How YouTube Can Fix Itself

[JSRevenge]

I thought I remembered a court case putting responsibility on copyright holders to consider fair use before issuing a DMCA notice, so I Googled "supreme court fair use cases" and found this:

http://fairuse.stanford.edu/overview/fair-use/cases/


Consider Fair Use Before Requesting DMCA Takedown
In September, 2015, the Ninth Circuit held that before a copyright owner issues a DMCA notice, the owner must make a ?subjective good faith? analysis regarding fair use. An owner who neglects to make this far use analysis is liable for damages for copyright misrepresentation under 17 USC ? 512(f). The case involved a long-running dispute over the use of a Prince song in a YouTube video featuring a dancing baby. In making this ruling, the Ninth Circuit acknowledged that for the purposes of the DMCA, ?fair use is uniquely situated in copyright law so as to be treated differently than traditional affirmative defenses.? (Lenz v. Universal Music Corp., No. 13-606, 09/14/2015 (9th Cir. 2015. ).)


Does anyone know if this changed YouTube's policy in any effective way, or if this case can negate some of the reflexive comments in this thread?

 

[Albino Boo]

Thanks for posting this.

The second paragraph seems to give Youtube the room to not make automatic takedowns or content IDs of videos when those notifications are done by an automated system because an automated system wouldn't (and clearly doesn't) adequately account for things like fair use.

Giving youtubers the warning and requiring a response or elective removal of the automatically flagged video within 48 hours (or whatever) seems like it would be within this law. If the copyright claimant elevates the claim from there then it could be removed. It adds an extra buffer of protection so their videos only get removed when the copyright claimant actually thinks they can defend the removal rather.

I thought I remembered a court case putting responsibility on copyright holders to consider fair use before issuing a DMCA notice, so I Googled "supreme court fair use cases" and found this:

http://fairuse.stanford.edu/overview/fair-use/cases/


Consider Fair Use Before Requesting DMCA Takedown
In September, 2015, the Ninth Circuit held that before a copyright owner issues a DMCA notice, the owner must make a ?subjective good faith? analysis regarding fair use. An owner who neglects to make this far use analysis is liable for damages for copyright misrepresentation under 17 USC ? 512(f). The case involved a long-running dispute over the use of a Prince song in a YouTube video featuring a dancing baby. In making this ruling, the Ninth Circuit acknowledged that for the purposes of the DMCA, ?fair use is uniquely situated in copyright law so as to be treated differently than traditional affirmative defenses.? (Lenz v. Universal Music Corp., No. 13-606, 09/14/2015 (9th Cir. 2015. ).)


Does anyone know if this changed YouTube's policy in any effective way, or if this case can negate some of the reflexive comments in this thread?

You are both missing the point. Youtube has to show that it is responsive to copyright claims. When a claim is made to youtube by the copyright holder they are not using the courts. This claim is the first step before going to court. Youtube has two choices to accept the claim or not. If Youtube does not accept the claim it has to demonstrate legal reasons to do so. That's means a lawyer has to look at each claim and consider the legality of each claim. That isnt cheap, even more so on platform that currently breaks even. What Youtube does currently is to pay the money to the claimant until the uploader provides evidence that the copyright claim is wrong. That way they don't have pay a bunch of lawyers. Fair use clauses does not change the onus on youtube to demonstrate that it is obeying copyright law, its has to prove that each claim is fair use.

 

[shirkbot]

The best way to change it is not to protest YouTube, but to contact your elected legislators and ask them to bring the DMCA in line with current technology.

Why not do both? Youtube is partially allowed to act with impunity because it has little meaningful competition. That's not to say their competition wouldn't eventually run into the same issues, but then they could both lobby the government for revisions. We should absolutely contact our representatives in the meantime, but it's much easier to motivate legislation with active corporate lobbying/backing than without.

Click the Spoiler for Angsty Ranting!

