It is perfectly clear that YouTube can stop it. As the article points out, we know there are things YouTube can do because those are the very same things The Verge asked about and YouTube refused to answer. The DMCA is broken, yes, but YouTube has made it worse with their kind-of-but-not-actually-DMCA counter-claim process.
If they really wanted to solve it, here's an idea: if you get a takedown notice you also get a button that says "I am sure my content does not infringe copyright and I'm willing to go to court for it". YouTube reinstates your content and, if the entity with the claim disagrees, they can take you personally to court. Is this good? No, but that's on the DMCA. Is it better than now, when you have no recourse? I'd say yes.
Youtube already has that system. I had to go through the process due to a similar situation with someone falsely content ID'ing my video. In that case it was someone uploading music they didn't own to some online music distribution service. Basically the way it works is after you dispute the content ID claim and whoever filed it still says the content is theirs, you can escalate the dispute to an actual DMCA counternotice. After this, your video gets restored and the copyright strike gets taken off your channel.
I think the reason why the person in the article didn't do this is that the DMCA counternotice process requires the person filing the counternotice to provide their full name and address so they can be served if the rightsholder decides to sue them. With problems like swatting going around, I think many people would be reluctant to provide that information to someone who they already know is trying to mess with them.
Yet YouTube's system takes a lot of time from the time the content is claimed to the time you can escalate to an actual DMCA. In this time your video is down or has its revenue redirected. And if your content gets too many frivolous claims your account is taken down by YouTube's three strike policy before you have finished the dispute process for the first video.
A single button to immediately and without human review or notice period restore the video and monetization, remove the strike, and declare you are willing to solve it in court would solve a lot of the issues with ContentID abuse on YouTube.
Such a system would likely have to sit behind strict identity verification to prevent abuse, and some people wouldn't like that. But that's the price for sharing a platform with some very blatant infringers
Your idea for a "single button to immediately restore the video" system would violate the takedown process outlined in the DMCA. The way it works is that after someone sends a takedown request, the content can't be restored until 10 business days after the person who uploaded it sends a counter-notice. This gives whoever sent the takedown request enough time to decide whether they want to file a lawsuit and keep the content down.
Agreed that Youtube's system has problems with how long it gives claimants to respond to the initial content ID dispute and with people spamming false claims. It's definitely not a perfect system.
> Your idea for a "single button to immediately restore the video" system would violate the takedown process outlined in the DMCA.
IIUC, YouTube's copyright system is not a digital implementation of the DMCA. It's an additional system that occurs before the DMCA notice/counter-notice process so the laws about the DMCA are moot because it's not a DMCA notice (yet).
You're right that it's an additional system prior to the DMCA process. I was interpreting his/her "declare you are willing to solve it in court" as applying to the DMCA takedown process, as that's what filing a counter-notice does.
> The way it works is that after someone sends a takedown request, the content can't be restored until 10 business days after the person who uploaded it sends a counter-notice.
I'd be curious to know if this has ever been challenged in court as an unconstitutional prior restraint. Pretty obvious problems if you get people e.g. issuing fraudulent takedowns 10 days before an election.
YouTube is a private entity; as long as they comply with the DMCA, they're under no obligation to take content down or even make content available (outside of contracts they enter into voluntarily). The DMCA doesn't provide strict timelines (just that the initial takedown requires the provider to "act expeditiously", and nothing for restoration).
The bigger issue is that Content ID has always been a way for YouTube to side-step the DMCA in a way that's beneficial to big copyright holders -- channel operators assume risk fighting a takedown in a way that was never a part of the DMCA.
> YouTube is a private entity; as long as they comply with the DMCA, they're under no obligation to take content down or even make content available (outside of contracts they enter into voluntarily).
"Comply with the DMCA" is the issue. If the law requires user-generated content hosts to take down content and leave it down for 10 days or they lose a legal protection that keeps them from being incinerated by lawyers, that's effectively a legal requirement that they take it down for 10 days, i.e. a prior restraint, which is typically not allowed.
