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.
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.
Youtube does not use the DMCA nor does it comply with the DMCA.
The DMCA requires the service provider reinstate the content 14 days after the dmca is contested unless the claimant follows through on the claim by filing a lawsuit in court. Youtube does not do this.
The DMCA also explicitly states that it's protection against liability doesn't apply to service providers that do not properly implement the counter-claim reinstatement process, and as such, youtube is not covered by the dmca's shield.
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.
They are supposed to allow the user to challenge the claim, and if so, the video can be put back up after 10-14 days, if the complainant doesn't start a lawsuit, if I understand the process correctly.
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.
I had no idea the YouTube DMCA system was so skewed towards the entity claiming. This highlights at least two issues:
* Someone can claim copyright, and it goes into effect immediately, but a fraudulent claim is only forfeited after a 30-60 day grace period.
* Some can perform multiple claims at once, but you can only appeal claims one at a time.
The system YouTube uses backs up onto the DMCA. If you submit a copyright counter notice, the claimant needs to engage in legal action within a certain amount of time or YT will reinstate the video.
TIL, thanks. Although, based on https://support.google.com/youtube/answer/2797454?hl=en, it looks like the rights owner can delay the appeal process for up to 60 days, keeping the video down (since you have to file a dispute which gives them 30 days to respond, and then an appeal which gives them another 30).
I don't understand how there can be no appeal process.
My understanding (see http://www.chillingeffects.org/dmca512/faq.cgi for instance) of the DMCA is pretty straightforward. If you wish to have safe harbor, you must respond to notices and counter-notices. So if you send a counter-notice and are not sued in 2 weeks, the material has to be put back up. If Youtube fails to do so, they lose their safe harbor and have an insane amount of potential liability.
Most of the policies I'm referencing are a few years old. My reddit post I linked is from around a year ago and talks about all these policies except for the 7 day courtesy period, so I don't know exactly when that went into effect.
Anyway, if people are linking articles from 2016 I'm going to point out the current state of the policies.
>Seven whole days until your channel is closed forever. How generous. See: Vacation, holidays, natural disasters (or PG&E disasters)
It's not forever, you can always file a counternotice after it's been taken down. But yes, you should be prepared to defend your business. You want passive income, you can be prepared to check your email at least once a week.
>
>Also, why doesn't the copyright claimants also only have a maximum of 7 days to respond? We're talking about Content ID claims here, as a reminder, not DMCA.
That's a fair criticism. Presumably Youtube feels that they need a longer time to satisfy claimants and avoid DMCA filings. Remember, content ID claims do not harm the channel at all, so there's no real rush to get them removed except for getting the ad revenue out of escrow.
>So, your channel is in hiatus for more 30 days.
On my reading you can keep uploading while the counternotice process continues.
>Which was not the case in either of the situations I posted. The actions only involved YouTube.
>Jim Sterling from the article has many a horror story of spending between 6 months and 2 years fighting copyright claims and associated from corporations and CEO's. So does sidalpha and Angry Joe. Can we really claim in good faith that they're lying by pointing at Google FAQs?
What are they claiming? Have they claimed to have submitted a counternotice that was rejected? Can you link me to someone going through a timeline, with dates on what was disputed when, showing that Google FAQs are wrong? Because I've not seen that. I have seen someone posting about getting a counternotice rejected mistakenly and getting it overturned by tweeting at Youtube. And then there's the UMG exception as my first comment noted.
But most horror stories I've seen are people who get a bunch of claims and don't even seem to consider filing a counterclaim, or think it's too risky based in bad info. Or, very very rarely, people who actually get sued.
The same thing happened here. The creator issued a counter claim, and his channel is currently still up and unaffected https://www.youtube.com/c/GarethEvansYT
Youtube does allow DMCA counter claims because they legally have to. Youtube has absolutely no wiggle room with DMCA. No amount of complaining to them can ever change that, either. You have to get the laws changed.
Reading the DMCA (512(g)[1]) it seems a little more nuanced than that.
The DMCA provides wide protection to the service provider against liability for taking down stuff due to a DMCA notice (e.g. contractual SLA with customers mean nothing). However that protection disappears if the correct counter claim steps are followed, at which point the service provider becomes liable for not providing a service.
Of course with YouTube, they almost certainly have broad T&Cs that let them delete/disable your content for any reason at anytime (it’s not like creators are paying for hosting). So YouTube never had any liability to be protected from.
The net result, YouTube can do whatever they want with your content, and you have little to no recourse.
They are not required by DMCA to nuke you after 3 strikes, and they are allowed to keep the content if you file a counter-notice. Neither really works with YouTube. This IS on Google.
That's how the law works. If YouTube were to start leaving the videos up, the complainers would just start sending proper DMCA takedown notices, and YouTube would be forced to take it down promptly.
Early on YouTube didn't even treat disputes as on the same track as DMCA - if your appeal got rejected they'd just side with the claimant and you had no further recourse. It's possible that this happened that long ago.
Of course, even being able to DMCA counter-notice isn't really a help, because you're just telling the claimnant to sue. You even have to dox yourself. What people want is to just not have to deal with copyright in these specific cases where there is no element of copyright being infringed.
I'd like to hear more of this story and what channels of communication were used exactly. DMCA is pretty clear on how this case should be handled and even if it's a stupid procedure that takes you down for a few days, I don't believe YT can legally refuse to act on the counter-claim. If they do and you relied on the income from those videos, you could sue them.
So why did it take months? How were they blocked in the first place? (DMCA?) Was there an official counter-claim? Refused? Why?
The DMCA states that YouTube must respond immediately to claims. They have no option but to take action. This puts them in a precarious situation. They can either a) initially assume all claims are valid and handle arbitration while the video is unavailable or b) attempt to become experts at evaluating claims from the onset and open themselves up for liability. Given that the law is NEVER black and white, it's no surprise they chose option 1.
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.
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