Spoiler

I have actually written to my representatives in the past and can tell you from experience that the only responses I've ever gotten were glib form letters, a boatload of spam while they continue to ignore the input of my portion of their constituency. I didn't vote for them and they stand a >80% chance of being retained every election because of a broken voting system, so why should they care what I, or those like me, think? Short of the kind of mass uprising associated with the FCC Net Neutrality debate, or Youtube lobbying for changes, they do not care and have no incentive to care.[/rant]

 

[shirkbot]

You are both missing the point. Youtube has to show that it is responsive to copyright claims. When a claim is made to youtube by the copyright holder they are not using the courts. This claim is the first step before going to court. Youtube has two choices to accept the claim or not. If Youtube does not accept the claim it has to demonstrate legal reasons to do so. That's means a lawyer has to look at each claim and consider the legality of each claim. That isnt cheap, even more so on platform that currently breaks even. What Youtube does currently is to pay the money to the claimant until the uploader provides evidence that the copyright claim is wrong. That way they don't have pay a bunch of lawyers. Fair use clauses does not change the onus on youtube to demonstrate that it is obeying copyright law, its has to prove that each claim is fair use.

I'm sorry if this is overly ignorant, but could Youtube just pull the video entirely or remove monitization for the duration of the conflict? The end result for the creator is sadly unchanged, but it would at least remove the financial incentive for spurious claims and it seems like it would show the requisite responsiveness to copyright claims to maintain their safe harbor status. Or would that still require a lawyer?

 

[K12]

snip

You are both missing the point. Youtube has to show that it is responsive to copyright claims. When a claim is made to youtube by the copyright holder they are not using the courts. This claim is the first step before going to court. Youtube has two choices to accept the claim or not. If Youtube does not accept the claim it has to demonstrate legal reasons to do so. That's means a lawyer has to look at each claim and consider the legality of each claim. That isnt cheap, even more so on platform that currently breaks even. What Youtube does currently is to pay the money to the claimant until the uploader provides evidence that the copyright claim is wrong. That way they don't have pay a bunch of lawyers. Fair use clauses does not change the onus on youtube to demonstrate that it is obeying copyright law, its has to prove that each claim is fair use.

I understand the point you're making: Youtube has developed the cheapest system possible to make sure they avoid legal problems with copyright holders.

The point I'm making is: That system is shit and unfair and probably not in Youtube's long term interest.

"It's in my best interest" isn't a defense for acting like a dick, so I'm going to continue criticising Youtube for their terrible system.

Maybe the law restricts Youtube so that it HAS to be this shit but looking at the wording of it I don't think that's the case (I'm not a lawyer so I could easily be wrong). A lot of things in the law seem inadequate in the internet age so maybe it is this terrible. Why shouldn't we expect Youtube to be at the forefront of modernising the law since it's so relevant to them?

Does Youtube really have to arbitrarily and immediately accept all claims without letting the accused infringers respond? Does Youtube really need to allow scammers to steal 2 weeks worth of ad revenue from any video with no hope of getting it back? [bearing in mind the guy from Miracle of Sound has had content IDs for his own original songs so fucking nothing is safe]

 

[Albino Boo]

You are both missing the point. Youtube has to show that it is responsive to copyright claims. When a claim is made to youtube by the copyright holder they are not using the courts. This claim is the first step before going to court. Youtube has two choices to accept the claim or not. If Youtube does not accept the claim it has to demonstrate legal reasons to do so. That's means a lawyer has to look at each claim and consider the legality of each claim. That isnt cheap, even more so on platform that currently breaks even. What Youtube does currently is to pay the money to the claimant until the uploader provides evidence that the copyright claim is wrong. That way they don't have pay a bunch of lawyers. Fair use clauses does not change the onus on youtube to demonstrate that it is obeying copyright law, its has to prove that each claim is fair use.

I'm sorry if this is overly ignorant, but could Youtube just pull the video entirely or remove monitization for the duration of the conflict? The end result for the creator is sadly unchanged, but it would at least remove the financial incentive for spurious claims and it seems like it would show the requisite responsiveness to copyright claims to maintain their safe harbor status. Or would that still require a lawyer?

To do anything other pay the money to the claimant that would be disputing the claim. If a Comcast claims you owe it $1000, it doesn't care what you do with the $1000. Comcast is only interested in getting the money that it feels it is legally entitled to. If you dont pay them, then its see you in court.

snip

You are both missing the point. Youtube has to show that it is responsive to copyright claims. When a claim is made to youtube by the copyright holder they are not using the courts. This claim is the first step before going to court. Youtube has two choices to accept the claim or not. If Youtube does not accept the claim it has to demonstrate legal reasons to do so. That's means a lawyer has to look at each claim and consider the legality of each claim. That isnt cheap, even more so on platform that currently breaks even. What Youtube does currently is to pay the money to the claimant until the uploader provides evidence that the copyright claim is wrong. That way they don't have pay a bunch of lawyers. Fair use clauses does not change the onus on youtube to demonstrate that it is obeying copyright law, its has to prove that each claim is fair use.

