The Problem with YouTube

By Shamus
on May 25, 2011
Filed under:
Nerd Culture

splash_gavel.jpg

You might remember that earlier in the week we talked about SF Debris and the way Chuck Sonnenberg was driven off of YouTube because his videos were being flagged as copyright violations. Some people pointed out that you can dispute the YouTube claims. While I can’t speak for Sonnenberg or how things went down for him, I will say that this might be more of a pain in the ass than it’s worth.

When something gets flagged on YouTube, you get a notice and the content is removed. (It’s not actually deleted.) You can then fill out a form. Two weeks later, your content might be restored. But even when that happens, there’s nothing stopping it from being re-flagged and getting taken down again. Here is the story of one person who experimented with the process for educational purposes. Perhaps it was simply too much work to try and rescue all of his three-year SF Debris archive. Maybe it was infuriating to upload a video, have it live for four days, then down for two weeks, then back up again. I imagine that’s a real discussion-killer, not to mention a great way to lose viewers to confusion and frustration.

Here is one of my favorites from the SF Debris archives:


(Link)

Man, if someone was doing long-form reviews of my forty year old material, my first response would not be to silence them, but to encourage them to do as much as possible. Watch the above episode and tell me it doesn’t make you want to check out Star Trek: Original Flavor. This is more effective than any advertising CBS could buy, and all they need to do is stand aside and allow it to happen. (And no, you’re not obligated to chase down copyright ‘violations’ or risk losing them. That’s trademarks.)

In any case, I don’t blame Sonnenberg for leaving YouTube. It’s an awful situation.

As was explained to me in an earlier post:

The way the law works is that some copyright holder can normally sue YouTube for every single copyright infraction found on their hundreds of millions of videos. Now, this alone is outrageous. It’s like suing a car manufacturer for all the robberies in which their vehicles were used as getaway vehicles. YouTube is a tool. A tool which can be misused. The excuse given by copyright holders is, “Well, we can’t sue all these little people, so… we’re suing you. Doing it properly is too hard, so to hell with your world-changing technology.” See also: Player pianos, rock and roll, newspapers, radio, television, movies, and VHS players are ruining our once-great utopia and must be stopped.

But! The DMCA creates a provision to protect YouTube from lawsuits. They are immune to lawsuits from (say) Viacom, as long as they immediately and without hesitation remove anything that Viacom says infringes on their copyrights. So, it effectively outlaws careful review and arbitration. The effect is that Viacom can spam everyone and everything that might possibly infringe on their copyrights. Those videos are removed almost instantly, and then the creators of that content can enter a long and annoying process to have their unjustly removed material restored.

In criminal cases you’re innocent until proven guilty. You can’t be arrested without evidence and you can’t be searched without probable cause. Even when fighting things like rape, murder, and theft, the police are (theoretically) bound by firm rules to keep their power in check, because injustice is worse than no justice at all. But here we’re dealing with simple civil cases. They are combating against situations which may infringe on copyright in a way that could be financially damaging. And in the face of this extremely mild (compared to criminal justice) threat, all the rules go out the window. Justice is, “Throw a bunch of random people in jail. The ones that can fight their way back out are probably innocent.”

There’s a saying: “It is better to let nine guilty men free than to convict one innocent man.” That thinking is now inverted, and it’s better to punish nine innocent parties than miss a single copyright infraction.

So, yay. Nice law there. I’m sure The People were really demanding that.

ANYWAY.

The thing is, CBS, Viacom, BBC, and some of these other bullies don’t actually have to spam these takedown notices. There’s another option available to more reasonable people, and that’s to simply assert their ownership of the material and make money off of it. Ads begin running on the video, and they get [some of?] the money. While I’ve never been hit with a wrongful takedown, I have been hit with this latter option a few times. We had it happen to Spoiler Warning S5E14: A Night on the Town, and here is how that worked:

YouTube Third-part content dispute.

YouTube starts off by notifying you that their content-sniffer has detected that you have used “Third Party Content”. It tells you what kind (audio or video) and who the owner is, but that’s it. It doesn’t name the original work, give a timestamp for where it was detected, or even provide a link to the alleged owner. There’s no contact info and you can’t ask for clarification. In the past, I’ve had people assert “ownership” over segments of freely-available game trailers. (They did not own, produce, market, or publish the game, the trailer, or the footage. It was just some asshat who put up a trailer and said, “I own this”.)

YouTube Third-part content dispute.

The thing that annoys me here is that this third-party company can come in, right away, and put and ad over our video and start making money. See, when I did Drawn to Knowledge, the video would have to sit there for days before YouTube would give me the option to monetize it. Once I got the option, I had to apply, and wait several days more. Then at last, over a week after the video had run its course and gone dormant, they would start running ads. I found it impossible to make anything (not even pocket change) on content I had produced myself, but here someone else can swoop in and instantly start making cash on my content? That is really frustrating.

YouTube Third-part content dispute.

Now, this video contains three pieces of music. The first is the snippet of the Fallout: New Vegas menu music, which plays during the intro. The other two are used under the Creative Commons and are by Kevin MacLeod. Which piece of music is under dispute? If it’s the intro, we need to claim fair use. If it’s the other two, we can assert that we have permission. Or maybe it’s a complete mis-identification like the game trailers problem I encountered before.

There is no way to address this properly because YouTube doesn’t give you enough information to answer honestly.

YouTube Third-part content dispute.

Here is the final page of the dispute. You “sign” it by typing your name, and then copy & paste the Good Faith Statement into the Good Faith Statement Box. That is bureaucratic perversion worthy of GLADos herself.

I went over this with Josh and he found some information on Kevin MacLeod’s site detailing how he was setting things up with a third-party to help him make money from his music. The company was AudioMicro1, the same group that filed this claim against our video. On Kevin’s site, he said you were free to opt-out if you don’t want to share with him. (By opt-out I assume he means file this counter-claim.) So YouTube didn’t give us any of the information we needed. We worked it out on our own.

Confused? MacLeod signed up with AudioMicro1, who offered to represent him on YouTube and help him make money with his music. MacLeod then told content producers (like us) that AudioMiro1 might flag our videos, and that if we wanted Kevin to make money that we could simply allow the claim to stand.

YouTube (using its magic content-detection rays, which NOBODY else can figure out) noted the presence of Sock Hop, which were somehow registered to AudioMicro1. So YouTube told us we were infringing without giving us the crucial info. It began running ads over the episode in question. That ad money will go to AudioMicro1. (And from there, we hope, it would go to MacLeod.)

Need to draw a friggin’ flowchart, here.

In the end we didn’t file the claim. I’m happy for MacLeod to make some money at this. His music has been a benefit to the show, and we are more than happy to see him profit from his skill and labor. But this entire system is a horrible, horrible mess. We nearly mistook this for some copyright troll and disputed the claim.