> The DMCA doesn't provide strict timelines (just that the initial takedown requires the provider to "act expeditiously", and nothing for restoration).
What's this about the 10 days in 17 U.S.C. § 512(g)(2) then?
It would not. As youtube's "dmca" isn't an actual one. If they did actual dmca's it would in fact go against the dmca. And on a side note, there does not have to be a 10 day window for the reciver of the DMCA to file suit. Once someone files a DMCA against you you can file an instant action as they made a legal claim against you.
The DMCA does not obligate Youtube to do any of the claiming/strikes parts. They could straightforwardly separate out the two processes - a voluntary expedient web process with the contentid fingerprint arbitration, one-click immediate counterclaim, no need to dox yourself, etc. And then a heavyweight strict DMCA process that fulfills DMCA obligations to the letter of the [unjust] law, requiring the waiting period for restoration after the counterclaimant doxes themselves, but doesn't drag in all the extrajudicial "strikes" and whatnot. The filing of a heavyweight DMCA would forgo the option for the voluntary nimble process.
Of course there are plenty of corporate authoritarian imperatives for why they don't. This comment is a thought experiment to demonstrate their complicity in how their system is routinely abused.
I went through a situation similar to yours, and encountered an additional discouraging factor: YouTube seemed to threaten to take down my channel entirely if my appeal was to be rejected. There was also no real option for "the person making the Content ID claim obviously doesn't own the copyright to the work in question" (in this case, the famous "yeah! woo!" a.k.a. "think break" sample; the Content ID match was from what seemed to be a remix of "It Takes Two"), so I was at the mercy of whatever opaque process YouTube deemed fit to review my case - and was a bit spooked when it came to potentially losing my whole channel (and who knows what impact that'd have on my broader Google account).
Thankfully, I was able to find the contact info for the Content ID provider in question - and within a day of emailing them they pulled the Content ID claim, noting that the customer of theirs who uploaded that think-break-containing song did so in violation of the company's ToS (which specifically forbids uploading music containing common samples like that for this exact reason). It ended up being a happy ending, but it still left a sour taste in my mouth w.r.t. YouTube's policies and practices when it comes to Content ID and copyright claims in general.
I play classical piano and sometimes upload to YouTube. You're right that there's no easy way to say "the person making the Content ID claim obviously doesn't own the copyright to the work in question". This happens almost every time I put a recording of myself playing Chopin, Bach, Mozart, etc and I get a notice from BMI or DG, etc.
You'd think that YouTube could at least categorize those who perform and record unambigiously public domain works and advise people using automatic match software to be _very_ sure there's an infringement.
Someday if I have time and patience, I may try to see what legal options I have against one of these deep-pocket companies who are making false (and libelous) claims about the recordings I have made. They're accusing me of theft, and it's provably false.
What's annoying is sometimes I'm on the road and don't get to responding to the request for several weeks.
Well, keep in mind Content ID [1] is in response to Viacom v YouTube [2] despite Viacom not winning (largely on the grounds that Viacom itself didn't know which works were copyright infringement so how could YouTube).
So, the system exists to placate large rightsholders. It's not going to be modified to cause them problems.
> the DMCA counternotice process requires the person filing the counternotice to provide their full name and address so they can be served if the rightsholder decides to sue them.
It's even worse than that: the DMCA counternotice also requires the person filing the counternotice to agree to the jurisdiction of the USA courts, even if they live somewhere else. I think many people would be reluctant to take that additional legal risk.
They wouldn't even need to go that far. The current way YouTube's system works is so deck-stacked against the creator to a ludicrous degree. Basically any "copyright holder" just has to say "this belongs to me" and YouTube immediately funnels all revenue for the video to that holder, with basically no oversight whatsoever, and as anyone in the space will tell you, a video makes 90% of it's money in the first few days which means these holders can grab the monetization right out from under a creator and steal just, all their fucking money. It's ridiculous.
