5 ms·

(1) yeah, that doesn't sound right to me. a DMCA takedown notice by any other name is still a DMCA takedown notice. the specifics that you might find in the s

by MWil 13y ago

(1) yeah, that doesn't sound right to me. a DMCA takedown notice by any other name is still a DMCA takedown notice. the specifics that you might find in the statute are the floor (a minimum) so of course YouTube is free to develop their own takedown process that goes above and beyond but it doesn't mean it's somehow opted out of the copyright statutory scheme. (2) Never say never.

nitrogen 13y ago
What I mean by (1) is that if you ask a mutual friend to display a picture I took in her gallery, I ask her politely to take it down, and she voluntarily complies with my request, the DMCA wasn't involved at all. This is how I understand the arrangement between YouTube and the 800lb copyright gorillas.
- MWil 13y ago
  Your example isn't really a good one because your friend isn't a service provider, she's an uploading user to a service provider. So yes, when you go right to the source user, you are somewhat circumventing the DMCA process but imagine how inefficient that is in the most common cases. The point of implementing a proper DMCA notice and takedown system is to take advantage of the DMCA safe harbors. I guarantee YouTube, as a service provider, isn't NOT taking advantage of the DMCA safe harbors and claiming its notice and takedown procedures help to qualify it for such (perhaps even stronger than the default, perhaps not).
  - nitrogen 13y ago
    Your example isn't really a good one because your friend isn't a service provider, she's an uploading user to a service provider. By "gallery" I mean a physical art gallery, so she would be a service provider in my example. In the analogy, she would be YouTube, "I" would be a copyright holder, and "you" would be a YouTube user. The point of implementing a proper DMCA notice and takedown system is to take advantage of the DMCA safe harbors. The safe harbor, as I understand it, protects service providers from copyright holders and users, as long as the service providers register a copyright agent and comply with DMCA notices. Nobody's saying that YouTube doesn't have a registered agent and comply with DMCA notices. Further, there is almost certainly a point in YouTube's ToS that exempts them from liability for taking down content regardless of whether it was due to a DMCA notice. What I'm saying is that YouTube has an additional, private, voluntary takedown process, that doesn't invoke the DMCA at all (and thus no penalty of perjury for falsely claiming to represent the copyright holder). Having this additional process wouldn't jeopardize their safe harbor eligibility, as I understand it. I don't like this situation. It gives enormous power to large copyright holders, with significant collateral damage to independent creators like the Blender Foundation. I just don't see how a case made under 512(f) will turn the tide. ---------------- Maybe I'm misreading the DMCA as a layperson, but it looks like there are two penalties for false DMCA takedowns, neither of which would apply to a voluntary, non-DMCA takedown process: (1) perjury for falsely claiming to represent a copyright holder, and (2) liability under 512(f)(1) for "knowingly materially" misrepresenting a claim. Perjury for falsely claiming to represent a copyright holder comes from this section (apologies if my citation notation is incorrect): 501(c)(3)(A)(vi) A statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed. ---------------- Liability for damages for a "knowing material" misrepresentation comes from this section (emphasis mine): 512(f) Misrepresentations.