  1. Too vague: The entire system is too vague. You’re obliged to “sign your name” to documents without being given any way to know what you’re being accused of misusing or who is accusing you. Sure, you can Google the name given, but there’s no definite link between your accuser and the Google search results. I understand the DMCA imposes some enforcement duties onto YouTube, but this is completely unacceptable. More transparency is needed. I understand these third-party guys can make YouTube act as their muscle, but they shouldn’t be able to hide from the accused.
  2. No penalty for wrongful claims: CBS was able to harass SF Debris right off of YouTube. They filed over 100 claims against his show, and all of those claims were false. Even imposing a $1 penalty would go a long way to stopping this senseless claim-spam.
  3. It’s easier for THIRD party content owners to make money than FIRST party content owners: The system to monetize your videos is slow, cumbersome, and unresponsive. The system for third-party owners appears to be completely automated and turnkey.
  4. All or nothing: If I make a twenty-minute epic of breathtaking depth and insight, and use a nine-second music clip for the opening, and if the owner of the original song comes after me, they get everything. A split would make much more sense. If I was a record company, I’d LOVE to simply allow everyone to use my catalog for their YouTube projects, and just take a little cut from all of them. That would be “free money” from my standpoint. Nobody is going to want to use my music if doing so means I get everything. I’d rather skim a few percent from millions of people than haggle over a 60/40 split with one guy.

I understand that YouTube has to do some of this stuff in order to comply with the DMCA, but I don’t think the law requires that the system be this unfair, arbitrary, vague, and heavy-handed. It’s been this way for a long time, and I don’t see them moving to improve it.

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From the Archives:

  1. Primogenitor says:

    So you can put your content under one account as private, then put it up again as a second account as public, claim your infringing your own copyright, and get ads (and money) quicker?

    • Falcon says:

      It’s sad that I thought of this too, as this seems like the quickest way to make money off your own work!. Which if that really would work means that this entire system is a sham and a farce of epic proportions.

      • Zombie Pete says:

        Somebody PLEASE try to do this! I’d love to know if it works!

        • Keeshhound says:

          Actually, don’t. What you’re describing could easily be labeled fraud, and no one wants to have to defend themselves from that charge, even if they’re innocent.

          • Daemian Lucifer says:

            Its fraud only if they catch you.

            • Thomas says:

              Tell them you have multiple personality disorder and genuinely believe you’re infringing your own copyright?

              EDIT: If we want to be serious though, they destroy your channel if you’re repeatedly found guilty of infringement

          • Eugene says:

            You could easily argue that it isn’t fraud – you’re claiming that you own the work in question and you’re filing a notice to “claim” it. Well, of COURSE you want to claim it, it’s yours! What’s the problem with that? And your intent was to make money through ads via Youtube, meanwhile the result of this action is to now make money through ads via Youtube. I see now breaking of laws there. Just lots and lots of bending ;D

    • Lance says:

      I was just about to suggest this. Big, overly complex systems deserve to be gamed.

  2. koriantor says:

    Sounds like Cave Johnson might be working for youtube.

  3. TehShrike says:

    You’re not the first opinionated blogger to talk on the subject: http://www.codinghorror.com/blog/2010/09/youtube-vs-fair-use.html

    And I doubt you’ll be the last. Handing over the keys to copyright trolls was the beginning of the decline of YouTube.

    If they don’t man up and fight back, all serious content producers will be forced to start using other avenues.

    • Winter says:

      Handing over the keys to copyright trolls was the beginning of the decline of YouTube.

      That’s really the bottom line, here.

      Hey, old people! You wanna know why we’re gonna grind you up and serve you as Soylent Green in about ten years here? Go read that post again and pay attention to the relative ages of everyone involved. Enjoy!

      (Hey, don’t take it so hard though. I’m only kidding.)

      (That is to say: there’s no “we”, i’m probably going to be right along side you. But i’ll push you in before me.)

  4. Picador says:

    Shamus:

    You’re barking up the wrong tree by villifying YouTube here. Given the state of US and international copyright law, including the DMCA and its various foreign cousins (some of which are even worse), I’m actually amazed that YouTube has done as much as they have to try to make things fair and workable for its users. Seriously, try to find a free content-hosting site that does a better job of being fair to users and isn’t currently being sued into oblivion by the content industry.

    Yes, copyright law is a mess. It’s overwhelmingly weighted in favour of the interests of large media corporations in about a dozen distinct ways. A lot of people have been shouting about this for a long time. Donate to EFF, to Public Knowledge, to Creative Commons, to the Software Freedom Law Center, to the Free Software Foundation, to the Wikimedia Foundation. Support artists and companies that support free culture and collaborative creation. Write a letter to your congressional rep telling them that you won’t vote for anyone who keeps caving in to Hollywood lobbyists. Did your local rep vote for the DMCA? ACTA? The PROTECT IP Act? Did you vote for this person?

    Blaming YouTube is really the wrong approach here. They’re responding to incentives, the way corporations do. And they’re actually doing a surprisingly good job of resisting the worst incentives that have been set for them by the legislation that governs them.

    • Shamus says:

      Like I said at the end, their hands are tied in implementing the system, but the law doesn’t say that they have to do it with such a lack of transparency, or any of the other YouTube-specific problems I mentioned.

    • Falcon says:

      Here is the problem (party neutral, I hate them all equally here) with your otherwise reasonable idea.

      Critical mass

      We don’t have it. When it comes to elected officials people are lazy. While I voted on issues important to me (and this was one of them) regardless of party li(n)es I am in the minority of a minority here. To me issues are less important than party affiliation, I agree with you , I’ll vote for you. Republican, Democrat, or (mostly) otherwise.

      Your average person in America, they don’t care. They vote for the little D or R symbol next to the name. Doing the research to properly vote takes hours, even in the days of the internet. people would rather take what the media tells them and vote on that.

      Guess what, the media won’t tell them about this. They like the laws to be restrictive, to control content. So the average person remains unaware of the dangers, until it’s too late.

      So I say hammer YouTube, et al. The average person WILL notice if their favorite videos no longer show up on the internet. Maybe then we won’t be the screaming minority, but will finally have the force of votes to enact the change we need.

      I like your idea, and agree, but that ain’t the reality we live in now.

      • Alexander The 1st says:

        Ah, Critical Mass. The main purpose we even have democracy in the first place.

        I think the larger issue at hand is single-issue votes…don’t tend to do well.

        For example, in Canada, we had quite a few places that voted Conservative because Harper supports removing the Long gun registry and other such things. Something like the internet isn’t going to be a pushing issue – partially because we had people split the vote, but…yeah. The issue goes two ways – some people vote based on the internet view without looking at the other issues as well.

      • Abnaxis says:

        There’s an idea: I wonder if someone on Anon orchestrated an attack that spammed YouTube with enough false DMCA claims that it brought a significant portion of the videos down, if people would notice? I realise this I’m basically advocating a malicious attack, but it’s really not any different than what CBS or Viacom is doing…

      • Tizzy says:

        Falcon wrote: “Your average person in America, they don’t care. They vote for the little D or R symbol next to the name. “

        Well, actually, your average American does not vote at all, that may be part of the problem.

