> Videos removed or blocked due to YouTube's contractual obligations
> YouTube enters into agreements with certain music copyright owners to allow use of their sound recordings and musical compositions.
> In exchange for this, some of these music copyright owners require us to handle videos containing their sound recordings and/or musical works in ways that differ from the usual processes [aka the DMCA takedown/counter-notification process] on YouTube. Under these contracts, we may be required to remove specific videos from the site, block specific videos in certain territories, or prevent specific videos from being reinstated after a counter notification. In some instances, this may mean the Content ID appeals and/or counter notification processes will not be available. Your account will not be penalized at this time.
YouTube could waive their safe harbor provisions on a case by case basis if they cared. If the takedown is egregiously false, YouTube can just say "fuck it, sue us if you still think it's infringement."
They are protected under the safe harbor porvision of the DMCA which basically says that if someone says "That's my stuff, take it down" they have to take it down. However if no one complains, YouTube can argue that millions of videos are added everyday, they can't possibly screen them against every piece of copyrighted music/film ever made.
The problem is that "safe harbor", as I understand it, is an all-or-nothing proposition. If they ditch the DMCA safe harbor clause for this one particular video, they're opening themselves up to liability for any and every video on YouTube. That is something that Google definitely does not want to consider.
That's not how that law works. The safe harbor protection in the DMCA is for Youtube, not their customers. It protects them from legal action by copyright holders as long as they honor the process spelled out in the statute.
There's absolutly no law requiring Youtube to host whatever content you want them to. Nor should there be, really.
They're not going to get safe harbor if they've got the ability to block and monetize--that's not common carrier and they are exerting control.
The first problem is that YouTube is effectively a monopoly. The app is default installed on 2/3 of all smartphones, and the server bandwidth is subsidized by Google so that competitors really can't get traction. If we had a viable YouTube competitor, these terms would get smashed.
The second problem is that DMCA takedown is an unfair burden on the artist. After you have to file some number of the things over time, it should be considered a willful infringement by the service if it is collecting money.
Instead, Google gets to have it both ways: it gets to extract money while sitting behind the DMCA as a shield.
The relevant law here is the DMCA, which gives safe harbor to anyone hosting 3rd party content if they respond to timely takedown requests, which YouTube does.
That is what is required under the DMCA, though. YouTube must remove content immediately after receiving a notice, under penalty of losing safe-harbor privileges. In turn, the claimant must represent themselves as the copyright holder or their agent, and the content must be infringing, under penalty of liability for the accused's costs and attorney fees. The law does not make a provision for YouTube to reject bogus claims.
YouTube has its own non-DMCA process to streamline complaints and satisfy the rights holders who they want to maintain a business relationship with. If you don't have such concerns then basic safe harbor compliance is all you need.
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.
YouTube doesn't have a lot of flexibility here. The DMCA spells out specific requirements YouTube must follow when they receive a copyright claim and even with the current DMCA submission system and content id system which creators claim is too large media company friendly Google is constantly being threatened with law suits by the large media companies claiming they are in violation of safe harbor requirements for not making it even easier for them to make mass DMCA take down claims.
Content ID brings up an interesting twist on the DMCA. If a provider has "actual knowledge" of infringement, safe harbor doesn't apply. When Viacom sued Google/YouTube, they claimed that Google/YouTube had "general knowledge" of infringement. That isn't enough.
Google is paying this person for use of their work. They have knowledge and it could be argued that they obtained a license. They want to renegotiate the terms of that license. The DMCA isn't a tool to be used to force artists to license their content on terms that favor YouTube.
The actual safe harbor text (17 U.S.C. § 512(c)(1)(A)):
i. does not have actual knowledge that the material or an activity using the material on the system or network is infringing;
ii. in the absence of such actual knowledge, is not aware of facts or circumstances from which infringing activity is apparent; or
iii. upon obtaining such knowledge or awareness, acts expeditiously to remove, or disable access to, the material.
It's certainly questionable whether Content ID gives Google "actual knowledge" of infringement happening. But the rule isn't that content only has to be taken down when given a DMCA notice. Once Google has "actual knowledge", they need to take action.
And I think that's the alternative that Google would do. Videos that match the Content ID would be removed. I think the issue is that the artist doesn't want to be so punitive to fans who are caught in the middle. Google knows that artists don't want to hurt their fans and is leveraging that against them. I don't think this would become a DMCA issue at all. It's more an issue of Google having the market power to be a price/terms setter. Google seems more than willing to use Content ID to block infringement, but also has the positioning to reply to the user, "this artist has decided you, the uploader who worked hard on that video, that you're not allowed to use their music. Maybe you should hate that artist and like one of these other artists. . ." A bit of hyperbole, but you can see how an artist wouldn't want to position themselves that way.
