Takedown!

by , Dec 16, 2013, 4:19 PM
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Last week, YouTube updated its ContentID policies; many channels suffered setbacks.  As my company produces both fully cleared and transformative clips using third-party footage, I was wary that we would face similar issues.  We got a few claims that we replied to immediately and largely resolved.

By Sunday morning, there was no reason to be wary.  Yet by 1 p.m., our videos had disappeared. 

The channel is back up now after a 21-hour downtime.  We would have come back up sooner, but to remain DMCA-compliant, YouTube had to abide by its rules.  Despite YouTube's best intentions and efforts, it needed time to process the retractions.  So, we had to wait for YouTube to properly process the claimant's retractions for our channel to reappear.   That was done this morning.  So that was one issue.  That happens and over time, YouTube will address it.

All's well that ends well?

Fair use is as much of a business decision as it is a legal framework, with pros and cons.  And, building one's business on anyone's platform -- be it YouTube, Facebook or Twitter --  had its own risks.Yesterday proved that.

However, as the claimant's retraction demonstrated, we didn't invent fair use; inasmuch as copyright law gives rightsholders specific protections via section 106, section 107 gives organizations the right to create new transformative works provided they pass the four tests of fair use. The precedents are clearly in our favor, as long as you understand the limitations and commercial applications thereof. 

So the second issue has two subsets:

- automated copyright bots pick up a lot of videos that are in fact not infringing;
- after a counter-notification is reviewed by a human being, the claimant can release or reinstate the claim. To their credit, most of the claimants in our episodes retracted their claims immediately.  But often the person receiving the counter-notification is not necessarily well-versed in legal matters (or common sense).  This boils down to the DMCA and training.

How Neutral Is YouTube?

They say that behind every great fortune is a crime, and some could argue that behind YouTube's great fortune is a crime (I don't agree with that statement).  But because YouTube did grow in the face of multiple legal challenges, then I personally believe that it has always sided more with big media than with new creators.  I think that is perfectly normal and to be expected. 

You may recall that YouTube last year modified its takedown process. Instead of automatically siding with the claimant after a refused counter-notification, it now remains neutral and requires the claimant to pursue a trial, which is the correct legal thing to do.

Similarly, while I am not here to tell YouTube how to run its business or educate its lawyers, I respectfully disagree with YouTube and/or DMCA automatically taking taking us down based on the claimant's position (since retracted, mind you) only.  In other words, the proper legal path would be for the claimant(s) to demonstrate in a court of law that the accused did in fact break the law, and provide YouTube with a court's finding to that effect, at at which point YouTube could obliterate the demonstrated infringing channel.

Irreparable Harm

Moreover, YouTube absolutely needs to better educate those that access ContentID.  It's evident why YouTube arms rightsholders with ContentID, but there's absolutely no real drawback for a claimant to be overly aggressive.  One "watchdog" that represents rightsholders incentivizes its employees to issue incorrect or overly aggressive claims (if you read reviews by their employees on a popular employer review site, this is crystal-clear).  Another big media organization bragged in another lawsuit about abusing the takedown process. 

Yet maybe because of YouTube's own history of litigation, it refuses to punish those who abuse the tool, even though the balance of inconvenience clearly does not favor hose with ContentID (unless we are talking about flagrant violation of copyright, where a user uploads a full-length movie or album, which does possibly reduce the resale value of said work).

So sure, we lost some revenue during our downtime; that happens.

But we lost a lot more.  Thankfully we are not in fundraising mode or for sale, but say an investor or acquiror saw that we were down due to multiple copyright infringements -- wouldn't that be tantamount to "irreparable harm" through the loss of goodwill and reputation?

Absolute Power Corrupts Absolutely

I suspect that over time, the DMCA will become more neutral, and YouTube will realize that it’s armed rightsholders without creating checks and balances to ensure that this power isn't abused.

3 comments on "Takedown!".

  1. Paula Lynn from Who Else Unlimited
    commented on: December 16, 2013 at 4:41 p.m.
    Google is becoming more absolute every day. What gives you the idea that Google has to be better to their clients or customers ? You understand more than most people and are one of the clearest writers ever. Google will turn their beasts on you, absolutely. Which entity has the power to control Google ?
  2. Pete Austin from Triggered Messaging
    commented on: December 17, 2013 at 6:30 a.m.
    There is a "real drawback for a claimant to be overly aggressive" - it's called public opinion, but it relies on people like you naming them instead of calling them e.g. "the claimant". We can all guess why you did this, and I sympathize, but as you were not willing to take action, isn't it very unfair to criticize Google and YouTube at great length for doing basically the same?
  3. Ashkan Karbasfrooshan from watchmojo.com
    commented on: December 17, 2013 at 11:21 a.m.
    Pete, to be very fair & transparent: 1- I am given 800 words in these columns, I am pretty sure I submit columns with 800 words ;) 2- There were in fact 3 claimants. So I tried not to get into the specifics of each three here, but on other blogs and our updates to our viewers I certainly addressed the specifics of each one. 3- As per YT, the reason why our channel went down was because of YT and not technically the claimants. It was a procedural matter on YT's end, but when all things are considered, I basically hold no grudges towards YT and am just happy it was resolved in 21 hours... I think people could criticize me for being too nice towards YT, if anything, whereas you suggest I am blaming YT. In other words: while no one can really blame the Claimants, one could blame YT (and even then, I don't). Maybe I've become a zenmaster, but in the GRAND scheme of things (life, business, health, etc) I am just very grateful that it was resolved in 21 hours.

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