    • Chargone says:

      “including the DMCA and its various foreign cousins (some of which are even worse)”

      and most of which only exist due to a combination of preasure by the US government at the behest of various old media corporations and outright bribery by those same entities.

      and if the news i’ve been keeping up with is any indication, it doesn’t matter Who you vote for in the USA… you’re lucky if ten congressional representatives will ever vote against this crap on any given issue, and forget senators. democrat or republican, the various entertainment industry types fund whoever votes their way and parrots their issues (and happily fund campaigns on both sides of the line)

      US politics really have two sides. no, it’s not democrats and republicans. it’s your elite plutocrats and everyone else.

  5. drlemaster says:

    I have to wonder how much of this is caused by corporate lawyers justifying their existence/looking for something to do? I am old enough to remember early-to-mid nineties TSR sending cease-and-desist letters to every D&D fan site they could find. It appears the lawyers had convinced management (and possibly themselves) that they had to “defend their copyright”. As you noted, this is the case with trademarks, but not copyrights.

    In general we shouldn’t be surprised that laws written and interpreted by lawyers are mainly of benefit to lawyers (with corporations employing the lawyers coming in a close second). Of course, I am not one to talk, having once worked for an IT department which had the informal policy of doing things half-assed so we could be called back again to fix them later.

    • Chargone says:

      “And no, you’re not obligated to chase down copyright ‘violations’ or risk losing them. That’s trademarks.”

      actually, if what i’ve been reading over at techdirt is any indication, you don’t even need to defend trademarks, technically. or at least you shouldn’t. there’s some case law that makes it somewhat less clear than it should be. trademarks, unlike copyright and patents, aren’t about monopoly rights, they’re (supposed to be) a consumer protection measure.

      basically, the broken part about trademarks is that it’s the person they’re registered to who has to enforce them, rather than the apropriate regulatory agency. that and it’s been conflated with copyright and patents.

      basically, patents and copyrights are supposed to grant a monopoly to a creator for a limited time to encourage people to actually make stuff in the first place.

      trademarks are supposed to prevent one person from making something that Appears to be the same as another person’s thing when it is, in fact, in some way inferior, or from leading the consumer to believe that a different person is the one who has wronged them, and so on. basically the point is so that if something goes wrong with a product you can correctly identify who is responsible for it.

      of course, with the completely moronic concept of Interlectual Property floating around (hint, it doesn’t exist. 2/3rds of what is labled as such is simply distribution monopolies and the other third is a consumer protection measure which doesn’t actually grant anyone ownership of Anything.) this all gets rather tangled. even lawyers who specialize in such law can’t keep it straight.

  6. Johan says:

    “Well, we can’t sue all these little people, so… we’re suing you. Doing it properly is too hard, so to hell with your world-changing technology.”

    I think the real problem is (now I’ve never uploaded on Youtube, is this true?) that a Youtube account doesn’t require ANY information that definitively ties the account to a real person (and would anyone USE Youtube if it required a social security number?). So often going to the person isn’t “hard,” it’s impossible. If Abcd1234 wants to put up entire episodes of Star Trek, how are they going to drag him into court? Shoot him an e-mail to the address he signed up with?

    It’s terrible, I know, bringing the suit to the tools rather than the people, but it’s better than simply being unable to enforce copyright law. Now again, I don’t have an account with Youtube, so I may be entirely wrong, but I don’t think they require that you give them any information that definitely marks you for the law to see “who was uploading all these videos?” You use your real name when hanging around the Internet, but most don’t in my experience.

    And of course none of this addresses the travesty of flagging materials that by any sense of logic wouldn’t be flagged. If that one semester of Law School I took taught me anything, it’s that law is often infuriating.

    • Falcon says:

      Defaulting to the side of media corporations interests, over the iterests of the common man is a terrible policy. It may be the usual policy now, but that doesn’t mean it’s right.

      • Johan says:

        It may also be the only policy that allows for the enforcement of copyright law. Once again, I don’t know the particulars of Youtube so I can’t speak with any kind of knowledge, but that’s just what springs to mind.

        • BeamSplashX says:

          Then maybe it’s time for copyright law to get a serious do-over. I did a research paper on it in highschool, though my paper consisted almost entirely of the book “Free Culture” by Lawrence Lessig (the rest were personal conclusions). Give it a read.

          Japanese companies didn’t go under when fans started making money off of comics/games/porn/whatever based on their work. Is further proof needed?

        • zob says:

          A video uploaders ip and said video’s uploading time is definitely logged at the Youtube servers. This ip adress can be traced to a service provider. This service provider (if you have legal backing) can provide you owner of said ip address at that given time.

          As a backup youtube can also provide you with the email address of the uploader and same tracing can be used with that email address too.

          It may seem such a hassle but it is definitely doable. So no it is not the only policy.

          • Johan says:

            IPs can be hidden (or variable, if I upload from an Internet Cafe in foreign lands, is it their fault?). And IPs are messy to begin with, I’ve been banned from a forum because an IP ban was put on someone else.

            E-mail addresses are a dime a dozen, and it’s incredibly easy to make one you will never ever use again and which can’t be traced back to you because you set it up somewhere else and lied on whatever information you gave them. Real name, age, date of birth, phone number, where you are, all these things can just be filled out falsely.

            • zob says:

              I am a CS major and I am telling you it’s still traceable. If law can find a russian hacker who cracked some bank accounts it can also find some video uploader. Unless somebody in the chain deliberately blocking access to the law.

              And even if that’s the case it should still be copyright owners responsibility to prove there really is an infringement. And only after that he could ban access to that content. He loses money I lose my free speech.

              • Johan says:

                Really? Now I’m curious, how do you trace me if I make an e-mail account from a cafe with free wifi, then upload my not insubstantial collection movies to a website?

                • zob says:

                  Since we are chasing a briliant criminal mastermind who is driven to upload a video to youtube but wants to be sneaky lets go bananas against bananas.

                  Your mac adress would be registered to cafes router that mac adress could be traced back to hardware that hardware could be traced back to a vendor that vendor can give you who bought that specific wifi adapter/netbook. Let’s say you spoofed said MAC address.

                  Youtube still has your upload time that means we have a timetable we can cross check with cafe crew or camera recordings, credit card receits. But lets say they don’t exist either.

                  Youtube has your email, we contact to this email provider to give access details. When and where did this email accessed before. Let’s say you constantly change your emails and make new accounts to circumvent this.

                  Ok I give up let’s ban youtube. But wait a minute are we 100% sure that banning youtube will seriously stop a person this resourceful? Are we destroying an important legal tenet (innocent until proven guilty) because we are afraid of some criminal mastermind which we have no way of apprehending or stopping anyway?

                  Don’t get me wrong, I am not defending a “we can’t stop crime so let it roam free” idea. Point is you can’t push a fellow who is walking to close to the road with an excuse like “he may be thinking of jaywalking there are some jaywalkers”

                  • Chargone says:

                    of course, most of this process would be compleatly illegal in many countries as you are not, in fact, under criminal investigation. no warrents, etc. civil suits.

                    it’d also be crazy expensive. massively more so than the cost of enacting measures needed to require all these methods of tracking the person down anwyay.

