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Comment by RandallBrown | Hacker News Reader

As far as I know, covers aren't fair use. https://www.legalzoom.com/articles/posting-cover-songs-on-yo...

Thousands (millions?) of people post covers on YouTube with no issue, but sometimes people get unlucky. I don't think monetization makes a difference in the eyes of the law (maybe it would for proving damages? I'm not a lawyer.)

What's unusual is that he said he got 5 copyright strikes without telling him why. I've gotten a copyright notice on a video before and I got an email and I think it even shows on the video where the violation is. (I'm not 100% sure, it was a long time ago.)

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Covers might not be fair use, but teaching is.

https://www.copyright.gov/title17/92chap1.html#107

He posts both pure covers as well as lessons. Does he mention in the video that it was his educational videos that were the reason for this?

AIUI the point is that they're being indiscriminate by taking down the whole channel, including potentially both fair-use and non-fair-use items (and even original content).

I mean that sucks, but even without looking into the TOS this seems like the obvious result of any rule that involves multiple "strikes."

In a previous video on his original channel he talks about the first strike which was made against on of his tutorials by a company who published their tabs a few years AFTER he posted the video.

Sounds like it's a factor but not necessarily a deciding one. Also, the phrase used is "nonprofit educational purposes" so if he's got ads enabled he may be out of luck.

"Nonprofit" only appears in a non-normative portion of the statute, alongside other factors that might work in the plaintiff's favor here. Of course, Google's "shoot first and don't allow questions later" approach makes that pretty meaningless.

This is true, but won't help very much either. According to Google Support [1], they don't decide what is or is not fair use, leaving it up to the courts. This means the default position is that nothing is fair use unless the content creator is willing to go through the expensive process of proving it.

Funny enough, they cite a case where a content creator (h3h3 productions) was able to prove fair use in court as an example of the system working. If you look into that case though you'll see that the claimant was only an individual musician and not a big studio, and even then the legal fees were hundreds of thousands of dollars.

[1] https://support.google.com/youtube/thread/1281991?hl=en

> they don't decide what is or is not fair use, leaving it up to the courts. This means the default position is that nothing is fair use unless the content creator is willing to go through the expensive process of proving it.

Well.. that doesn't sound right? That sounds like Google's decided it will treat the accused as guilty unless/until they defend and prove their innocence? Could it not equally decide all claims against them are bullshit unless/until the claimant sues and proves their damages?

Given that the rights holders are litigious and the ones with the money, if I were Google I'd also be taking the content down rather than being a sitting duck waiting to get sued whenever a random user clicks the dispute button on their strike notification.

Of course, taking all other videos down and disallowing to open another channel ever, those are not measures which should be used until both parties agree that this has been settled or one of the two supplies a court document. But I don't think it's entirely unreasonable (debatable, sure; unreasonable... not sure) to make the video(s) in question invisible to everyone except the owner, copyright holder, and youtube employees until they agree it's settled or the court settled it for them.

The thing is, Google has nothing to fear here. The DMCA -- as much as we generally think it's a poorly-thought-out law -- already handles this. There's no need for Google to do anything beyond handling DMCA notices in accordance with the law, but they've decided -- likely because it's better for business -- to cater to the needs of large rights holders at the expense of individuals.

As long as they handle DMCA notices as they're supposed to, they're not at all liable for the content posted on their platform (copyright-wise). But it's easier for them to provide a guilty-until-proven-innocent fast-track for their larger, trusted, monied rights holders.

> DMCA [...] already handles this. [...] no need [to do] anything beyond handling DMCA notices [...] As long as they handle DMCA notices ...

Alright alright, I get the message, they need to just "handle" DMCA notices. But doesn't "handling" them include taking the content down? Because that was what I was saying.

Edit:

https://en.wikipedia.org/wiki/Digital_Millennium_Copyright_A...

> [online service providers must] promptly block access to alleged infringing material (or remove such material from their systems) when they receive notification of an infringement claim from a copyright holder or the copyright holder's agent

Taking the material down seems to be within the scope of what you're saying is "all they have to do".

So based on that, citing from your comment now (not Wikipedia):

> it's easier for them to provide a guilty-until-proven-innocent fast-track

Is that not exactly what DMCA is, given the above?

> Google has nothing to fear here

Viacom still sued Google 10 years ago and dragged them through three court rulings before Google agreed to settle [1]. It didn't matter that early rulings favored YouTube on the matter of DMCA compliance, the content owners will find a way to hurt you and lock you in court. After Google settled the case, they created Content ID and Viacom stopped attacking them.

It frustrates that everyone seems to miss the cause whenever this kind of stuff comes up. Does anyone actually think Google likes being pushed around by copyright holders? Does it make any sense to you for Google to want to create this insanely complex system if all they have to do is handle DMCA notices like they did before Content ID? The content owners have always pushed for something beyond DMCA. YouTube complies because there is something to fear.

[1] https://en.wikipedia.org/wiki/Viacom_International_Inc._v._Y....

It's a shame they caved and settled. If anyone has deep enough pockets to fight something like that, you'd think it's Google, even 10 years ago.

Music instruction channels on YouTube know that this may technically be true but simply does not matter. Rick Beato's channel has several rants about this, and here's one of them: https://www.youtube.com/watch?v=RqvuEal2P2E

Apparently you can have YouTube videos blocked or demonetized for even mentioning the name of a song from some very famous artists who have very active legal teams.

Looking at his other videos this seems like a clear cut case of copyright infringement, if he's not obtaining mechanical licenses. I don't understand why anyone is up in arms about this.

I think people are (rightfully) mad that YouTube is applying the rules so haphazardly. There are millions of similar videos on that aren't resulting in the creator getting their channel taken away.

But you're right that the guy is probably in the wrong. Part of the issue too is how opaque YouTube is about this kind of thing. It would be cool to see them build better appeals systems or at least treat their creators a little better than they treat copyright trolls (which may or may not be who gave him the strikes in the first place.)

> I don't understand why anyone is up in arms about this.

Because copyright is controversial.

It's a sync license that he would need (for videos). Unfortunately these are a lot harder and more expensive to obtain than mechanical licenses.

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