Hacker News Reader

Comment by TipVFL | Hacker News Reader

I used a song, with permission from the artist, on a demo reel and got a copyright claim on YouTube. I was surprised to find that the claim was on behalf of a French band who covered the song and added lyrics to it. I tried to dispute the claim, but there was no option or possible way to indicate that their match wasn't correct, you could only dispute whether or not you had a license to the track they matched.

In the end I just gave up, and let some French band monetize my video that contained a song written and recorded by my friend's dad. Enjoy the 25 cents you earned!

View on HN

That's no longer the case. I post a bunch of game playthrough vids and there are a lot of options to contest claims like that now.

I had a recent one where the sound effect from a game released in the 1990s was claimed as being part of a song released in 2015.

I had a similar thing happen with gameplay videos containing wind noise. The videos were uploaded in 2014, but I get copyright claims from a song that was released in 2017. This seems like a major oversight in Content ID, it should force the claimant to provide a release date for the song and exclude videos that were uploaded before that date.

> This seems like a major oversight in Content ID, it should force the claimant to provide a release date for the song and exclude videos that were uploaded before that date.

The major oversight rather lies in the fact that the law does not introduce huge penalties/indemnification for false copyright claims - if these existed, copyright holders would be a lot more cautious with potentially false claims.

The law does in the form of perjury charges for false DMCA claims; content ID is intentionally operates outside the DMCA legal framework.

The perjury coverage is weak, but they at least provide something.

EDIT: Perjury comes into play as part of a permanent takedown request, not the initial temporary takedown request. Just a clarification.

The perjury charges are in respect to the claim that you are authorized to enforce the copyrights on the work you claim is being infringed.

If you own the rights to a 2013 advertising jingle for yo-yo wax, and you assert that you own the rights to it while making a DMCA takedown claim against a birthday party video posted in 2010, there is no perjury. The claim that the work is infringing is not the part covered by the perjury threat.

This is why the DMCA is broken. There is no reason whatsoever for legitimate copyright holders to avoid making frivolous claims, and the burden lies entirely on their victims to prove their innocence.

(I am not a lawyer. I might be wrong about this. Don't mistake this comment for legal advice.)

The perjury claims come into play with the permanent takedown. There's no burden of proof on the initial takedown, as there is no burden of proof for the request to have it put back up. It's after those two steps that the takedown can become permanent, which is where the legalities and associated penalties come into play, and where the claim can go to court.

As I said, weak, but it's there.

Wouldn't even that go away if the claimant had a legitimate reason to believe the subject was infringing? ...maybe if an automated matching algorithm flagged it as such?

If the algorithm returns false positives more than 5% of the time, does the claimant truly have a legitimate reason for such a belief?

Yes. Which is why it only prevents false claims (the original concern), and why I label it as a weak protection. Of course, it's also only really going to come into play during the lawsuit phase of the notice and takedown process, a process unlikely to be automated.

IANAL, of course.

You should make a copyright claim against the song that was released in 2017 because they clearly sampled your work without permission and without payment.

This is exactly what I was going to say -- but it is worse! Since they (2017 song) already claim a violation, they are essentially admitting to a violation (except, on themselves!)

I would actually consider doing this if I were in the same position. You'd have to wonder what the consequences were, considering that by filing a claim against someone you are establishing that you believe there to be a violation. If the claimant then is shown to have the newer work by several years, I wonder how such a claim would be taken?

DMCA would be establishing that you believe there to be a violation, but ContentID is just automated matching YouTube does on the behalf of artists - so no such claim exists.

surely, by enrolling to have ContentID match a work which you claim is yours against others, you are initiating the chain of events which leads to the automated claim of infringement being made? This implies (to me) that you are the one making the claim?

That's exactly what I was thinking: by making the claim they've admitted that both the number and your video are using the same music. Only you have proof that your video existed first, ergo they stole your work :)

LOL! I thought that too, but I do not own the copyright on the game or the sound effect.

Is it valid for a game author to claim a copyright on something like the game's music in a playthrough though? Or is that fair use?

I think arguably, both options are correct.

It is probably valid for a game publisher to claim copyright on the game's music--assuming they created it for the game [as opposed to licensing it].

I also believe that a playthrough video probably counts as fair use in most cases.

Nintendo is known for having a 'bad' reputation with playthrough videos on YouTube.

You mean to claim infringement. Nobody has to claim copyright because you automatically get it when creating a work. Fair use relates to what is infringing and what isn't, it doesn't make a work any "less copyrighted".

Since there appears to be no consequences to making a false or misleading claim, and although I wouldn't call it a solution, one course of action would be to make a claim against their song.

Kick 'em where it hurts.

The cover band's claim that they were acting in good faith would likely hold more water. Not sure if you want to be playing games with the law like that.

Meh, it's not a major indictable: no one's going to gaol for misusing a copyright claim system.

Anyway, as others have noted, I believe you agree to an arbitration clause when you sign up. Lawyers aren't likely to get involved, you'll just get kicked off when a human works out you're abusing the terms and conditions.

(I didn't down vote you)

> The cover band's claim that they were acting in good faith would likely hold more water.

This claim of the cover band can only hold water if they made strong investigations to ensure to their best that the creater of the video did not have a permission of the original copright holder of the song that they covered.