      • Daimbert says:

        I’m not sure this defaults to the interests of corporations, though. They don’t really need to use the automatic mechanism because they could usually get a court order on specific violations quickly enough. All that this does is help them avoid having to deal with the massive number of violations they’d have to address, which is probably a good thing in general. This better serves the common man who HAS a copyright to protect since it lets them protect their copyright without necessarily needing to get lawyers involved, and the harder it is to reply the more likely it is that they won’t get a response and so won’t have to get a court order.

        • Chargone says:

          too bad that to do anything useful with copyright that would not be just as doable and profitable without, you typically have to sign all or part of that right over to one of those big corporations, huh?

    • Chargone says:

      i can tell you no one from New Zealand would use youtube if it needed a social security number… we don’t have them, or an equivilant.
      actually, attempting to create a system that emulated social security numbers here is illegal. every entity that tracks anything needs to have it’s own system, and if your number matches between two systems for any reason other than pure fluke, at least one is (and probably both are) in vilation of the law.
      for this purpose even government departments count as seperate entities.

  7. Soylent Dave says:

    I don’t see why* they can’t flag videos with a ‘potential copyright violation’ banner, and give the video uploader 48 hours (even 24 would be better than the ‘none’ that it is now) to file a DMCA counter claim and keep the video up on YouTube.

    If you don’t file a counter-claim (or don’t file one in time), then your video gets taken down – which pleases the big companies.
    But on the other hand, your video isn’t taken down instantly, so you are still being treated as ‘innocent until proven guilty’ (or ‘potentially innocent pending appeal’, anyway…).

    And if the company files a lawsuit following your counter-claim – stick a different notification on the video (with a link to the complainant).

    (and of course YouTube / Google need to make the appeals & complaints process a hell of a lot more transparent, because it’s a place where ordinary people and legalese meet (so end users need to be able to understand what the hell is happening); Google are meant to be better than this.)

    *I mean ‘I don’t see why’ in an ideal world. I know why they don’t do it for the shitty DMCA-mandated internet we live in.

    • Bubble181 says:

      “Google are meant to be better than this”? No offense, but the days Google was the lovable underdog in it for the man instead of the money are long, long gone.
      If Google can find a way to make you watch one more commercial or make one more dime off of you, they will.
      Since Google – throughout their entire portfolio – has chosen to always leave their things “free” for the user, and charge the companies using it for advertising, demographic research, etc etc, they’re also obligated to dance to the tune these companies set out. All of Google wouldn’t last a day without advertising from Big Money; much like politics, they rely on Big Bucks to survive and, therefore, can never truly oppose them.

      You want a site that can take the side of the common man and say “screw you’ to corporations? Find a site that is paid for by the common man, and NOT those self same corporations?

      • Soylent Dave says:

        Yeah, I know they’re a corporation like any other.

        But they used to be user friendly, at least.

        I expect them to suck the corporate cock now and again (or be the corporate cock), but I don’t expect them to obfuscate it all so much. They used to be pretty good about transparency and clarity.

        • Chargone says:

          they’re actually still one of the few entites that Will actually fight for the consumer’s interests rather than just roll over and do what they’re told… when they think they can actually win.

  8. Ben says:

    I’m going to give a qualified defense of the DMCA safe harbor provision because it is really about the best solution to the problem of hosting user content.

    The problems with the safe harbor provisions is that content hosting companies have become so skittish about losing their DMCA safe harbor protection they are going above and beyond the DMCA with their compliance. Strictly speaking once a counter claim is filed the content must be restored within 10 to 14 days unless a lawsuit is filed against the user. Additionally filing a knowingly false DMCA takedown notice carries its own legal penalties and could possibly make you liable under anti-SLAPP statutes.

    Don’t get me wrong the safe harbor provisions have some problems but they are a necessary element of how the internet functions today.

    There might be an interesting legal argument which would be going after Youtube’s DMCA protection because they are being too generous to rights holders. Since DMCA safe harbor is central to youtube’s business a suit like that if it got anywhere would make them sit up and take notice.

    EDIT: I got a couple details on the DMCA wrong in this comment initially they have since been corrected.

    • Falcon says:

      The idea of penalties for knowingly false DMCA claims is nice, in theory, but I haven’t heard of any actually being enforced. ‘Knowingly’ is so vague as to be rendered useless in a legal sense.

      Have there really been any cases where penalties were handed down for false claims?

      • Ben says:

        If it does happen it is rare but again thats not necessarily a problem with the law but how it is implemented by the service providers.

        In theory you could probably catch someone on ‘knowingly’ if they should have known the work was non-infringing. For example in the case of SF Debris its a pretty solid case of fair use and you could claim that since CBS should have known that it was fair use filing the takedown notice was a knowingly false statement. Perhaps the biggest issue in going after CBS is that the DMCA awards damages and if Mr. Sonnenberg wasn’t making any money off of SF Debris then damages would be hard to prove.

        It wouldn’t be an easy lawsuit but I think the case is there if someone wanted to try and make it.

        The bigger issue though is the DMCA has to exist and a takedown procedure has to exist for the Internet to function, while there is some work that could be done to equalize the burden (content is restored immediately on counter claim for example) on both parties the general framework of how the DMCA exists now is something that we will have to work within going forward. Unless some massive massive changes in out IP laws.

        • Soylent Dave says:

          there is some work that could be done to equalize the burden

          I think you hit the nail on the head here.

          Currently the accused little guy takes all the heat, loses access to his audience (for a fortnight) and has to make much more effort to restore his material than the alleged copyright holder does to have it taken down.

          There definitely needs to be some protection for copyright holders (I do think that people who create (or fund) things deserve to make money from those things), but currently DMCA enforcement is weighted beyond what is fair in favour of the people who claim copyright (especially because big companies tend to claim copyright over everything, ever).

          Immediate restoration on counter-claim would definitely be a step in the right direction, as would delayed removal in the first place (give people a short amount of time to counter-claim before removing the offending item)

        • Chargone says:

          ‘hard to prove’ has never stopped american courts awarding damages in the hundreds of thousands of dollars Anyway, has it now?

  9. Raygereio says:

    Given how wide open this system is to abuse; I’m somewhat curious as to how many of these ownership claims are genuine. I’m not even talking about “can you say you own this review of your product”-stuff; just was the actual real copyright owner talking, or just some asshat that wanted a quick buck from addrevenue?

    It’s like suing a car manufacturer for all the robberies in which their vehicles were used as getaway vehicles.

    Sometimes they go so far as to sue the owners of cars that were in no way involved in the robbery, but just happened to be the same type of car.
    In the Netherlands when you buy for instance CD-R’s, or even just an empty VCR tape, you pay a tax over it which is supposed to go to the copyright owners (not that it does, but that’s another discussion).
    This already assumes you’re going to do something illegal with that CD-R. Words cannot express my annoyance when I found out about that years ago. Officially this tax is called (roughly translated) “compensation for private copying”, this even though another laws says it’s perfectly legal to copy something you own for private use. Make sense out of that.