I understand the point you're making: Youtube has developed the cheapest system possible to make sure they avoid legal problems with copyright holders.

The point I'm making is: That system is shit and unfair and probably not in Youtube's long term interest.

"It's in my best interest" isn't a defense for acting like a dick, so I'm going to continue criticising Youtube for their terrible system.

Maybe the law restricts Youtube so that it HAS to be this shit but looking at the wording of it I don't think that's the case (I'm not a lawyer so I could easily be wrong). A lot of things in the law seem inadequate in the internet age so maybe it is this terrible. Why shouldn't we expect Youtube to be at the forefront of modernising the law since it's so relevant to them?

Does Youtube really have to arbitrarily and immediately accept all claims without letting the accused infringers respond? Does Youtube really need to allow scammers to steal 2 weeks worth of ad revenue from any video with no hope of getting it back? [bearing in mind the guy from Miracle of Sound has had content IDs for his own original songs so fucking nothing is safe]

So let me get this straight, giving access to a global distribution platform for free and paying you an income isn't enough. Youtube has to provide the same level of a legal services as a major TV network or film studio for free as well. If you want a gold plated service you have to pay for it, either though an upfront fee or reduced payments for views.

There is nothing arbitrary about obeying the law in a manner that minimises your company's liabilities. The whole point of running a business is to make money. You dont add a massive increase to your overhead for no gain. How long do you think the current management of google will last if they tell the shareholders, that actually own the company, we have just turned a break even subsidiary into a loss making one and risking massive lawsuits with multi billion dollar companies.

 

[hentropy]

So I take it simply creating an alternative (putting aside how difficult it might be to organize something and get people to move to it) would not really fix the underlying problem here?

I've had an idea of an alternative, one that is more focused and is not a "post whatever you want" free-for-all. Let's just call it ReviewTube. One that had an actual staff that screens submitted videos to make sure they fit the format. Something more focused on reviews with copyrighted content in them might be smaller and more able to fend off this system more effectively.

We all know that, even if Congress wasn't bought by copyright interests, that it probably wouldn't be made a major priority any time soon. And simply boycotting Youtube doesn't do anything if there is no alternative that has to play by different rules.

I guess you could go foreign, that might at least stop the frivolous claims, even if it may not protect actual copyright offenders?

 

[Mistwraithe]

To do anything other pay the money to the claimant that would be disputing the claim. If a Comcast claims you owe it $1000, it doesn't care what you do with the $1000. Comcast is only interested in getting the money that it feels it is legally entitled to. If you dont pay them, then its see you in court.

That isn't what the Treatise34 extract above says. It merely says that the service provider must "expeditiously remove or block access to the allegedly-infringing material". Can you point to a part of the DMCA or related law which says that the service provider has to assist with monetizing the content for the claimant going forward in time from the date of the claim?

 

[Albino Boo]

To do anything other pay the money to the claimant that would be disputing the claim. If a Comcast claims you owe it $1000, it doesn't care what you do with the $1000. Comcast is only interested in getting the money that it feels it is legally entitled to. If you dont pay them, then its see you in court.

That isn't what the Treatise34 extract above says. It merely says that the service provider must "expeditiously remove or block access to the allegedly-infringing material". Can you point to a part of the DMCA or related law which says that the service provider has to assist with monetizing the content for the claimant going forward in time from the date of the claim?

If someones else is paid or due to be paid for the use copyrighted IPs and then the copyright holder makes the claim then the money is legally due to the copyright holder. So Youtube by entering into contract to pay the uploader is legally bound to pay the copyright holder.
If Youtube does not pay the claimant without disputing the copyright claim then a standard civil debt recovery case will get a court order to pay the claimant. The only way to stop a judgment in favor of the claimant is present evidence that its fair use or the claimant does not hold the copyright. That takes lawyers and money. In addition by forcing claimants to go to court for each and every claim as a debt recovery means that Youtube is costing copyright holders money to recover payments that are rightfully theirs. This means Youtube could be sued as unresponsive to to copyright claims and/or a criminal investigation. I strongly suggest that you stop listening to internet legal experts because they dont what the hell they are talking about.