> Not sure if you want to be playing games with the law like that.

There's no law involved here. "Infringement" in this context relates to a term defined in YouTube's TOS with regards to the ContentID take-down service provided to the big right-holders industry. Not the legal sense of "copyright infringement", because nobody is making a copyright infringement claim in this whole story.

The entire ContentID take-down service is designed so that YouTube will have to deal with as little copyright infringement claims (from the big right-holder industries) as possible.

From the perspective of the uploaders and viewers, ContentID is just this thing that helps YouTube take down videos, which they have the right to do (as per the TOS) "for whatever reason". The dispute procedure is just something to make that easier to swallow, but unsurprisingly it's not at all effective in getting a more just result.

That's what you get when you upload your work to a platform like YouTube instead of publishing it yourself. As a small player you can't really get YouTube to sign a contract detailing the license under which you allow them to publish it on their platform.

Wouldn't Content ID just be a civil matter if the revenue is under a certain amount, given that it operates outside of the DMCA?

It's in fact just a TOS matter. It's entirely YouTube's call.

IIRC there are penalties if you lie about who you're bringing the claim for.

I didn't even get that far on one video I tried to upload. I had the permissions to distribute the video (video game trailer direct from the publisher, so the entire purpose is to redistribute it), yet the upload was rejected outright with a "This video violates the YouTube ToS message" (no nudity/violence etc. either, so I can't think it should have tripped any other content filters).

US copyright law has very stiff penalties for false copyright claims. Just sue YouTube directly.

It was probably a YouTube internal content ID claim and not a DMCA takedown request per se.

No, it doesn't.

For example, in a DMCA takedown notice the only thing asserted under penalty of perjury is that you are, or are authorized to act on behalf of, a copyright holder. And YouTube doesn't even use the DMCA system; it uses its own separate terms-of-service-governed system.

Yes, it does.

17 U.S. Code § 512(f) states:

(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.

---

This has been tested in Online Policy Group v. Diebold, Inc. - and Diebold lost and had to pay $125,000 to Online Policy Group.

https://en.wikipedia.org/wiki/Online_Policy_Group_v._Diebold....

The Diebold case is basically the only time anyone's ever made that work, though, because the bar for it is so high. It's not enough to prove "they made a complaint and it turned out it wasn't their stuff". You have to prove that they knew, which is next to impossible unless you basically have a notarized statement from them saying "Yes, I was aware it was wrong and did it anyway", and the payout is a pittance.

Meanwhile, the idea that DMCA notices carry some sort of super-strict ruinous penalty for errors remains completely false. And YouTube -- as I said in the original comment -- uses a separate takedown system governed by their terms of service, so the whole thing is moot.

Well, that's not actually what you said. You actually said:

> in a DMCA takedown notice the only thing asserted under penalty of perjury is that you are, or are authorized to act on behalf of, a copyright holder

And the Diebold case didn't have anyone with a notarized statement that you speak about. I don't think what you are saying is necessarily supported by the facts of that case.

It is true that the only thing asserted under penalty of perjury in a DMCA notice is that you are or are authorized to act on behalf of a copyright holder. The rest of the notice is not made under penalty of perjury.

The notarized statement comment was hyperbole to make a point about how hard it is to prove, sufficiently for a court, that someone "knowingly" and "materially" misrepresented information in a DMCA notice in order to trigger 512(f). In the Diebold case you had the perfect storm, because Diebold's lawyers basically admitted to the court that they knew they were using the DMCA not for copyright enforcement but to take down something that embarrassed them. That is literally what it took to get a judge to nail someone for DMCA abuse.

And even then: the judge only found that they knowingly/materially misrepresented for a subset of the material, and they only paid out $125k, which is literally nothing to a company of Diebold's size.

Meanwhile, DMCA abuse remains routine and rampant today, in large part because it's next to impossible to get someone penalized for it.

"Knowingly" is probably too high a bar for this to be a significant deterrent. A mental state of negligence or recklessness would make it much more effective.

Knowingly misrepresenting that material is infringing to get it removed probably ought to be subject to criminal penalties.

You probably 'agree' to an arbitration agreement when you make a youtube account.

Sue them in any country that ignores arbitration clauses.

IANAL but seems like you cannot just sue people/companies in any country. I think you need to be at least resident of such country.

Each country has their own laws. The EU is mostly harmonized, and most other countries have similar laws. However if you want to do jurisdiction shopping you might find a country (in Africa?) that will allow you to sue.

> In the end I just gave up, and let some French band monetize my video that contained a song written and recorded by my friend's dad. Enjoy the 25 cents you earned!

I would have elected to not post the video. NEver let anyone profit from your efforts if they have done nothing to contribute. Don't cave to these bottom feeders.

> NEver let anyone profit from your efforts if they have done nothing to contribute.

Don't focus on the "bottom feeders". Focus on those to whom you have brought joy. Github would be an empty place otherwise...

Ah! But in the case of open source, a person willingly releases code, usually with a license, fully knowing someone will profit from it. That is their choice. Git hub is full of open source licensed code at the will of the authors.

In the case of the parent post I was addressing earlier; This is akin to a company claiming part ownership of your open source code because you used part of a public domain library your friend's dad wrote which they copied and incorporated into their closed source product.

Reply on news.ycombinator.com