    All laws like this are the same crap like DRM. All it does is hurt/annoy the people that have nothing to do with whatever is going on. Meanwhile the people that were supposed to be targetted by these laws go on their merry way. It defies any logic.

    • Sleeping Dragon says:

      Same thing with the extra tax on recordables here, might be an overall European thing.

      As for asshats… Around here we have one that is part of CISAC. In theory these guys are there to make it easy for you to get the right to use or broadcast copyrighted material. Say you want to show some anime during a convention (I’ve been working with anime conventions a few years back so I’ll be using those as an example). You don’t have to look up who exactly has the rights for some “Neko no Mecha-kun” obscure title. Instead you go to these guys, provide them with what you want to use and in what circumstances and they assign you a fee for that and give you a paper that you’re good. Then they should contact their sister company in that country and through them get the money to the actual copyright holder skimming a little bit from the top for themselves.

      Now here’s where the fun part starts. In my experience, and I imagine that’s how most of these member companies work, the moment you mention that you want to show some “Japanese animation” the light “obscure and nobody is ever going to ask about it” turn on in their heads. So they’ll hit you with a silly fee that nobody but them is ever going to see or hear about. Also, they get a small percentage of money from all the earning of all their member artist in our country. And they are largely tax exempt because they’re (in theory) non-profit. They also at one point decided that they stand in defence of EVERY single artist out there and demanded that they get paid their fee even for works released under, for example, variations of Creative Commons that allow for free commercial use. They basically argued that even if the usage is free the company is responsible for maintaining a “healthy market” as well as “monitoring the copyright status of these works” and should be paid for this. Yes, if someone released their work for free they still wanted to be paid for it. They eventually backed down claiming it was an overzealous employee.

      Oh, a minor correction. I thought they only deal with audio. There was a separate company to deal with all visual material a few years back it seem they changed that and now they cover both audio and video. And this is all in accordance with law and they even get an occasional grant or award from our ministry of culture for the great job they’re doing.

    • Bubble181 says:

      No, you’re misinterpreting that law. The same law exists here in Belgium (vuilen ‘ollander :-P)

      The idea is NOT that you’ll be copying stuff illegally. The idea is that you’ll make a LEGAL copy of copyrighted material (say, a copy of a CD you own so you van keep one at your house and one in your car). The tax, supposedly, is to offset the fact that you didn’t buy the CD twice, so that the artist still gets a fair share for each of those copies.

      Of course, that law is STILL completely and utterly bogus, since it’s perfectly possible to use those empty data carriers (CDs or whatever) to copy not-copyrighted materials, or even things where you have the copyright yourself. Good luck getting that money back.

      • Raygereio says:

        @Bubble181:
        Yeah, I know; that’s the bullshit spin they put on it in order to sell it to the Senate. Which is still retarded because it’s supposed to be perfectly legal to make a copy for your own personal use. This is essentially a tax on a legal right you have.
        By the way, the original draft of that law (which was refused by the Senate due to poor wording) on the other hand basically just said: “It’s inconcievable people are doing anything but nasty, illegal things with these datacarriers”, which is where I got my interpretation from since the draft that made it through the senate just saw a small change in wording.

    • Alexander The 1st says:

      Officially this tax is called (roughly translated) “compensation for private copying”, this even though another laws says it’s perfectly legal to copy something you own for private use. Make sense out of that.

      It’s perfectly legal to own a house, but it’s also perfectly legal for the government to tax you on the property with a “property tax” to cover the fact that you’re taking space, even if you legitimately use it for farming, for example (If I understand property tax correctly.).

      • Raygereio says:

        Valid response and I should have worded that better.
        Let me try again: this is a tax which asumes you’re going to do something illegal. It’s as if you’re paying tax to own a car called “compensation for the pedestrians you’re going to run over”. By its very nature this tax is offensive because I’m being accused of doing something illegal the moment I buy a DVD-R to preserve my niece’s birthday party for the future.

        Also; when I pay my taxes, this money goes towards the state and the state can do usefull stuff with the money for the greater good (for a lack of a better term). And well, generally usefull that is.
        For instance, the tax that I pay to drive my car is used to maintain the roads I drive said car on. Wonderful symbiosis, no?
        However, what is done with this “compensation for private copying”-idiocy? I actually don’t know what’s being done with it right now as I’m to lazy to find out. But the last time I checked it out years ago that money went to stichting Brein (Dutch version of the MPAA/RIAA) so that they could make more useless-unskippable-frustrating-beyond-belief-you-shouldn’t-copy-this-DVD-skits that you only find on DVD’s you buy in a legal manner.

        If you can really find some reasoning to excuse the existance of this “compensation for private copying”-crap, then I’m mighty curious.

    • Felblood says:

      Are modern pirates still using DVD-R over there?

      We all have 1TB external HDs over here, so we can take our whole library to the LAN party.

  10. SteveDJ says:

    Help me understand here – DMCA doesn’t merely say “they must take it down”, but rather says “IF they take it down, they are safe – if they don’t, the are open for suits”… right?

    So, if a provider could get a court ruling that they are only the tool, and thus not liable for their users’ actions, then that provider could ‘ignore’ DMCA because they’ve already been cleared of any liability (let others try to sue, they will lose). Of course, getting such a court ruling in this day is likely impossible – but it is another way around the whole DMCA mess.

    • Avatar says:

      Legal system doesn’t work like that. You can’t go to the court and say “hey, declare me innocent of this!” The court will say “there is no controversy here, get out.” Only when someone’s accusing you of doing something (and not just accusing you of it, but actually filing suit) is the court interested in dealing with the issue. And they are interested in dealing with that issue EVERY TIME someone sues you – you can’t get sued by company A and have the court say “well, what you were doing doesn’t violate company A’s copyright” and the later company B sues you for a different copyright, then say “we already got sued for this and were found not guilty.” (The reasoning might be similar, but you actually have to defend the second lawsuit, and so if it’s not completely stupid, that could cost you a lot of money…)

      As far as Shamus’ complaint, the law states that filing a false claim of copyright infringement is a tort, and you can sue for damages. Fact is, though, you probably don’t have any actual damages in most of these cases (you weren’t making any money on it anyway) and so your chance of recovery in federal court is pretty small, especially given the expense of suing. So in practice, unless someone’s doing it maliciously, you’re not going to be able to recover.

      It’s also not true that they HAVE to allow you to post your content again. It’s true that under the safe harbor provision, once you’ve asserted that you’re not committing copyright infringement, they can re-post your content without becoming an accessory. But they’re perfectly free to look at it and say “pull the other one, it’s got bells on, we’re not posting this again”. Or to just say “you’re no longer welcome here, get out.”

      I’m not saying that Youtube couldn’t improve their procedure (specifically, notifying you exactly who’s complaining and about what content). But at the same time, the law’s about as good as you can expect it to get here – the alternative is that you find out about complaints when the lawsuit hits you, plus another lawsuit from Youtube for having used their service to make them an accessory.

      • Steve C says:

        From the DMCA (Section 512(f)):

        (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.