 

[TrulyBritish]

To do anything other pay the money to the claimant that would be disputing the claim. If a Comcast claims you owe it $1000, it doesn't care what you do with the $1000. Comcast is only interested in getting the money that it feels it is legally entitled to. If you dont pay them, then its see you in court.

That isn't what the Treatise34 extract above says. It merely says that the service provider must "expeditiously remove or block access to the allegedly-infringing material". Can you point to a part of the DMCA or related law which says that the service provider has to assist with monetizing the content for the claimant going forward in time from the date of the claim?

If someones else is paid or due to be paid for the use copyrighted IPs and then the copyright holder makes the claim then the money is legally due to the copyright holder. So Youtube by entering into contract to pay the uploader is legally bound to pay the copyright holder.
If Youtube does not pay the claimant without disputing the copyright claim then a standard civil debt recovery case will get a court order to pay the claimant. The only way to stop a judgment in favor of the claimant is present evidence that its fair use or the claimant does not hold the copyright. That takes lawyers and money. In addition by forcing claimants to go to court for each and every claim as a debt recovery means that Youtube is costing copyright holders money to recover payments that are rightfully theirs. This means Youtube could be sued as unresponsive to to copyright claims and/or a criminal investigation. I strongly suggest that you stop listening to internet legal experts because they dont what the hell they are talking about.

I'm no legal expert or anything, but doesn't this all assume that the claim is valid? If the claim is valid then yes Comcast should get the money but the whole furore is over the fact that they still get the money even when the claim is either plain wrong or potentially spurious. Google already has a system in place to claim/counter claim without automatically going to court and it's not like people are proposing the money should always go to the defendant, just that it should be put into a separate account until it's been settled. Hell, by the sounds of it the main reason the claims can last about a month is because the claimant has that much time before they can escalate it and there's a financial incentive to let the claim linger.
Although, in your opinion, is there a reason why content creators couldn't take a lawsuit to Google over Fair Use laws? Seems like you have some know how in how this works.

 

[Saelune]

SNIP

What is legal is not always what is right. Though it does show what I already figured, that things probably wont get better until someone balls/pays up and makes it a court issue. Someone eventually buckles just before it does, so it stays out of court. Its just a matter of either someone being a legal martyr, a big enough shot fronting the bill and effort, or a lot of youtubers to directly unite to fight it.

 

[Albino Boo]

I'm no legal expert or anything, but doesn't this all assume that the claim is valid? If the claim is valid then yes Comcast should get the money but the whole furore is over the fact that they still get the money even when the claim is either plain wrong or potentially spurious. Google already has a system in place to claim/counter claim without automatically going to court and it's not like people are proposing the money should always go to the defendant, just that it should be put into a separate account until it's been settled. Hell, by the sounds of it the main reason the claims can last about a month is because the claimant has that much time before they can escalate it and there's a financial incentive to let the claim linger.
Although, in your opinion, is there a reason why content creators couldn't take a lawsuit to Google over Fair Use laws? Seems like you have some know how in how this works.

The system is designed so at no point does google assume liability for deciding who is the rights holder. When something is uploaded, google automatically assumes that the uploader is the rights holder. When google receives a claim to those rights from a 3rd party it automatically assumes that the claim is true and passes on the details of the claim to the uploader. The uploader has full access to all legal remedies with the claimant. At no point is google the rights holder or makes any investigation to who is the rights holder. No claim against google is under fair use or otherwise because google is merely acting as host, the only dispute is between 3rd parties. As I said before the onus is on google to demonstrate in fair and reasonable manner that copyrighted IPs are not been shown on its platform. The only way that google cannot pay the claimant is to take liability and provide legally admissible evidence that the claim isn't valid. That costs money and risk not only the particular lawsuit but losing safe harbour status and a multi billion law suit.

 

[K12]

snip

So let me get this straight, giving access to a global distribution platform for free and paying you an income isn't enough. Youtube has to provide the same level of a legal services as a major TV network or film studio for free as well. If you want a gold plated service you have to pay for it, either though an upfront fee or reduced payments for views.

