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Comment by jjoonathan | Hacker News Reader

> YouTube assumes “guilty until proven innocent” because that’s cheaper. It’s cheaper because properly following the chain of what constitutes free speech and whether a claim is legitimate are costly questions.

My impression was that the law itself was fine in this respect -- a claim could be met with a counterclaim (requiring legal commitment from the alleged offender -- signatures, identity, jurisdiction) and YouTube could then restore the media pending actual litigation. In other words, Legal Entity vs Anonymous defaults to a takedown, but Legal Entity vs Legal Entity defaults to keep up. That sounds reasonable to me, and the fact that youtube doesn't work that way is not a consequence of law but rather a corporate choice to put luxurious accommodation of large copyright holders ahead of basic decency towards content creators.

> [Copyright creep is corporate welfare]

Yep. Gross.

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I think the secondary risk factor is that access to the legal system is expensive and time-consuming, especially for an individual.

A counterclaim process, even if as streamlined and fully supported as possible, is still a legal operation which involves time and money that many people are not going to have, especially for small-scale and legitimate fair-use scenarios. If you copyright claim some video from Sony or IBM, they've got a legal team on retainer to get it back up. A top-tier "content creator" who's earned six or seven figures and his career depends on the video staying up might hire a lawyer and fight for it. But the guy who's using a video clip as a fair-use part of a non-commercial discussion is probably going to fold instead of going out of pocket to defend himself.

So we'd see the system falling back to "no response/takedown" for many important real-world use cases anyway.

If DMCA spam had a cost to it-- perhaps a deposit that had to be filed with the court, refundable if there is no counterclaim, or actual prosecution of bad-faith actors for perjury, that might help make it a tradeoff rather than a wholesale giveaway to the copyright industry.

No, the DMCA itself is a terribly one-sided law, from the same place as every other law unilaterally written and forced on us by moneyed interests. It only seems halfway reasonable because its passing happened so long ago, like the CFAA. The DMCA makes the target spill their real world identity, submit to US jurisdiction, requires a one day deadline for takedown but a two week waiting period for something to be put back up, and carries effectively no penalty for incorrect/fraudulent takedowns. Never mind its draconian "anti-circumvention" provisions that continue to plague basic interoperability. It might as well have been called the Sonny Bono Fuck Computers Act.

>requires a one day deadline for takedown

The DMCA does not require takedown within one day. It requires “expeditious” removal. But courts have held that response times ranging from 5 to 14 days are expeditious, and in a recent case against YouTube (Business Casual v YouTube), a 23-day delay was excused because the court applied the standard for purposes of volitional conduct and direct infringement, sidestepping the DMCA entirely.

Some quotes:

The plaintiff “has not pointed to any authority to support the proposition that YouTube was under a legal obligation to conduct its investigation into Business Casual’s complaint on a more compressed timeline”

“Business Causal has failed to claim plausibly that any purported delay by YouTube constituted active, volitional conduct that caused TV-Novosti’s alleged infringement”

That case was significant for a bunch of other reasons, too. See discussion at https://blog.ericgoldman.org/archives/2022/03/youtube-defeat...

Doh, I must have confused some provider's policy with the law for the 24 hour thing. Still I'd make the point that the processing of a DMCA notice and the takedown generally happen simultaneously (regardless of delays), as opposed to say giving the uploader enough time to respond with a counterclaim and avoid an interruption in service.

That is a very interesting case! The part about the DMCA not applying to most Youtube takedowns (because the legit uploader has given Youtube a license) is particularly surprising, despite being a straightforward implication of the law.

>The part about the DMCA not applying to most Youtube takedowns (because the legit uploader has given Youtube a license) is particularly surprising

The licensing aspect is the surprising part I was referencing, but I understand it a bit differently. It’s not that the DMCA doesn’t apply. Rather, it’s that when you upload your content to YouTube, YouTube’s terms of service grant YouTube a broad license to use the content you uploaded. Consequently, YouTube can’t be liable for directly infringing any copyrights associated with that content. Since you licensed it to them. The DMCA still applies.

Assuming we're using "DMCA" here as a shorthand for the DMCA safe harbor, what do you mean it still applies? The way I understand it, abiding by the takedown process is only relevant for a party that would otherwise would be liable for copyright infringement.

The court states this in a bit of a roundabout way (compared to my blunt summary):

> The DMCA safe harbors provide potential defenses against copyright infringement claims where, but for the safe harbors, the plaintiff has a meritorious cause of action against the defendant for copyright infringement. But alleged failures to satisfy the conditions of a DMCA safe harbor provision cannot constitute a cause of action without a viable underlying claim for copyright infringement.

> It only seems halfway reasonable because its passing happened so long ago

Haha thanks for making me feel old. I suspect many of us who remember life before DMCA don't consider it halfway reasonable.

I think more important than even preventing these laws from being passed, is that we propagate the remembrance that things haven't always been this way, lest these legal regimes be taken for granted and remain unquestioned. (I guess I'm getting old too with talk like that)

> submit to US jurisdiction

Since youtube is incorporated in the US all youtube users worldwide would have to submit to US jurisdiction anyways? (On top of whatever country they're in)

US global megajurisdiction corruption notwithstanding, no. There is a difference between your hosting provider being subject to US jurisdiction and having to take something down, and you personally being subject to US jurisdiction and being liable for having posted it.

Huh? Everyone is liable, to some degree, legally and morally for what they post. It's just that in practice it's hard to enforce.

Whether that falls under US jurisdiction, another country if they're outside, both, etc... for the case of youtube hasn't been settled yet. Though it seems very likely to be trending towards that direction.

I don't understand the relevance of your comment. You've seemingly mixed in a few things related to my point, while ignoring the point itself.

We're specifically talking about legal jurisdiction. An instance of copyright infringement depends entirely on jurisdiction, because copyright is nowhere near any sort of natural law.

I agree that practically the US government will attempt to invent some rationale to bring every action in the world under US jurisdiction (having looked at a Federal Reserve Note once in your life, wearing a shirt that is colored red, white, or blue, etc). But assuming other countries might actually stop acquiescing to this type of nonsense some day, then an individual having explicitly assented to it is likely to be a strong point in favor of continuing to asserting worldwide US jurisdiction.

> An instance of copyright infringement depends entirely on jurisdiction, because copyright is nowhere near any sort of natural law.

This is false for the many countries that have signed on to various binding international IP treaties, such as the various WIPO treaties which the US has also ratified. You should read up on it.

A copyright issue involving an online service such as Youtube in one WIPO ratifying country would near-automatically translate into an issue across many jurisdictions.

China also has ratified the 1999 convention as of last summer, so the area of the Earth where someone can ignore these treaties is shrinking rapidly.

Yes, and all that is quite unfortunate. But it has zero bearing on my general point.

The list of countries that have ratified WIPO treaties includes the US, the jurisdiction under discussion. It's very much relevant.

> Legal Entity vs Legal Entity defaults to keep up.

Note that it only does so after a waiting period of 10-14 days after the counterclaim. There's plenty of cases where a bullshit takedown is enough to destroy the value of the material taken down.

I can't think of any legitimate video upload scenario that has it's value 'destroyed' by being unavailable for 10-14 days. Can you name some examples?

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