        Youtube is protected, but the company forcing youtube to take something down is wide open. If you go through the circle-jerk runaround of a takedown, counterclaim, re-takedown etc, then in theory you have a solid case under this provision to go after them. By them claiming they own your copyrighted material they are also infringing your copyrights in addition to misrepresentation. Someone who was willing to go through the hassle could really turn the tables on these douchebag companies that use bots with no regard to protecting against false positives.

        There’s probably a business opportunity here for an enterprising law firm. Instead of suing college students and single mothers for copyright violations, they could represent those individuals and sue the media companies for copyright violations.

        • Felblood says:

          So, as Shamus says, we need content posters to have ready access to information about who is attacking them, so they can sue them.

          However, there is a cheaper (for You Tube to install) and potentially more useful solution:

          Forcing the flagger to type in a clear description of what content is infringing and how would really give creators something to take to court when they go to court alleging “false claims.” After all, the exact verbiage of the claim will be there in his hands, and it will need to hold up under scrutiny.

          As a bonus, trolls spamming flags for kicks will have one more hoop to jump through. Most Youtube trolls are, after all, people too lazy and uncreative to invent a real practical joke.

          Cutpasting the same blurb many times should trigger a review process, by a real human being. It doesn’t take as much manpower to spot check two random vidoes as it does to flag a hundred videos with: Uses content from “That One Movie” owned by “XYZ Corp”; “That scene of the guy doing the thing is totally ours.”

  11. Wtrmute says:

    Question: Did you (try to) voice those concerns to the Youtube administrative staff, particularly the suggestion to list the begin and end times of each detected violation? Because I would like to think that the folks at Google would be open to such a suggestion and it doesn’t seem particularly hard to implement. Of course, if there is any other issue at hand which makes such a thing impossible, and I don’t see one, they would at least write a blog post about it in one of their many blogs explaining why it would be a bad idea. Either way, everybody would lose a little less than we do today.

    • Ben says:

      Its quite possible that Youtube doesn’t know exactly what part of the video is considered infringing. The requirements for a takedown notice do not require specificity on exactly what part of a video is considered infringing.

      It again goes back to service provider skittishness, without safe harbor protections Youtube ceases to exist so doing anything that might get them sued for violation of the DMCA is off the table.

  12. Torcano says:

    Im surprised Youtube/Google hasn’t worked out a system where for example, users can pay a monthly subscription (obviously variants like year, day-pass, whatever) to access Premium content.

    What is Premium? Well Google would need to set up agreements with large content producers…but imagine if all the copyrighted materials on Youtube were completely able to stay up, but only for subscribers??

    Additionally…maybe content producers of certain quantity/quality/rating whatever, even just selected are producing non-copyrighted Premium videos as well…maybe longer? Over X million hits?

    Or even just those videos without any ads? Or whatever combination of these ideas.

    Seems a lot better for Google and content producers. People making these videos are given free Premium memberships..and possibly could be hired/paid small amounts by Google if Premium really took off.

    And the companies would have a deal in place probably with a percentage based system..or something.

    Win-Win-Win-Win? For users, content producers, Youtube, and the rights holders?

    • Felblood says:

      Um..no.

      That’s antithetical to what youtube brands itself as, and by extension, what it gets used for. You Tube is ubiquitous because anybody can watch anything uploaded there, and vidoes get linked to, embedded and traded under the assumption that the recipient doesn’t need a membership to enjoy what you pointed him at.

      The Blog and forum links and embeds, that innevitable funnel the webserfers of the earth into You Tube to waste their days, would be in danger, and that is the only asset that YouTube can’t afford to place in peril. It’s that throne that makes them king.

  13. SatansBestBuddy says:

    This would make for another great article on the Escapist, I’m betting.

    It’s not like you signed a contract that states you have to make your articles about video game.

    Anyway, since you’ve already posted it here, send it over to the guys at YouTube too.

    On the one hand, they may not listen, on the other hand, they put in a voice play system in their comments after xkcd made a joke about them, so who knows.

  14. DancePuppets says:

    An important thing to remember is that for an entity such as the BBC (not BBC Worldwide, that’s a different body), it is illegal for them to make money from advertising, so they cannot assert ownership of the material and make money from it. The only option that they have is to have it taken down.

    • Alexander The 1st says:

      This is an interesting dilemma, since you have to account for these holders.

      Is that because it’s funded by a UK tax fee? Then CBC could be under the same issue as well, it seems.

      So the next time someone DMCA’s your version of Rick Mercer, remember; Rick Mercer is awesome.

  15. David says:

    It was interesting to read this post, then to read the Oatmeal complaining about being on the other side of the issue, with regard to a different service.

    • TechDan says:

      I was just reading that as well and it is not in the least the same situation. FunnyJunk is deliberately removing any attribution from content of dozens of people and hosting said content as their own, then claiming that they can’t control the actions of their users when one the actual owners complains. Then, when they FunnyJunk does comply with a takedown notice, they allowed their users to re-upload all of the infringing content, again without attribution, all while making thousands off advertising dollars from knowingly infringing material.

      Youtube, on the other hand, IS the original host of the content, the vast majority of content actually attributes original work to the creator, and fair use actually applies in many cases.

      The Oatmeal is NOT on the other side of this issue. His is a different issue entirely (that he is not being attributed for his work, and is therefore losing traffic). The Oatmeal’s work is licensed under the Creative Commons, so anyone is free to use his stuff with proper attribution.

  16. Mad Flavius says:

    While I certainly concur that “the little guy” frequently bears the brunt of this system, I do have to put in a word for Viacom, although it does pain me to say it (particularly given their actions in the past). It is a general civil law principle that, “he who does not defend a right forfeits it.” If you have a legal claim, but you do not press it, you waive that claim. For instance, in property there is the idea of adverse possession: a squatter on property, if he or she remains in plain view and fully uses the property, with the knowledge (“knew or should have known”) of the landowner, who doesn’t do anything about it, after a certain period of years the squatter becomes the owner of the property, and can bring a legal claim to quiet title and take full titled ownership of it.

    As related to this situation, if a court determined that Viacom did not pursue the protection of its tens of thousands of copyrights with “reasonable” diligence, and then later attempts to squelch a particularly egregious violation, that court may determine that Viacom waived its copyright through its earlier actions. While I can’t think of any cases off the top of my head where this exact situation has happened, I have no doubt that the legal team at Viacom is well aware of this possibility, and has advised Viacom “better safe than sorry.”

    So yes, these takedown notices are ridiculous. But Viacom doesn’t have as much of a choice as it may appear on the surface. They don’t want to roll the dice on millions and millions of dollars for their stockholders, if a court rules against them in a copyrights case down the road due to something like a YouTube video now.

    In brief, everyone is hurt by the copyright system, but most of all, intellectual progress in our society is severely stunted.

  17. Jabrwock says:

    No penalty for wrongful claims

    There is, but it’s so case-specific that it might as well be non-existent. The only counter-lawsuits that have succeeded were where a DMCA takedown notice was filed by someone who didn’t actually own the copyright on the material referenced. I believe there was a Russian psychic who got slapped for filing a notice on a clip that was actually owned by a public broadcaster.

