_gruchalski 2y ago
    And how long do you think it would take until the competitor would end up in the same situation? How can the god help with it? And which god?
    - AnthonyMouse 2y ago
      > And how long do you think it would take until the competitor would end up in the same situation? YouTube ended up in that situation for two reasons. First, the original YouTube before Google bought it was playing fast and loose with the law and was in the process of getting sued over it after Google bought them. Second, Google wants to license Hollywood content for YouTube TV etc. So between wanting to settle the lawsuit and wanting to sell their soul and become Comcast, Google agreed to do a lot of this draconian BS that isn't otherwise required by law. A competing service that just wants to be YouTube without being YouTube TV could plausibly follow the law without steamrolling the little guy quite as much.
MichaelZuo 2y ago
Why would they implement this instead of de-monetizing it completely?
- ToucanLoucan 2y ago
  I mean, then YouTube is substantially cutting into their own revenue too, but even that would be better than just handing over all the revenue to an unverified 3rd party that clicked a button.
- monocasa 2y ago
  They're an ad company at the end of the day; they still want their cut of the monetization. Additionally both sides of the dispute normally still want the monetization, they just disagree about who gets the proceeds. And because of the time value curve of YouTube videos (most make something like 90% of their revenue in the first few days), demonetizing has a good chance fo essentially erasing the revenue of the video for the creator.
infinitesoup 2y ago
> hold onto the revenue until the dispute is resolved They do that: https://support.google.com/youtube/answer/7000961?hl=en https://support.google.com/youtube/answer/7000961?hl=en
- hysan 2y ago
  Caveat is if you file the counter within 5 days. From listening to a few creators describe the counter filing process, you need to gather a lot of evidence to prove that you are not infringing. It apparently takes a lot of time and what happens is that targeted harassment very easily turns into a DOS-like attack. So 5 days is an unreasonably short time window that puts an extreme burden on the content creator. Edit to quote the full section because the cherry picked quote is misleading: > If you dispute a claim within 5 days, any revenue from the video will be held, starting with the first day the claim was placed. If you dispute a Content ID claim after 5 days from the original claim date, we'll start holding revenue the date the dispute is made.
  - malfist 2y ago
    There's a guy on YouTube that does discussions about star wars, and has an into music that he got the rights to use from the author. Someone who didn't have the rights resampled the original song and submitted it to a label (not sure that's the right term), and the label proceeded to DMCA every single video the guy had posted. Over a thousand videos, having to gather all that info for all of them, go through the appeals process on all of them. For him it was a manual action one at a time. From the label they have an API to bulk initiate claims
    - asddubs 2y ago
      There was also the example of family guy copy-pasting a 10 year old youtube video of an exploit of an old NES game into an episode, and that video which predates the episode by 10 years (or something) then got taken down because it infringed on the family guy episode that copied the video.
  - jay_kyburz 2y ago
kmeisthax 2y ago
It's not a DMCA thing at all. DMCA 512 is actually pretty straightforward, you're referring to YouTube Content ID, a completely separate parallel takedown system that YouTube made at the behest of their content licensors. If the media companies had their way, everything would work like YouTube Content ID, because that's the system that minimizes their enforcement cost. What they want is to make everything Someone Else's Problem.

ndiddy 2y ago

Youtube already has that system. I had to go through the process due to a similar situation with someone falsely content ID'ing my video. In that case it was someone uploading music they didn't own to some online music distribution service. Basically the way it works is after you dispute the content ID claim and whoever filed it still says the content is theirs, you can escalate the dispute to an actual DMCA counternotice. After this, your video gets restored and the copyright strike gets taken off your channel. I think the reason why the person in the article didn't do this is that the DMCA counternotice process requires the person filing the counternotice to provide their full name and address so they can be served if the rightsholder decides to sue them. With problems like swatting going around, I think many people would be reluctant to provide that information to someone who they already know is trying to mess with them.