There's some speculation on the Ars forum that if UMG aren't just making this up, their contract with Google could call into question YouTube's status as a primarily user-generated content-based site, and perhaps render them ineligible for DMCA safe harbor protection.
I just read some of DMCA Title II/OCILLA, and although it's mostly over my head, I'm not sure if I see how signing a contract with UMG allowing them to issue non-DMCA takedowns at will puts YouTube in breach of the safe harbor requirements.
YouTube’s content takedown system isn’t running on DMCA requests. It’s just a private agreement between YouTube and the labels: You don’t sue us and we give you the power to disable any song you own immediately without having to go through us.
Maybe the contract between YouTube and the labels contains punishments for labels wrongfully disabling songs they don’t own – but I very much doubt that.
> Without the DMCA's safe harbor, YouTube would be on the hook for copyright infringement even if the person posting the video affirmed super seriously that he owned the content.
I have no idea where you are getting that from. If YouTube has prima facie evidence that the content is not infringing, which is what the affirmation provides, then any lawsuit against them would be dismissed unless the plaintiff could prove that the affirmation was fraudulent. And even then all YouTube would be liable for would be taking down the content by court order, unless the plaintiff could also show that YouTube knew or should have known that the affirmation was fraudulent.
What the DMCA does is remove any requirement on the plaintiff to prove that content they claim infringes their copyright, actually infringes their copyright. The plaintiff can simply assert it and have that assertion taken as fact without proof. That's not "safe harbor"; that's an egregious misuse of the law.
That is part of the DMCA (the act, not the "DMCA notice" often shortened "DMCA"). In exchange for not being liable for the copyright infringement ("safe harbor"), the service provider (here YouTube) has to act on notices right away. The user files a counterclaim if that was wrong.
In short, it's not YouTube's (or GitHub's, etc) call, this is part of the agreement with copyright holders (the DMCA copyright law).
Don't take that as an endorsement though, I hate the system as much as you do.
> all the DMCA does is create a safe harbor. It doesn't require the site to take down the content. They're free to do their own investigation and refuse to take it down, they just run the risk of being liable if they get it wrong.
And yet, even the corporations like YouTube who can most afford to do the latter--to both investigate claims on their own, and to defend their decisions in court--don't. So this alternative is meaningless in practice.
Also, you say elsewhere that YouTube is not the business of suing people frivolously (with which I agree), so a person who wants to post content might feel ok making a contract with them but not ok about being subjected to a lawsuit by some arbitrary company.
Now take this a step further: wouldn't it be nice if YouTube, a company who far more afford to do so than the average person, were to include in their contract that, if they find that an infringement claim against a user's content is invalid, they will keep the content posted and defend it, if necessary, in court, and not require the user to do so? Or, better yet, they could give the user the option: either the user signs up for the "YouTube will defend my content if they believe it's legitimate" option, and provides the legal documentation supporting their legal ownership of copyright for the content they provide; or the user checks the box that says "if anyone complains that my content is infringing their copyright, just take it down and leave it at that, it's not worth the trouble to me".
That, or something like it, is what I would expect to happen in a sane legal regime, where the law did not impose a one-size-fits-all solution on everybody, but treated everyone fairly and reasonably and allowed people with different preferences to find different solutions that suited them. But the DMCA "chills" all of that by providing even large corporations like YouTube, who least need it, a "safe harbor" that absolves them from having to do any work at all on actually figuring out how to meet the different needs of different users.
https://www.youtube.com/watch?v=AHtHpC6nc_E
From https://support.google.com/youtube/answer/3045545?hl=en (emphasis mine)
> Videos removed or blocked due to YouTube's contractual obligations
> YouTube enters into agreements with certain music copyright owners to allow use of their sound recordings and musical compositions.
> In exchange for this, some of these music copyright owners require us to handle videos containing their sound recordings and/or musical works in ways that differ from the usual processes [aka the DMCA takedown/counter-notification process] on YouTube. Under these contracts, we may be required to remove specific videos from the site, block specific videos in certain territories, or prevent specific videos from being reinstated after a counter notification. In some instances, this may mean the Content ID appeals and/or counter notification processes will not be available. Your account will not be penalized at this time.
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