    If, instead, a company is just over-zealous in trying to take down material in complete disregard for things like “fair use”, there is little you can do. In theory they’re not allowed to keep sending takedowns for the exact same content, but they can just claim “clerical error” and keep doing it. What’s *supposed* to happen is after the counter claim, they’re supposed to sue you directly, since now they have a legal notice from you saying “no, it’s not infringing, and here’s my contact info”. But they don’t bother, it’s easier just to pretend they never saw this video before and just file another takedown.

    • Peter H. Coffin says:

      Further, actually recovering anything from someone filing a false claim is extremely remote because the DMCA requirements for filing the claim in the first place are completely without verification. YouTube, for example, doesn’t even have to verify that the filer of the take-down notice is a real and contactable party before taking the material down. “Donald Duke, 123 Main St., Orlando, FL” is essentially real enough for these purposes. So, in reality, it costs the filer of a false takedown notice nothing.

  18. Mad Flavius says:

    I know I’ve blathered enough, but I have to put in one final word for those dastardly corporations in general. As publicly-traded corporations, companies like Sony, Viacom, Microsoft, Activision, et al have a board of directors, which is responsible to the shareholders. The important thing to realize is that in America (I’m not familiar with int’l law on this point), corporation executives have a fiduciary duty to their stockholders. This means that, by law, the directors must take all commercially feasible actions for their company that are reasonably likely to make money. (I’m paraphrasing this from memory, so bear with me, legal eagles likely could correct some of my language, but the general point remains). What do “commercially feasible” and “reasonably likely” mean? Good question. That is determined by case law and by the judge. So any rational person, when faced with a legally-mandated duty to zealously promote the interests of the shareholders (aka, make money), would aggressively defend copyrights, release tired old yearly sports games that are guaranteed to make money, produce sure-fire blockbuster sequels, and generally invest in known winners. Most distressingly of all, the most far-out indie gambles in gaming, movies, music, etc, if a judge is feeling ornery, could be considered “unreasonable” commercial ventures and land the directors in serious legal trouble. Rather than blaming executives who are bound by this heinous affirmative duty, we should instead blame this ridiculous legal system which punishes innovation and stunts growth.

    And yes, there are awful CEOs and horrendous presidents of companies. Sturgeon’s Law still applies.

    • krellen says:

      This means that, by law, the directors must take all commercially feasible actions for their company that are reasonably likely to make money.

      Your point is completely and utterly untrue. There has never been a court case decided on the merits of “you must make money for your stockholders”. The only one that’s ever quoted that way is Dodge v. Ford, which was actually a ruling of “stop withholding your profits from your stockholders because you don’t want competition”.

      Companies do NOT have any legal responsibility to produce or maximise profit.

      There are a great number of social and business pressures upon these people to do so; there is absolutely no legal pressure to do so.

      PS If your business/corporate law professor told you otherwise, your professor is wrong – either because they’re too stupid to know better or, more likely, because the real answer is complicated, variable, and “making money” is just an easier answer to the question of “what’s a corporation for”.

      • Mad Flavius says:

        1) I explicitly stated that executives of publicly-traded corporations, not “companies,” have this fiduciary duty.

        2) I explicitly stated that I was paraphrasing when I said “making money,” because yes, it is a complex issue. I did overstate when I spoke of “zealously promoting” the interests of shareholders; but it remains the case that a court can determine that a director has violated his or her duty of care to the corporation by making what the court determines to be an irrational decision. Does the decision have to be very irrational, and not just an uncertain or perhaps even unwise decision? Yes. But who determines that irrationality? The judge. Any rational CEO, when faced with that possibility, however distant, would act in the manner I detailed. To do otherwise would be to tempt fate, particularly as judicial sentiment continues to shift to favor consumers over producers.

        3) Responding to my initial comments with vehemence and referring to a highly-trained professional with the (albeit qualified) statement “too stupid to know any better” is unnecessary, and significantly reduces the actual impact of your statements. Vitriol does not lend persuasive power.

        • krellen says:

          It remains fact that there exist absolutely no legal responsibility for companies of any nature to make money, or even “vehemently pursue shareholder value”. Courts do not find executives legally responsible for failing to do so.

          The pressures upon them to do so are social – pushed by the shareholders themselves, whom have the power to remove these executives from their positions. It is not a legal obligation.

          And to point 3: as I expressed the last time someone brought this up on Shamus’s blog, I’m sick and tired of this false idea of some “legal responsibility” for corporations to be psychotic jackholes, and I’m sick of it being brought up time after time by people that should know better.

          I’ve been arguing against this idea on Shamus’s blog for over a year. Do I have to be nice about it every time some person comes along thinking they’re making some great “insightful” contribution by continuing to perpetuate this myth?

          (And the more we let people get away with the “making money” myth, the more likely it becomes that the people teaching this actually are “too stupid to know better”.)

          • silver Harloe says:

            “the last time” would be me. I was paraphrasing Joel Bakan’s book The Corporation, which I believed to be accurate and well researched and all, but later I discovered that he was basing the statements about “legal responsibility” entirely on a common misreading of Ford v. Dodge. I later found an article positing that this common misreading of FvD is actually taught by some lazy law professors (it’s the first off-site article cited in the wikipedia entry on FvD), so it’s possible that Joel came across this misinterpretation unknowingly rather than maliciously.

            Either way, Joel was right that even though corporations don’t have a legal responsibility to be psychotic (in the clinical sense), there is tremendous evolutionary pressure upon the publicly traded ones to do so – stock traders don’t (by which I mean rarely) invest in ideas, they invest in numbers, and some traders don’t even have people making the decisions anymore, sad to say.

            Anyway, there is one point I’d like to disagree with you, krellen, about: when different people post that same misunderstanding, it’s quite possible, even likely, that they are unaware of your yearlong history of fighting it. Treating each new one as if they are the same person unwilling to learn, or as if they have an obligation to be familiar with every comment-reply thread in this blog for a year, seems a little unfair. Especially when they may have come across the misunderstanding honestly from their law professor or a documentary they thought was better researched than it was. It was because of your reply when I brought it up last time that I discovered the source of my error, and I thank you for that, but it’s also possible that I’m the only person who was educated by it because there is a LOT of content in the comments of these blog posts.

            Actually, come to think of it, I only think the “last time” was me. There’s been so many posts since then that this may have come up in the meantime with my being completely unaware of it. I only use a regular web-browser to read this blog, so the threading limits my ability to detect new replies, even in posts where I still look for new replies.

            • krellen says:

              I think most people don’t come to the conclusion maliciously. Text, of course, often reads as more vehement than actually implied, as well; this is a hard thing to combat. (I should write a standard “that’s not true” post and just cut-and-paste it every time it comes up, I guess.)

              But yes, there do exist strong social pressures for corporations to act in blatantly anti-social ways, and there are great social pressures for them to think in favour of short-term goals over long-term goals.

              But it’s important to understand these are social, and not legal, pressures, because there’s vast differences between how you go about “fixing” the problem. If everyone thinks it’s a legal responsibility, they feel more helpless to change it (this leads to the nonsensical assumption, for instance, that even if one were majority shareholder of a corporation, they would still lack the power to change the corporation’s behaviour, which is simply untrue.) By understanding it’s a social problem, it becomes something “we” can fix, just by changing our behaviour.