Like all you would have to do to, perhaps not fix, but heavily mitigate this, would be to have YouTube just... hold onto the revenue until the dispute is resolved. It's barely even a change. And most of the time, when creators do counter the claims, they're eventually dropped but again because of how that system works, YouTube has already funneled all their money to the claimant, irrespective of the determined validity of the claim. And it would discourage bullshit claims because even as low-rent a scam as this is, it is some amount of work, and if there's no payout, you necessarily reduce the number of scammers who will attempt it.
I don't know if that's a DMCA thing, I admittedly haven't researched it in a long time, but I don't see how that would put YouTube at any kind of liability. Any reader, do feel free to correct me.
It's not a DMCA thing at all. DMCA 512 is actually pretty straightforward, you're referring to YouTube Content ID, a completely separate parallel takedown system that YouTube made at the behest of their content licensors.
If the media companies had their way, everything would work like YouTube Content ID, because that's the system that minimizes their enforcement cost. What they want is to make everything Someone Else's Problem.
Caveat is if you file the counter within 5 days. From listening to a few creators describe the counter filing process, you need to gather a lot of evidence to prove that you are not infringing. It apparently takes a lot of time and what happens is that targeted harassment very easily turns into a DOS-like attack. So 5 days is an unreasonably short time window that puts an extreme burden on the content creator.
Edit to quote the full section because the cherry picked quote is misleading:
> If you dispute a claim within 5 days, any revenue from the video will be held, starting with the first day the claim was placed. If you dispute a Content ID claim after 5 days from the original claim date, we'll start holding revenue the date the dispute is made.
There's a guy on YouTube that does discussions about star wars, and has an into music that he got the rights to use from the author.
Someone who didn't have the rights resampled the original song and submitted it to a label (not sure that's the right term), and the label proceeded to DMCA every single video the guy had posted.
Over a thousand videos, having to gather all that info for all of them, go through the appeals process on all of them. For him it was a manual action one at a time. From the label they have an API to bulk initiate claims
There was also the example of family guy copy-pasting a 10 year old youtube video of an exploit of an old NES game into an episode, and that video which predates the episode by 10 years (or something) then got taken down because it infringed on the family guy episode that copied the video.
Big tech has such a twisted incentive structure for devs that I don't see this getting solved unless it impacts YouTube's bottom line. Execs won't care, and ICs will be actively penalized for fixing this vs working on "business priorities."
God I wish there was a decent competitor to YouTube. They get away with so much horseshit because there's just nobody else that can match their service scale and network effects.
Google owns the platform and the ad network / marketplace. A lot of videos ‘lose’ money and just take up space.
Any viable competitor to YouTube would need a solution that allows signups, watches and video uploads, without requiring a fee. Which typically means displaying ads. For Google the ad network is already there. For anyone else, they need to either create their own marketplace, or have Google (or some other network) take a large cut of their ad revenue.
This is likely why the only other ‘competitors’ you see are peering based or based on a subscription model. Neither of which can really compete with YouTube which really doesn’t need to *directly* make any money
> And how long do you think it would take until the competitor would end up in the same situation?
YouTube ended up in that situation for two reasons. First, the original YouTube before Google bought it was playing fast and loose with the law and was in the process of getting sued over it after Google bought them. Second, Google wants to license Hollywood content for YouTube TV etc. So between wanting to settle the lawsuit and wanting to sell their soul and become Comcast, Google agreed to do a lot of this draconian BS that isn't otherwise required by law.
A competing service that just wants to be YouTube without being YouTube TV could plausibly follow the law without steamrolling the little guy quite as much.
Partially because it kind of sucks, but maybe more because Google owns YouTube, has 90% search market share and heavily favors YouTube videos over other video hosts in search results.
Which means you need it to not suck or have some other countervailing advantage which is enough to overcome that, e.g. TikTok, but without the geopolitical issues of that one.
They're an ad company at the end of the day; they still want their cut of the monetization.
Additionally both sides of the dispute normally still want the monetization, they just disagree about who gets the proceeds. And because of the time value curve of YouTube videos (most make something like 90% of their revenue in the first few days), demonetizing has a good chance fo essentially erasing the revenue of the video for the creator.