— Any person who knowingly materially misrepresents under this section— (1) that material or activity is infringing, or (2) that material or activity was removed or disabled by mistake or misidentification, shall be liable for any damages, including costs and attorneys’ fees, incurred by the alleged infringer, by any copyright owner or copyright owner’s authorized licensee, or by a service provider, who is injured by such misrepresentation, as the result of the service provider relying upon such misrepresentation in removing or disabling access to the material or activity claimed to be infringing, or in replacing the removed material or ceasing to disable access to it. I'm using http://www.law.cornell.edu/uscode/text/17/512 http://www.law.cornell.edu/uscode/text/17/512 as my reference.
    - MWil 13y ago
      First, I never even considered that you meant gallery in the traditional sense. Just sounds like that app I use all the time, ha! Second, I get that you are saying that this is some extra, additional, voluntary system - but I also don't see how that's possible. Copyright only exists as a legally recognized utility. Think about what you're saying. It would mean that YouTube is allowing people to say they should be empowered to direct action be taken with respect to some specific content that's been or could be uploaded by another, but it's not because that power is called copyright protection, through which the DMCA is the relevant scheme of copyright protection. It's because they just have some extra volunteer system that says if you want this taken down, they'll take it down. Maybe you need to explain the actual YouTube system to me better because I'm a lawyer and I can analyze the law well enough for myself.
aptwebapps 13y ago
Caveat: Totally not a lawyer. No, it's really not a DMCA takedown notice. DMCA takedown notices are a mechanism whereby a hosting company can qualify for the safe harbor provision of the DMCA. If they comply with the rules of handling such notices they are not liable for any copyright violations of their users. Youtube will still comply with those, or face liability, but they offer this tool to content owners that register with them. As such, it is not a DMCA takedown notice and is not subjected to the penalties of perjury that are laid out in the DMCA's rules about takedown notices. That doesn't mean that no law applies, just that the DMCA's specific rules for DMCA takedown notices don't apply. One question I would love an actual lawyer to answer or comment on is: Does Youtube's prevalence make them a common carrier or have similar implications?
- MWil 13y ago
  Caveat: I am an actual lawyer, I'm just not providing any legal advice to anyone. "but they offer this tool to content owners that register with them. As such, it is not a DMCA takedown notice" The first part of what you said is exactly who DMCA takedown systems are for so I'm not sure I see the "as such" logic. The DMCA takes the uploading user into account almost never, except when they become repeat offenders or "red flags" otherwise. It's sole purpose for existing is to appease content owners. You're intertwining "notice and takedown" with "safe harbor". They are two different sides of the coin. The former gives content owners power and the latter gives service providers a defense.
  - aptwebapps 13y ago
    Yeah, the "as such" was superfluous. And you're correct (if I may put words in your mouth) that the DMCA was drafted for (and by) content owners first, service providers second, and the public at large a distant third. What I thought, but I now have doubts about, was that because this takedown service that Youtube provides was in addition to compliance with regular DMCA takedown notices it would not be subject to the same rules. "You're intertwining "notice and takedown" with "safe harbor"." The point of the takedown system under the DMCA is that compliance with it guarantees (to some extent) safe harbor so I'm not sure how to separate the two.