There is nothing arbitrary about obeying the law in a manner that minimises your company's liabilities. The whole point of running a business is to make money. You dont add a massive increase to your overhead for no gain. How long do you think the current management of google will last if they tell the shareholders, that actually own the company, we have just turned a break even subsidiary into a loss making one and risking massive lawsuits with multi billion dollar companies.

I was wondering how long it would take for the "companies exist to make money" and "you should be grateful for what you're getting" arguments came up.

Part of the point that I and the original article have made is that having a better system than the current one would be in Youtube's interests too. Protecting Youtube content creators and allowing them to more viably make a living from their content would safeguard Youtubes internet presence for the future.

It's also worth mentioning that if it's ok for Youtube to be selfish and not care about its uploaders then it's just as acceptable for me to not give a shit about their shareholders and complain purely from self-interest. I want the people I follow on Youtube to keep doing what they're doing and Youtube's policies are making that difficult.

You didn't answer some of the questions I posed before. Does the law require Yotube to immediately and uncritically accept every copyright claim no matter what and does it require Youtube to make the stolen ad revenue impossible to get back or pay an army of lawyers to pour over every single claim that gets made? If I, for example, file a copyright claim on all of Justin Bieber's music videos then would Youtube's only option be to allow me to permanently steal 2 weeks worth of add revenue? It's certainly a tempting proposition.

 

[Albino Boo]

snip

So let me get this straight, giving access to a global distribution platform for free and paying you an income isn't enough. Youtube has to provide the same level of a legal services as a major TV network or film studio for free as well. If you want a gold plated service you have to pay for it, either though an upfront fee or reduced payments for views.

There is nothing arbitrary about obeying the law in a manner that minimises your company's liabilities. The whole point of running a business is to make money. You dont add a massive increase to your overhead for no gain. How long do you think the current management of google will last if they tell the shareholders, that actually own the company, we have just turned a break even subsidiary into a loss making one and risking massive lawsuits with multi billion dollar companies.

I was wondering how long it would take for the "companies exist to make money" and "you should be grateful for what you're getting" arguments came up.

Part of the point that I and the original article have made is that having a better system than the current one would be in Youtube's interests too. Protecting Youtube content creators and allowing them to more viably make a living from their content would safeguard Youtubes internet presence for the future.

It's also worth mentioning that if it's ok for Youtube to be selfish and not care about its uploaders then it's just as acceptable for me to not give a shit about their shareholders and complain purely from self-interest. I want the people I follow on Youtube to keep doing what they're doing and Youtube's policies are making that difficult.

You didn't answer some of the questions I posed before. Does the law require Yotube to immediately and uncritically accept every copyright claim no matter what and does it require Youtube to make the stolen ad revenue impossible to get back or pay an army of lawyers to pour over every single claim that gets made? If I, for example, file a copyright claim on all of Justin Bieber's music videos then would Youtube's only option be to allow me to permanently steal 2 weeks worth of add revenue? It's certainly a tempting proposition.

Oh for godsake it's not in Youtube's best interest to go bankrupt through legal fees If you think there is magic wand to be waved that somehow will ignore the law then go ahead put your money where you mouth is and set up your own company. Word of warning if lawyers that get paid $1000 an hour can't do it and I'm not sure you internet expertise will stand you much stead when the FBI comes around with warrant.

 

[CrystalShadow]

2. More transparency and clarity when flagging content.

Many media companies hire outside firms to act as their IP guard dogs. So when I get a message saying that I've infringed on content from "Rando Media LTD", I don't have a clear indication of who they are, who they represent, or what they claim they own. Maybe Rando is a legitimate firm representing Disney, and I should take them seriously. Or maybe Rando is two teenagers sharing an apartment in Shanghai. If it's Disney and my video features (say) a Marvel game, then I need to defend on the grounds of fair use. If it's just a couple of trolls, then I need to respond that their claim is fraudulent.

If the company claiming copyright went to court you would not receive any additional information. Its up to you as the defendant to present evidence that that plaintiff is not the owner of the copyright. If youtube were to ask for additional information, they take on the risk that that Youtube, by asking for additional information to what the court asks for, is behaving in unfair and unreasonable way in an attempt to deny copyright infringements.

Most of what you've said is pretty disturbing (regardless of how true it may or may not be), but this is blatantly messed up.
If courts operate that way, then the system is definitely broken.