  19. pffh says:

    Huh I read this and then I click over to youtube and guess what I got one of those claims on my newest lets play video from Konabu. I can’t find any connection between konabu and the game I’m covering so I search for them on youtube and it looks like it’s a russian game reviewer (I think I don´t speak russian but there were a lot of game intros on the channel and a russian guy speaking over them) so I decided to dispute claiming fair use and the fact that they don’t own the game I’m using.

    *Self pluggage time”

    http://www.youtube.com/watch?v=0ucjwPlrdNQ <- part 1 of my finished alien vs predator marines lets play

    http://www.youtube.com/watch?v=yR3HRd6qMBY <- part 1 of my new singularity lets play (the disputed one)

    Check them out if you feel like listening to a guy with a a weird accent stumble about and ramble a bit.

    Hope you don't mind those links Shamus but if you do I won´t hold a grudge if you delete them :)

    EDIT: Hot damn that was fast. The claim against my video has been removed yay :D

  20. Amarsir says:

    Your quotee lost me here:

    And in the face of this extremely mild (compared to criminal justice) threat, all the rules go out the window. Justice is, “Throw a bunch of random people in jail. The ones that can fight their way back out are probably innocent.”

    Is there a YouTube Prison I don’t know about, or is “thrown in jail” the new slang for “that site I don’t pay any money to isn’t willing to host my derivative work in the face of complaints”? I still think CBS is being silly. And I’ve never been particuarly impressed with YouTube’s insight or detail focus. But exaggerations, entitlement, and outrage aren’t particularly convincing either. And let’s not forget that there are many genuine violations on YouTube, direct unmodified uploads of current or semi-current media. Do they not deserve any protection?

    Lastly, the quotee said:

    The excuse given by copyright holders is, “Well, we can’t sue all these little people, so… we’re suing you. Doing it properly is too hard, so to hell with your world-changing technology.”
    Anyone who was nodding to this should no doubt be happy to know that Nu Image production company has launched lawsuits against more than 23,000 people accused of sharing The Expendables via Torrent. Doing it “properly”, suing “all these little people.” So there you go.

  21. CalDazar says:

    Is not a false DMCA claim perjury?

    • Steve C says:

      Yes and No.
      (Section 512(c)(3)):

      (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.

      Note the comma. What a claimant has to say is that it’s accurate. If it’s an inaccurate statement (aka a false DMCA claim) then, no it’s not perjury. It’s only perjury if they claim they are acting on behalf of someone they aren’t. So if I tell Youtube that what Shamus has made is mine, that’s not perjury. But if I claim in a takedown that I’m representing Activision (and I’m not) then that’s perjury.

      However a false counterclaim is perjury. That’s the purpose of the Good Faith Statement copy and paste bureaucratic nonsense. If you cut and paste recklessly then you have committed perjury.

      So they can lie and say “oops” but if you did it back you’d be guilty of a serious crime.

  22. Gale says:

    Your video may include content that is owned or administered by these entities:
    Entity: Audiomicro1 Content type: Sound recording

    If you think you have a valid reason to dispute this claim, proceed to our Dispute Form. If you would like more information on the copyright process, proceed to our information page. If you would like more information on the claim that is being made against you or the people who are making it, please be careful of the door hitting you on your ass as you make your way out.

    Anyone else reminded of Franz Kafka’s The Trial?

  23. John R. says:

    Even when fighting things like rape, murder, and theft, the police are (theoretically) bound by firm rules to keep their power in check, because injustice is worse than no justice at all. But here we’re dealing with simple civil cases. They are combating against situations which may infringe on copyright in a way that could be financially damaging. And in the face of this extremely mild (compared to criminal justice) threat, all the rules go out the window. Justice is, “Throw a bunch of random people in jail. The ones that can fight their way back out are probably innocent.

    In fairness, civil suits have always differed from criminal law in this way. In criminal law, the consequences of a false positive are horrific, so we design the system to prefer false negatives. Civil law, by contrast, tends to be designed to minimize false outcomes in general.

    • wootage says:

      True, but civil law was originally developed to settle disputes between individual parties. But as we expanded our personal reaches, we also expanded the scope of civil suits.
      Now it’s to the point where we have the ability to use a single suit to sue the entire population of a country -1 person (the suitbringer).

      • Ashewyntr says:

        Actually, why bother to exclude yourself? Feel free to sue everybody, as the proceeds from the suit will easily cover the payment you owe to yourself.
        Wait…

    • Nidokoenig says:

      The problem is, criminal law is designed to put everything in favour of the defendant, because the prosecution is the government, with all their vast resources to bring down on one guy. He needs every chance he can get. Civil law is based on balance of evidence, because whatever happens, someone’s gonna have to pay up and they need a level playing field to be fair. An easy fix for this would be to switch to innocent until proven guilty if the plaintiff or who they’re working for makes ten times more than the defendant does.

  24. Guvnorium says:

    Myself and a friend have started doing a youtube series thingy involving the enirety of “The Battleship Potemkin,” which as far as I can tell is in the public domain. (This is important, as we are using the entire movie which, as far as I can tell, is not really Fair Use.) When we uploaded the video as unlisted so I could look it over, we were informed that it was down due to a copyright claim by Mosfilm. He sent in a counter claim, and it was back up in less than thirty minutes. The same thing happened when we uploaded a modified version of it for public viewing, but this time it only took ten minutes for the counterclaim to go through. I have no idea what this means. My friend is uploading the next part now, and we’ll see what happens with that. This whole situation has been confusing, and I would love to know why it’s flagged, if they’re willing to put it back up almost immediately. Of course, due to the lack of communication mentioned in this article, we have no idea why…

    EDIT: Mosfilm is now claiming ad revenue. Fun times.
    EDIT 2: Counter claim was accepted near immediately. I guess Russian film companies aren’t given the same treatment as American ones.

    Oh, and here it is if anyone cares. Figured I might as well link it…
    http://www.youtube.com/user/TLCommentary#p/a/u/1/D7Mggq5OEt0

  25. Robert says:

    WOW! Nice article! Thanks for the info. Here is something to think about. That old music network that played videos at one time back in the 80s. Well they got sued for making tons of money by selling ad time and being able to play the music videos, sued by the folks who gave them the music. So that music network went into the business of making thier own shows and dumped the music format. Hence the death of music TV. The labels missed the switch in this technology and how music is distributed. I think the big companies are at a loss for not knowing how to get a piece of the action. The CD is extinct. The net is out of control. Why would I buy a CD or even pay for a download, when I can hit repeat of a song on You Tube/Vevo for free all day long? This makes no sense. They have done themselves in yet they still complain. These media companies should split the profits with the uploaders. All this does suffocate the creative spirit. I work with bands who love to even get a mention on the radio or TV let alone someone get a million hits on a video with thier music in the background. If it’s really against the law, then why make the technology readily available to allow it to happen?

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