mbrumlow 2y ago
[flagged]
wongarsu 2y ago
Yet YouTube's system takes a lot of time from the time the content is claimed to the time you can escalate to an actual DMCA. In this time your video is down or has its revenue redirected. And if your content gets too many frivolous claims your account is taken down by YouTube's three strike policy before you have finished the dispute process for the first video. A single button to immediately and without human review or notice period restore the video and monetization, remove the strike, and declare you are willing to solve it in court would solve a lot of the issues with ContentID abuse on YouTube. Such a system would likely have to sit behind strict identity verification to prevent abuse, and some people wouldn't like that. But that's the price for sharing a platform with some very blatant infringers
- ndiddy 2y ago
  Your idea for a "single button to immediately restore the video" system would violate the takedown process outlined in the DMCA. The way it works is that after someone sends a takedown request, the content can't be restored until 10 business days after the person who uploaded it sends a counter-notice. This gives whoever sent the takedown request enough time to decide whether they want to file a lawsuit and keep the content down. Agreed that Youtube's system has problems with how long it gives claimants to respond to the initial content ID dispute and with people spamming false claims. It's definitely not a perfect system.

Vampiero 2y ago

Consider the following: I make a form of parody that is known as a Youtube Poop. It was all the rage last decade, but now it's a dying art. In part because of these stupid DMCA rules preventing people like me from expressing their creativity. I can appeal the strikes, but every time I do so I risk losing my channel forever. I don't monetize, and I only make parodies of stuff that came out over 10 years ago. So I've already accepted that the existence of my channel is ephemeral and that one day it will probably disappear forever. But I don't have any other platform to go to if I want to share my 5-10 minutes long edits with more than 4 people. Why am I not allowed to continue an art form that owes its name to the platform that spawned it? Is protecting the copyright of some random anime adaptation or cartoon (that no one gives a shit about anymore) seriously more important than creating novel art? Copyright lasts WAY too much. And no, I don't really want to go to court over this bullshit. But I am firmly convinced that it's in my rights to produce it. It's just that what counts as "my rights" depends entirely on the jurisdiction, because the law is a joke meant to protect people who can afford good lawyers -- it's not meant to actually enforce justice. Or rather, the concept of justice is so malleable that it basically means nothing in a globalized world. Also, I'm from Europe. Which court should I go to when I infringe on an american dub copyright for a japanese cartoon, exactly?

mulmen 2y ago
Nobody has a right to an audience. > Also, I'm from Europe. Which court should I go to when I infringe on an american dub copyright for a japanese cartoon, exactly? Well the copyright and the site are American so probably America.
- Vampiero 2y ago
  > Nobody has a right to an audience. That's literally what copyright is
  - FireBeyond 2y ago
    No, it's literally not. Copyright is that you have the right to potentially benefit from your work. You can broadcast it. You don't have any kind of right to an audience to watch it. I don't even know what that would look like.

Aunche 2y ago

> I am sure my content does not infringe copyright and I'm willing to go to court for it This is exactly what the YouTube copyright counter notification is. The problem is that YouTubers aren't lawyers, so they don't want to risk going to court. https://support.google.com/youtube/answer/2807684?hl=en https://support.google.com/youtube/answer/2807684?hl=en

blueflow 2y ago
Then hire a lawyer & sue, you have to enforce your rights.
- Aunche 2y ago
  Right. Part of the reason why it's hard to start a business is having to deal with unfair bullshit. Youtube streamlines enough of the process to get people started relatively easily, but they get a lot of shit from these same creators for not doing everything for them.
  - sleepybrett 2y ago
    they get a lot of shit because most youtubers would be forced to hand over their pii (name and address) to the reporter. Some reporters are doing this solely to get that information (stalkers, doxxers, etc). It's unclear, to me, if youtubers could proxy this through an attorney.
    - Aunche 2y ago
      > It's unclear, to me, if youtubers could proxy this through an attorney. Yes. An authorized representative is allowed to submit a counter notification on your behalf, so they would put their name and address instead.
  - JohnMakin 2y ago
    Because all creators have the means and resources to hire a lawyer to fight forces much more powerful and wealthier than they are. This is blaming the victim.