It should be obvious, that if I walk into your house, grab your car keys, drive off with your car, and then claim it was actually my car and you stole it from me, I shouldn't be allowed to claim something like that without providing some kind of evidence of this being true.

Or, for that matter, if I borrow my neighbour's TV, and you run off with it, claiming it's actually yours, it's unreasonable not to expect proof that you aren't just making stuff up.

That's clearly fraud, and it seems nuts that a legal system would be complicit in allowing fraud by not putting any kind of burden of proof on the person making such a claim.

 

[CrystalShadow]

You can read the law itself on takedowns and put-backs here: http://digital-law-online.info/lpdi1.0/treatise34.html, which says in part (bolding for emphasis is mine),

Once a service provider wanting to avail itself of the safe harbors of 512(b) (system caching), 512(c) (information residing on systems or networks at the direction of users), or 512(d) (information location tools) knows that its system has infringing material, that service provider must expeditiously remove or block access to the allegedly-infringing material. That knowledge can come from a proper notice from the copyright owner, or when the service provider is aware of facts or circumstances from which infringing activity is apparent. It is not necessary for a service provider to police its users, or guess that something may be an infringement.

Sometimes, a notice from a copyright owner falls short of the requirements for a proper notice. That notice does not give the service provider either actual knowledge of the infringement or awareness of facts or circumstances that suggest infringement.
A notification from a copyright owner or from a person authorized to act on behalf of the copyright owner that fails to comply substantially with the provisions of subparagraph (A) shall not be considered under paragraph (1)(A) in determining whether a service provider has actual knowledge or is aware of facts or circumstances from which infringing activity is apparent. {FN89: 17 U.S.C. ?512(c)(3)(B)(i)}

If that were not the rule, then it could be argued that any notification, no matter how insubstantial, would provide knowledge to the service provider of the alleged infringement and require takedown to remain in the safe harbor, thereby gutting the notice requirements. However, a service provider cannot just ignore a faulty notice.

In a case in which the notification that is provided to the service provider?s designated agent fails to comply substantially with all the provisions of subparagraph (A) but substantially complies with clauses (ii), (iii), and (iv) of subparagraph (A), clause (i) of this subparagraph applies only if the service provider promptly attempts to contact the person making the notification or takes other reasonable steps to assist in the receipt of notification that substantially complies with all the provisions of subparagraph (A). {FN90: 17 U.S.C. ?512(c)(3)(B)(ii)}

There's also the EFF's page on DMCA, found here: https://www.eff.org/issues/dmca

It says, in part,

The DMCA ?safe harbors? protect service providers from monetary liability based on the allegedly infringing activities of third parties. To receive these protections service providers must comply with the conditions set forth in Section 512 including ?notice and takedown? procedures that give copyright holders a quick and easy way to disable access to allegedly infringing content. Section 512 also contains provisions allowing users to challenge improper takedowns. Without these protections the risk of potential copyright liability would prevent many online intermediaries from providing services such as hosting and transmitting user-generated content. Thus the safe harbors, while imperfect, have been essential to the growth of the Internet as an engine for innovation and free expression.

Doesn't this also imply that -
1. Youtube is under no obligation to pro-actively try and determine whether something is copyright infringement or not? (Eg. Content ID isn't legally nessesary for them to be doing),
2. They can ignore claims of copyright infringement by a copyright holder unless they provided the correct details about the claim (whatever that is in a legal sense.), and anything less than that doesn't count as them having any awareness of a claim having been made.

Since content ID is a very major part of what makes youtube especially unfair, it seems odd that they would do something they aren't even remotely obligated to.
While they must provide an easy way to take down what someone has told them infringes copyright, they have no obligation to pro-actively go looking for material that potentially violates copyright...

Or am I missing something here? Legal language is often full of weird barely comprehensible nonsense anyway, so there's always the possibility that I'm misreading this, but from what I'm seeing here, youtube is doing way more than it is under any obligation to do...

 

[ffronw]

Doesn't this also imply that -
1. Youtube is under no obligation to pro-actively try and determine whether something is copyright infringement or not? (Eg. Content ID isn't legally nessesary for them to be doing),
2. They can ignore claims of copyright infringement by a copyright holder unless they provided the correct details about the claim (whatever that is in a legal sense.), and anything less than that doesn't count as them having any awareness of a claim having been made.

