- A false DMCA takedown notice can result in a lawsuit including damages and legal fees.
- Most YouTube takedowns have nothing to do with the DMCA as YouTube has their own proprietary system. This system is extrajudicial. This system has the type of problems you're raising and little recourse.
I actually think the DMCA takedown process itself is problematic, but YouTube's own private one is a whole extra level of abusive.
People need to remember that laws reforming the DMCA would do nothing to fix YouTube's system, unless they outright banned YouTube/Google from operating an extrajudicial system.
But as mentioned elsewhere in this discussion there are legal repercussions for filing an incorrect DMCA takedown request. The problem is Youtube have their own version of the law and just automatically believe the claimant.
>On the other hand, laws exist to prevent people from submitting takedown notices in bad faith.
Realistically these laws are hard if not impossible to enforce. There's absolutely nothing stopping someone from filing a fake DMCA under a fake name and getting absolutely no retribution for their actions. Ask any up and coming YouTube content creator and they'll probably tell you they've been hit with fake DMCAs in the past, which immediately results in the user's video getting pulled.
After that point, the damage is done. Even if it comes back later, especially if the content is time sensitive, the troll won.
Considering that you have to prove actual bad faith (rather than just negligence) and have to have someone's actual identity to initiate a DMCA countersuit, the protection offered in the internet age is laughable.
Well, the law does not allow YouTube to "punish" false DMCA takedowns, so in those cases there's not much they can do. It's up to the person who had their content taken down to file a lawsuit if they want the person filing the takedown notice to face punishment (which is one of the broken aspects of the DMCA law).
YouTube does punishes false claims through their Content ID system, though, as that's a system they control. From their website, "Content owners who repeatedly make erroneous claims can have their Content ID access disabled and their partnership with YouTube terminated."
Instead what happens is media-companies strong-arm content-hosting companies (YouTube, etc) to let them file informal takedown notices that don't open themselves up to perjury with much weaker protections for innocent people caught up in the collateral damage - what does YouTube etc get from it? I suspect it's something they agreed to do to sweeten their deal to keep Vevo and other brands' content mirrored on YouTube.
>DMCA is a legal statute, which is where copyright holders expressly file a notice to YouTube that they're hosting infringing content, and getting one as an uploader will lead to an account strike.
I am well aware of the differences between the two, and this is exactly what I was referring to. There absolutely have been instances of bogus DMCA takedown notices negatively impacting users and being a nightmare for them to resolve.
Here and elsewhere in this thread, you're exaggerating the power of the DMCA over YouTube. The only consequence to YouTube if they fail to follow along with the DMCA takedown notice/counter-notice procedure is that they lose safe harbor protection against being held liable for their users copyright infringement. In a case where YouTube is overzealously removing content that is not actually infringing, they really aren't at much risk of that somehow leading to them being sued for infringement. And you can bet that their Terms of Service adequately indemnify them against any torts their users might come after them for related to such behavior.
IANAL, but DMCA takedowns do not have "no repercussions" for false claims. If the DMCA takedown was actually baseless, they would be opening themselves up to damage liabilities, as specified under 17 U.S. Code § 512 under section f[1]. This is different than YouTube copyright claims, which as far as I'm aware don't actually have any repercussions for false claims unless YouTube decides to take action[2], since copyright claims on YouTube are not DMCA takedown requests.
> If I understand correctly, then anyone with certain authority can file a DMCA takedown notice, which results in the removal of protected content. Anyone who posted the content and wants to challenge that notice can also do so, resulting in the restoration of the content, but not until a few days later.
Hopefully resulting in the restoration of the content. There's no guaranty that a service provider will restore the content, and the bar to getting a counter filed is relatively high (to an individual with no legal resources, etc).
The problem is that service providers are liable to get bent over if they don't respond to valid DMCA notices, so they're likely to overreact when they get invalid ones as well. If they remove something for improper reasons, though, there's no law backing the user up.
The other thing about YouTube takedowns is that they're often technically not DMCA takedowns anymore. Technically, false DMCA claims open the claimer to penalties. But, if the Content ID match (even on a false positive) or one of YouTube's contractual obligations triggers, the content is flagged without going through the DMCA process.
(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.
YouTube's take-down system has nothing to do with the DMCA. While you can file a DMCA against YouTube, the biggest problems have been a result of YT's own take-down/copyright/strike system that is of their own creation (and has no legal punishment for abuse, since it isn't built on the legal system at all).
DMCA abuse does occur. But YouTube is the exception, rather than the rule, since they're largely not DMCA.
> The DMCA takedown process assumes that nobody would make false declarations under the assumption that there would be consequences to doing so.
That is dubious, given the DMCA does not define any consequences for false declarations. It does mention penalty of perjury but that's not even for accuracy of claim, it's only for the complaining party being "authorized to act on behalf of the owner of an exclusive right that is allegedly infringed."
DMCA abuse took off almost immediately, here's a 2005 study:
> Examining the characteristics of the targets of the notices—the alleged infringers—we found that 41% of all Google notice targets can be classed as competitors of the complainants. Fig. ES-4. This is particularly significant for Google 512(d) complaints regarding links in the index, where 55% of all notices relate to competitors. A significant percentage of the 512(c) and (d) notices sent to Google 21%—target hobbyists, critics, and educational users.
I believe youtube's takedown process isn't strictly a DMCA feature. From the submission it looks like it's not even a takedown, it's just a thing where google is letting someone put ads on other people's videos if they claim copyright and possibly bully them, but it doesn't look like they're serving DMCA notices.
> Which is confusing, because I thought the DMCA only applied to copyright (it's the Digital Millennium _Copyright_ Act, after all) but perhaps I'm wrong and it includes provisions about trademark as well?
As far as I know, a legally enforceable "DMCA takedown" can only be about copyright infringement. However, YouTube is under no obligation to not honor takedowns that aren't legally binding.
the dmca takedown services are awful. They just do exact text match on titles of videos and submit dmca requests on behalf of the content owner. If you embed a video widget from the content owners official YouTube page on your blog for example and quote the title, often these services will still send a dmca request.
Even if you respond and say the complaint is invalid some services will still ban you for receiving too many requests.
Source: built a crappy content farm with video embeds. Received avalanche of requests.
It’s hard to cry about my case in particular since it was just a dumb content farm. But ops post is another example of this terrible software and legal process having wider implications.
I also am not a lawyer but from what I understand the situation is actually more severe than that.
I couldn't find the reference offhand but I've read that YouTube has no ability to adjudicate the validity of a DMCA takedown request at all. They must responed as proscribed by the DMCA.
Which makes sense because once the DMCA is involved it's ultimately a legal dispute between the person that uploaded the video and the person that claims to own the copyright. And that kind of dispute is something only the courts can decide.
Hardly, dmca is straight forward law, take down notice and counter notice has no three strikes. There are penalties for incorrect claims to deter such claims
This is Google's poorly implemented system to satisfy big studio creators to publish on YouTube.
- Most YouTube takedowns have nothing to do with the DMCA as YouTube has their own proprietary system. This system is extrajudicial. This system has the type of problems you're raising and little recourse.
I actually think the DMCA takedown process itself is problematic, but YouTube's own private one is a whole extra level of abusive.
People need to remember that laws reforming the DMCA would do nothing to fix YouTube's system, unless they outright banned YouTube/Google from operating an extrajudicial system.
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