I mean, then YouTube is substantially cutting into their own revenue too, but even that would be better than just handing over all the revenue to an unverified 3rd party that clicked a button.
> I am sure my content does not infringe copyright and I'm willing to go to court for it
This is exactly what the YouTube copyright counter notification is. The problem is that YouTubers aren't lawyers, so they don't want to risk going to court.
Right. Part of the reason why it's hard to start a business is having to deal with unfair bullshit. Youtube streamlines enough of the process to get people started relatively easily, but they get a lot of shit from these same creators for not doing everything for them.
they get a lot of shit because most youtubers would be forced to hand over their pii (name and address) to the reporter. Some reporters are doing this solely to get that information (stalkers, doxxers, etc).
It's unclear, to me, if youtubers could proxy this through an attorney.
Because all creators have the means and resources to hire a lawyer to fight forces much more powerful and wealthier than they are. This is blaming the victim.
Welcome to being a business owner. Nobody is going to protect your business more than yourself. A tenant refuses to pay rent and eviction takes a year? Too bad. Next time, do a better job of screening for risky tenants.
The problem with the victim first mentality is that it causes you to underestimate how much agency people actually have (e.g. being unaware of how excessive tenant protections decrease the supply of housing available to low-income earners).
You know not all content creators are out for money, right? If you want a trivial example, I am one of them. It may even shock you to learn that in the before-times, people even created content purely for fun and the entertainment of others. Wow! Hardly believable now, especially reading this post I am replying to.
That said, again, how is a small creator, which at least several nines of all creators are, supposed to scratch up the legal and financial resources to fight massive corporate interests and industrial scale fraud? Why is the onus on them, rather than the platforms that enable this kind of behavior? Like, I'm not trying to be overly sarcastic here, I'm genuinely curious how you make sense of this in your head. Is it like "oh well, that's the way of the world, fuck em?" kind of thing, or is it based on some kind of sound principle? Because the way things are do not really help anyone, except behemoth media interests, and especially hurts the quality of content online, which if I can make an assumption, you and I both consume. Which also, ironically, hurts the very platforms that (I suspect) you are trying to stan for here. Make it make sense?
> people even created content purely for fun and the entertainment of others. Wow! Hardly believable now, especially reading this post I am replying to.
Believe it or not, I shitpost on the internet for fun. Sometimes, I get flagged for bullshit reasons (moreso Reddit than hackernews), and there's nothing I can do about it. Since it's for fun though, it doesn't really cost me anything outside some minor frustration.
> That said, again, how is a small creator, which at least several nines of all creators are, supposed to scratch up the legal and financial resources to fight massive corporate interests and industrial scale fraud?
This article is talking about a small-time copyright troll who is obviously pretending to be Nintendo. There is virtually no risk of calling their bluff because they obviously aren't going to commit identity fraud in court. Chances are, the troll has better things to do than to leak your personal information, but if you're worried about that, you can hire a lawyer to file the counter notification for you for a couple hundred bucks. I'm sure there are ways to do this yourself as well if you need to fight a lot of claims. Just spitballing here, but if you have a business owner friend, you can use their business address and have them be your representative and file on your behalf.
If we're talking about large corporations with armies of lawyers like real Nintendo, then there's not much you can do besides hiring a good lawyer and listening to their advice. For very straightforward cases, you can probably play lawyer yourself so long as if you do enough research and preparation (again, just spitballing). Also, it's not like Nintendo is unaffected by legal costs. In fact, any legal action will probably be several times more expensive for them than it would be for you. If they're pursuing legal action, they likely genuinely believe they're in the right.
I make free videos why tf would I ever hire a lawyer to protect my parodies. It's incredibly stupid considering that I am not a billionaire and that the copyright holders are. I would be throwing my money in the bin. And they know this full-well, which is why the system works in the first place.
Consider the following: I make a form of parody that is known as a Youtube Poop. It was all the rage last decade, but now it's a dying art.
In part because of these stupid DMCA rules preventing people like me from expressing their creativity.
