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.
Note that if 'real' DMCA notices were to be the norm, then YouTube, by law, would be unable to give back access to materials before 10 business days expired, and only after receiving a valid DMCA counter-notice[0].
Compare this to the current system where they actually have the ability to evaluate the content ID notice independently and then make adjustments. They may not always use that ability, but at least they have it. With DMCA, their hands are tied.
Specifically, 17 US code 512 (g)(2)(C) (emphasis mine):
"(C) replaces the removed material and ceases disabling access to it not less than 10, nor more than 14, business days following receipt of the counter notice, unless its designated agent first receives notice from the person who submitted the notification under subsection (c)(1)(C) that such person has filed an action seeking a court order to restrain the subscriber from engaging in infringing activity relating to the material on the service provider’s system or network."
That's two full weeks (not including weekends and holidays), where even if the DMCA is clearly bogus, they have no choice but to keep the content offline if they want to keep their safe harbour status.
So it may not be the best system, but the DMCA isn't either.
the problem is when the safe-harbour entity doesn't actually try to protect their content creators, but blindly accepts any takedown. Youtube is notoriously obedient - to the point where it can threaten content creator's livelihood (see https://www.youtube.com/watch?v=QfgoDDh4kE0 for a famous one).
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."
Under the DMCA (technically Section 512), they have to reinstate access to the content at least 10 days and at most 14 days after receiving the counter-notice, in order to keep the safe-harbor (they have to wait 10 days to give time for the rights holder to decide if they want to sue the uploader).
> any idea what Youtube don't just let people counterclaim and leave everyone else to argue it out in court?
Essentially YouTube in the pre-Google days was purposefully uploading infringing videos, and Viacom (and others) used that to sue them and under the settlement agreement forced YouTube to build the Content-ID system and have a more lax takedown system.
> 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.
My understanding is that once the content creator file a counter notice, the hosting platform is off the hook and free to reinstate the content. Any further legal fight will be directly between the claimant and the creator, not involving the host at all. IANAL, so feel free to point out any mistakes in this take.
Now assuming the above to be true, YouTube has rejected a counter notice by the creator. What other reason exists for such a decision, than the commercial relationship between the two companies? This shows that content creators have no priority at all. The host is likely a willing partner in this abuse.
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.
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.
YouTube is a huge repository of videos, it's impossible to apply all the TOS rules all the time and instantly. They often flag videos for copyright infringement "years" after being submitted, and other stuff like judging if a video might violate other parts of the TOS might require human judgment which would take even longer.
Also why does YouTube even have to "stand" with anyone one here?! they are running a website, that doesn't mean everything they do must have a political agenda. Also why would they have to be collaborating with any government? as with the incident I linked to in my previous comment shows they don't' take orders from governments and won't remove legal materials. Have it even crossed your mind that someone who wanted these videos gone may have abused YouTube's flagging system? it won't be the first time.
i'm not ready to jump to conclusions that this is government-related as implied in the article. i'd like to know more, but youtube's takedown policy is not a court of law and no rulings are ever published.
I assume you're aware that YouTube's policy explicitly says otherwise (if not, I've linked to sources elsewhere in this thread). Do you have any sources for the claim that YouTube is not following their own policy on honoring counternotices?
The real problem here is Youtube who refuses to take counter-notice seriously. It's been many years and they still can't figure out that simple bit "counternotice filed".
> However, YouTube contains lots of uploaded songs and the US government could have seized their domain for a long time already, but didn't.
Correct me if I'm wrong here, but isn't this what the DMCA safe harbor protection is for? They can't just pull their domain if they are responding in a timely manner to reasonable DMCA takedown requests.
Or am I missing a point you're making? Entirely possible. It's 4:55. I'm burnt out.
Not years. It's back up ~10 business days after you file a counternotice or the service provider loses their safe harbor. The DMCA is designed so that disputed content is not taken down permanently without an actual injunction signed by a judge.
YouTube is not responding to DMCA notices, it's given media companies direct access to take down content through their own system, and it can do this because it has no obligation to host your material for free in the first place, infringing or not.
Many of the safe-harbor laws protect a service only so long as the service is neutral. If they can make a good-faith argument that their mechanisms are used only to neutrally remove content based on good-faith assertions of copyright infringement, OK. If anyone can make a case that it's used as an editorial tool based on the opinions or ideas expressed in the removed content, well, that's the ballgame. YouTube suddenly has a negative value because losing its safe-harbor status will allow it to be pummeled into bankruptcy by lawsuits.
So maybe before you come rushing in to post your "ha-HA! Literally no one in history has ever considered that this is a corporation, or pointed this out, or had exactly this discussion, I must smugly educate them on that fact" lecture next time, you should do your homework first?
> It protects them from legal action by copyright holders as long as they honor the process spelled out in the statute.
Yes, that's what I was referring to; YouTube is now saying in some of their emails[1] about taking down a video that they are not intending to forward the counter-notification to the claimant, which they are required under 17 USC 512(g)(2)(B) to do if they want to limit their liability as a service provider.
They don't have to put the video back up or do anything when someone sends a counter notification, but that means they have full copyright liability for that video. They can now be sued directly for violating copyright for each copy they made when someone viewed the video prior to when it was taken down.
In the video in my previous comment, a copyright lawyer discusses the situation. He thinks the big music industry companies that are involved in these agreements ("YouTube enters into agreements with certain music copyright owners") must have indemnified YouTube for any legal costs they might face in exchange for the power to anonymously kill videos without question or appeal.
Youtube obeys the DMCA rules, but also has a vastly streamlined process that's being somewhat openly abused that lacks anyway to effectively fight back.
> 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.
https://www.copyright.gov/512/
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