cactusplant7374 2y ago

Why shouldn’t Nintendo have an official YouTube mandated account for takedowns? Is there a legal requirement that they don’t validate the rights holder?

kmeisthax 2y ago

That exists, it's called a DMCA 512 counternotice; if you're particularly monied you can even sue under 512(f) for perjury. The problem is that the videos are actually infringing, but the owner of the content does not want to sue. Under very basic principles of law, only the owner or exclusive licensee of a copyright has standing to sue for copyright infringement. Furthermore, copyright law does not obligate copyright owners sue or license like trademark does. Therefore, for uses which are inconvenient[0] to sell a license for, but not damaging enough to go to court, copyright owners will often tacitly permit the use by simply failing to enforce their rights. The problem is that courts have a very high bar to recognize tacit permission as a license. It's not impossible; there are some famous examples of 'implied license', but no competent lawyer would actually recommend you go to court and claim such a thing. One particular complication would be that if, say, you sued Fake Nintendo, and claimed fair use as a rationale for using Real Nintendo's content, Real Nintendo might want to actually sue you just to kill the fair use claim[1]. Just as an example of how complicated tacit permission can get: Bungie's Destiny 2 is a perpetually updated "live service" game with an ongoing policy of removing content to keep download sizes reasonable[2]. As a result, there is music in the game that is no longer accessible. Bungie does not want people uploading the game soundtrack to YouTube, but they also don't want to turn that removed music into lost media, so they had a policy of not taking down "music archivists" that only uploaded the removed content. One of the YouTubers that got taken down for reuploading live Destiny 2 music got pissed about it and started filing fraudulent DMCA takedowns in Bungie's name to music archivists. Bungie tried to get in contact with YouTube to have the fraudulent takedowns removed, but it took over a week of PR damage to everyone involved (and, if I remember, actually suing the idiot kid that did this) before YouTube would restore the videos. If there is one thing that is badly drafted (and not just irritating) about the current DMCA 512 system, it's that there is no procedure for third-party counter-claimants to challenge fraudulent or mistaken claims. However, the current mechanisms of copyright make that impossible to provide. There is no database of who-owns-what and who-licensed-what; rights owners do not want such a database to exist; and it is entirely possible for multiple parties to have standing to sue the same person for the same act of infringement on the same work. Under regular copyright law, if Nintendo wants to sue you for, say, using the officially-licensed Mario DLC in your Minecraft streams, Microsoft can't intervene and stop them on the basis that they own Minecraft. How, exactly, should YouTube proceed if they have two parties swearing under oath conflicting information, and not obeying the right one puts you on the hook for billions of dollars in copyright liabilities? The current system is designed to make it easy to cheaply operate social media, not to actually be fair to its users or to stop online censorship. [0] Reasons for this inconvenience can include: - The transaction cost of negotiating a watertight contract for a very small deal. Generally speaking you don't want to make deals with understandable / 'plain language' licensing terms for the same reason why web browsers don't have an API to load unsigned arbitrary kernel modules from third-party servers. - The licensing in question being contrary to exclusive licensing arrangements with other companies - though exclusive licensing contracts can also mandate the licensor or licensee enforce each other's rights to prevent this sort of thing [1] In general, common law mechanisms like fair use create an incentive to sue, which is a very bad thing for people who don't like getting sued. [2] This is a terrible policy, but the policies of console manufacturers require you to ship games as packages, so you couldn't just stream in assets as needed.

dclowd9901 2y ago

Yep. Really very sick of these content platforms throwing up their hands and waving all responsibility on everything. We would never entertain newspapers violating copyright or fake news bullshit.