I can appeal the strikes, but every time I do so I risk losing my channel forever. I don't monetize, and I only make parodies of stuff that came out over 10 years ago. So I've already accepted that the existence of my channel is ephemeral and that one day it will probably disappear forever.
But I don't have any other platform to go to if I want to share my 5-10 minutes long edits with more than 4 people.
Why am I not allowed to continue an art form that owes its name to the platform that spawned it? Is protecting the copyright of some random anime adaptation or cartoon (that no one gives a shit about anymore) seriously more important than creating novel art?
Copyright lasts WAY too much.
And no, I don't really want to go to court over this bullshit. But I am firmly convinced that it's in my rights to produce it. It's just that what counts as "my rights" depends entirely on the jurisdiction, because the law is a joke meant to protect people who can afford good lawyers -- it's not meant to actually enforce justice. Or rather, the concept of justice is so malleable that it basically means nothing in a globalized world.
Also, I'm from Europe. Which court should I go to when I infringe on an american dub copyright for a japanese cartoon, exactly?
But here it's not so much even about DMCA, as about YouTube's own para-legal system and trolls abusing it.
At this point, if you are still using YouTube (or another platform), you're part of the problem (we've already been talking about this specific issue for 15 years already !!), use something like PeerTube instead !
Even more so if you're in Europe, heck, we even have the example of VLC basically violating DMCA and US patent laws for decades and they are still online - notably because they're not under US jurisdiction :
Comments like yours are why ycombinator has a horrible reputation. It's a worthless dismissive truism to shut down a legitimate complaint from a creator who is being screwed around by bad laws and bad applications of bad laws. Yes, we know we don't have rights, that's why we're complaining.
If you are an American citizen, the 1st Amendment to the United States Constitution mentions your God-given right to any audience that wants to listen to you.
A plausible interpretation of "you don't have a right to an audience" is that people don't have to watch your dross if they don't want to, and this is the meaning which is normally meant to be implied (the motte in the motte and bailey).
Then people want to use it in the sense of, you don't have a right against someone else interfering with your interaction with your willing audience, i.e. you don't have a right not to be censored by a government or corporate oligopoly. But that is a far less defensible proposition.
Exactly. Or even "you don't have a right to a platform".
You can speak your mind. That doesn't mean YouTube is obligated to broadcast it for you, nor does it mean your speech is being suppressed if they choose not to.
The premise being that you have lots of other equally-viable alternatives. Which was probably true on the old internet -- just use a different host.
The modern one where the adversarial video host is owned by the search engine with 90% market share that disfavors competitors in the search results? That's a different story.
Of course, the better solution there might be antitrust rather than common carriage requirements, but something's got to give.
That's just ridiculous. If everyone in town is allowed to send telegrams except for the one gay couple, is their speech not being suppressed?
I don't mean in the legal US sense of the legal right to free speech, I mean the actual speech itself. If most people can speak but you cannot, and completely absent any question of rights and legality, how is that not suppression?
Well, if YT is suppressing a user's video _because of their sexual orientation_, then yes, it would be.
If you have the option to send a letter, then your speech is not being suppressed. And if the telegram company is being considered a common carrier, your speech will not be suppressed.
All of these things (protected classes, common carriers, etc.) have already been considered.
Reverse it. Why do -I-, a private citizen or company, have an obligation to amplify your speech for you, often without compensation?
You don't have an obligation not to suppress my speech. However, when you do choose to suppress my speech, you are, in fact, suppressing my speech.
I'm not asking you, or YouTube, to stop suppressing speech. I'm objecting to the weasel-words. When you apply a special case to a user to reduce the reach of their content, that's targeted suppression. Suppression can be good! I'm grateful that YouTube suppresses spam and violence, but I'm not going to call it some newspeak term like unamplification.
I'm not sure why adding the reason of sexual orientation changes speech from being not-amplified to suppressed. Both cases are suppression. A fire suppression system doesn't turn into a fire unamplification system when it's used on the homes of heterosexuals.
But the thing is, ultimately, that your speech does not need a platform, let alone a specific platform, to be speech.