by MWil 13y ago

nitrogen 13y ago

What I mean by (1) is that if you ask a mutual friend to display a picture I took in her gallery, I ask her politely to take it down, and she voluntarily complies with my request, the DMCA wasn't involved at all. This is how I understand the arrangement between YouTube and the 800lb copyright gorillas.

MWil 13y ago
Your example isn't really a good one because your friend isn't a service provider, she's an uploading user to a service provider. So yes, when you go right to the source user, you are somewhat circumventing the DMCA process but imagine how inefficient that is in the most common cases. The point of implementing a proper DMCA notice and takedown system is to take advantage of the DMCA safe harbors. I guarantee YouTube, as a service provider, isn't NOT taking advantage of the DMCA safe harbors and claiming its notice and takedown procedures help to qualify it for such (perhaps even stronger than the default, perhaps not).
- nitrogen 13y ago
  Your example isn't really a good one because your friend isn't a service provider, she's an uploading user to a service provider. By "gallery" I mean a physical art gallery, so she would be a service provider in my example. In the analogy, she would be YouTube, "I" would be a copyright holder, and "you" would be a YouTube user. The point of implementing a proper DMCA notice and takedown system is to take advantage of the DMCA safe harbors. The safe harbor, as I understand it, protects service providers from copyright holders and users, as long as the service providers register a copyright agent and comply with DMCA notices. Nobody's saying that YouTube doesn't have a registered agent and comply with DMCA notices. Further, there is almost certainly a point in YouTube's ToS that exempts them from liability for taking down content regardless of whether it was due to a DMCA notice. What I'm saying is that YouTube has an additional, private, voluntary takedown process, that doesn't invoke the DMCA at all (and thus no penalty of perjury for falsely claiming to represent the copyright holder). Having this additional process wouldn't jeopardize their safe harbor eligibility, as I understand it. I don't like this situation. It gives enormous power to large copyright holders, with significant collateral damage to independent creators like the Blender Foundation. I just don't see how a case made under 512(f) will turn the tide. ---------------- Maybe I'm misreading the DMCA as a layperson, but it looks like there are two penalties for false DMCA takedowns, neither of which would apply to a voluntary, non-DMCA takedown process: (1) perjury for falsely claiming to represent a copyright holder, and (2) liability under 512(f)(1) for "knowingly materially" misrepresenting a claim. Perjury for falsely claiming to represent a copyright holder comes from this section (apologies if my citation notation is incorrect): 501(c)(3)(A)(vi) A statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed. ---------------- Liability for damages for a "knowing material" misrepresentation comes from this section (emphasis mine): 512(f) Misrepresentations.— Any person who knowingly materially misrepresents under this section— (1) that material or activity is infringing, or (2) that material or activity was removed or disabled by mistake or misidentification, shall be liable for any damages, including costs and attorneys’ fees, incurred by the alleged infringer, by any copyright owner or copyright owner’s authorized licensee, or by a service provider, who is injured by such misrepresentation, as the result of the service provider relying upon such misrepresentation in removing or disabling access to the material or activity claimed to be infringing, or in replacing the removed material or ceasing to disable access to it. I'm using http://www.law.cornell.edu/uscode/text/17/512 http://www.law.cornell.edu/uscode/text/17/512 as my reference.
  - MWil 13y ago
    First, I never even considered that you meant gallery in the traditional sense. Just sounds like that app I use all the time, ha! Second, I get that you are saying that this is some extra, additional, voluntary system - but I also don't see how that's possible. Copyright only exists as a legally recognized utility. Think about what you're saying. It would mean that YouTube is allowing people to say they should be empowered to direct action be taken with respect to some specific content that's been or could be uploaded by another, but it's not because that power is called copyright protection, through which the DMCA is the relevant scheme of copyright protection. It's because they just have some extra volunteer system that says if you want this taken down, they'll take it down. Maybe you need to explain the actual YouTube system to me better because I'm a lawyer and I can analyze the law well enough for myself.

aptwebapps 13y ago

Caveat: Totally not a lawyer. No, it's really not a DMCA takedown notice. DMCA takedown notices are a mechanism whereby a hosting company can qualify for the safe harbor provision of the DMCA. If they comply with the rules of handling such notices they are not liable for any copyright violations of their users. Youtube will still comply with those, or face liability, but they offer this tool to content owners that register with them. As such, it is not a DMCA takedown notice and is not subjected to the penalties of perjury that are laid out in the DMCA's rules about takedown notices. That doesn't mean that no law applies, just that the DMCA's specific rules for DMCA takedown notices don't apply. One question I would love an actual lawyer to answer or comment on is: Does Youtube's prevalence make them a common carrier or have similar implications?

MWil 13y ago
Caveat: I am an actual lawyer, I'm just not providing any legal advice to anyone. "but they offer this tool to content owners that register with them. As such, it is not a DMCA takedown notice" The first part of what you said is exactly who DMCA takedown systems are for so I'm not sure I see the "as such" logic. The DMCA takes the uploading user into account almost never, except when they become repeat offenders or "red flags" otherwise. It's sole purpose for existing is to appease content owners. You're intertwining "notice and takedown" with "safe harbor". They are two different sides of the coin. The former gives content owners power and the latter gives service providers a defense.
- aptwebapps 13y ago
  Yeah, the "as such" was superfluous. And you're correct (if I may put words in your mouth) that the DMCA was drafted for (and by) content owners first, service providers second, and the public at large a distant third. What I thought, but I now have doubts about, was that because this takedown service that Youtube provides was in addition to compliance with regular DMCA takedown notices it would not be subject to the same rules. "You're intertwining "notice and takedown" with "safe harbor"." The point of the takedown system under the DMCA is that compliance with it guarantees (to some extent) safe harbor so I'm not sure how to separate the two.