Since content ID is a very major part of what makes youtube especially unfair, it seems odd that they would do something they aren't even remotely obligated to.
While they must provide an easy way to take down what someone has told them infringes copyright, they have no obligation to pro-actively go looking for material that potentially violates copyright...

Or am I missing something here? Legal language is often full of weird barely comprehensible nonsense anyway, so there's always the possibility that I'm misreading this, but from what I'm seeing here, youtube is doing way more than it is under any obligation to do...

My belief (and of course I'm an editor, not a lawyer) is that they are not necessarily under an obligation to be doing content ID. However, I also believe that YouTube does so to mitigate the sheer number of claims that they would have to deal with were such a system not in place. It's more cost-effective for them to run a system like content ID that is a slight step further than DMCA requires than to have numerous additional people on staff to handle DMCA. As [user]Albino Boo[/user] has mentioned, lawyers can be expensive, and YouTube is already struggling just to break even. They're cutting costs wherever they can.

As to your second point, the law expressly states that you cannot ignore an incorrect claim.

However, a service provider cannot just ignore a faulty notice.

In a case in which the notification that is provided to the service provider's designated agent fails to comply substantially with all the provisions of subparagraph (A) but substantially complies with clauses (ii), (iii), and (iv) of subparagraph (A), clause (i) of this subparagraph applies only if the service provider promptly attempts to contact the person making the notification or takes other reasonable steps to assist in the receipt of notification that substantially complies with all the provisions of subparagraph (A).

As you can see, the law says that in the case of a notice that is faulty, YouTube (Or whatever website) still needs to promptly contact the claimant and assist them in delivering a compliant notice in order to comply with the safe harbor provisions. Just because the notice is incorrect doesn't put you in the clear.

The layman's version of DMCA has always held that you don't have to actively look for infringing material as long as you promptly deal with it when you are notified. In the case of Content ID, it's likely that YouTube has implemented that system because it persuades large corporations to allow their content onto the site, since YouTube is demonstrating a willingness to protect their IPs (and to give the rights holder the tools to assist in doing so). Again, that's just a guess, but I feel like it's probably at least partially accurate.

 

[K12]

snip

Oh for godsake it's not in Youtube's best interest to go bankrupt through legal fees If you think there is magic wand to be waved that somehow will ignore the law then go ahead put your money where you mouth is and set up your own company. Word of warning if lawyers that get paid $1000 an hour can't do it and I'm not sure you internet expertise will stand you much stead when the FBI comes around with warrant.

And we've got a "I'd like to see you do better" argument now as well. We really are scraping the bottom of that argument barrel nice and hard aren't we. You still aren't answering the questions I'm putting forward either, by the way, but I'm not going to ask them again now.

I'm not sure if your position is that Youtube's system is already perfect (which is quite obviously false) or if you think that poor old Youtube are completely powerless to do anything other than what they're doing and we should stop being such meanies and give the poor guys a break (since you've equated any criticism with an argument that Youtube should be hiring a million lawyers on behalf of content creators, a position I have never taken) but I don't accept either case.

I don't accept your interpretation that the law leaves Youtube with only the choice to act as they are or bankrupt themselves with lawyer fees. I also don't take the law as being eternal and unchangable (if Disney can keep changing copyright law to keep the rights to Mickey Mouse then Youtube could fight to make sure it's uploaders aren't all guilty until proven innocent without evidence or recourse). Perhaps the only solution is for youtubers to use crowdfunding and have ad free channels and Youtube can just live with that lost revenue.

I'm willing to leave this as a parting thought since any likely response will probably just restate the "but expensive lawyers and stuff" point yet again.

 

[Infernal Lawyer]

Snip

So basically the main problem is that the law doesn't accept "We hear you, you can have the money when we confirm your claim". You're either fully complying with a claim, or standing in their way.

This still doesn't explain two things:

1. Why Youtube doesn't ask for the money back when it's proven that the claim is fraudulent, or when there is no follow-up to a counter-claim. Even if they have to take any claim at face value, is the law really so inherently broken that they can't demand it back? Because really, using the same "guilty until proven innocent" attitude on claiments who don't respond to counter-claims would pretty much solve this.

2. Why Youtube can't just say "hey, we can't do anything until the law is changed" if it's apparently so bloody obvious to lawyers but nobody else. It would get people off their back and onto doing something more productive, like trying to actually change the law.