"I can't speak freely because Platform A won't carry it" isn't a thing when Platforms B through ZZZ exist. And if B through ZZZ have less reach, well, so be it.
Why shouldn’t Nintendo have an official YouTube mandated account for takedowns? Is there a legal requirement that they don’t validate the rights holder?
That exists, it's called a DMCA 512 counternotice; if you're particularly monied you can even sue under 512(f) for perjury. The problem is that the videos are actually infringing, but the owner of the content does not want to sue.
Under very basic principles of law, only the owner or exclusive licensee of a copyright has standing to sue for copyright infringement. Furthermore, copyright law does not obligate copyright owners sue or license like trademark does. Therefore, for uses which are inconvenient[0] to sell a license for, but not damaging enough to go to court, copyright owners will often tacitly permit the use by simply failing to enforce their rights.
The problem is that courts have a very high bar to recognize tacit permission as a license. It's not impossible; there are some famous examples of 'implied license', but no competent lawyer would actually recommend you go to court and claim such a thing. One particular complication would be that if, say, you sued Fake Nintendo, and claimed fair use as a rationale for using Real Nintendo's content, Real Nintendo might want to actually sue you just to kill the fair use claim[1].
Just as an example of how complicated tacit permission can get:
Bungie's Destiny 2 is a perpetually updated "live service" game with an ongoing policy of removing content to keep download sizes reasonable[2]. As a result, there is music in the game that is no longer accessible. Bungie does not want people uploading the game soundtrack to YouTube, but they also don't want to turn that removed music into lost media, so they had a policy of not taking down "music archivists" that only uploaded the removed content.
One of the YouTubers that got taken down for reuploading live Destiny 2 music got pissed about it and started filing fraudulent DMCA takedowns in Bungie's name to music archivists. Bungie tried to get in contact with YouTube to have the fraudulent takedowns removed, but it took over a week of PR damage to everyone involved (and, if I remember, actually suing the idiot kid that did this) before YouTube would restore the videos.
If there is one thing that is badly drafted (and not just irritating) about the current DMCA 512 system, it's that there is no procedure for third-party counter-claimants to challenge fraudulent or mistaken claims. However, the current mechanisms of copyright make that impossible to provide. There is no database of who-owns-what and who-licensed-what; rights owners do not want such a database to exist; and it is entirely possible for multiple parties to have standing to sue the same person for the same act of infringement on the same work. Under regular copyright law, if Nintendo wants to sue you for, say, using the officially-licensed Mario DLC in your Minecraft streams, Microsoft can't intervene and stop them on the basis that they own Minecraft. How, exactly, should YouTube proceed if they have two parties swearing under oath conflicting information, and not obeying the right one puts you on the hook for billions of dollars in copyright liabilities? The current system is designed to make it easy to cheaply operate social media, not to actually be fair to its users or to stop online censorship.
[0] Reasons for this inconvenience can include:
- The transaction cost of negotiating a watertight contract for a very small deal. Generally speaking you don't want to make deals with understandable / 'plain language' licensing terms for the same reason why web browsers don't have an API to load unsigned arbitrary kernel modules from third-party servers.
- The licensing in question being contrary to exclusive licensing arrangements with other companies - though exclusive licensing contracts can also mandate the licensor or licensee enforce each other's rights to prevent this sort of thing
[1] In general, common law mechanisms like fair use create an incentive to sue, which is a very bad thing for people who don't like getting sued.
[2] This is a terrible policy, but the policies of console manufacturers require you to ship games as packages, so you couldn't just stream in assets as needed.
Yep. Really very sick of these content platforms throwing up their hands and waving all responsibility on everything. We would never entertain newspapers violating copyright or fake news bullshit.
If they really wanted to solve it, here's an idea: if you get a takedown notice you also get a button that says "I am sure my content does not infringe copyright and I'm willing to go to court for it". YouTube reinstates your content and, if the entity with the claim disagrees, they can take you personally to court. Is this good? No, but that's on the DMCA. Is it better than now, when you have no recourse? I'd say yes.