YouTube's joke of a fair-use appeal process
jwz.org
jwz.org
YouTube is obliged to respond to claims immediately under the safe harbor laws, but they are not obliged to continue pushing if a user disputes the claim. At that point it should be handed off to the claimant so they can pursuit further action and YouTube is off the hook.
YouTube is doing more work than they need to, but probably because it costs them less effort and time to just side with copyright claim holders and act as a thorn to users who would use the content.
Whether something is "Fair Use" is still pretty ill defined and depends on a number of factors. I agree that this use would likely win in court with a claim of Fair Use (and I am not a lawyer but I've had some experience enforcing and responding to copyright claims, and have interfaced with lawyers who do know about them). The problem is that it will only win when both parties go to court, and the cost of that is high enough that the copyright owner holds a ridiculous amount of power since it will always be monolith versus one-off alleged-offender, which is the particular kind of bullshit being smelled by jwz.
edit: My guess on why they do it this way rather than just handing it off is that a great deal of effort is required to correctly identify users for claims, and if YouTube takes on that responsibility, they need to make sure they are not passing on the name/address of someone who is lying about their identity. Rather than making people jump through hoops to get their actual identity to pass to the copyright owner for litigation, they delay the process as long as possible.
https://www.youtube.com/audiolibrary/music
...and you still get automatically flagged for a music copyright violation, which has happened to me multiple times. Granted in both cases one counterclaim submission (mentioning that I got the music from their free library in the first place) was sufficient for them to stfu about it, but the fact that this happens in the first place is a powerful example of how broken the system is.
But the record label that issued the claim answered promptly to my counterclaim and the video was restored in 24 hours.
My supposition is that record labels upload thousands of songs to the Content ID system without checking them first, and they correct the copyright status of songs with the counterclaims they receive.
To put a fine point on it: there's a cultural attitude I've observed within Google[1] against doing anything that "won't scale." Both for better and worse, this manifests in a lot of Google products. A corollary of this guiding principle seems to be that having a real human being in the loop is anathema, even if the resulting end-user experience is terrible. Annoyingly, this approach seems to take precedence even when the need for scale is in some indeterminate future and when the current experience is poor.
As JWZ rightly calls out, this is him versus "the robots". This is probably exactly right, and completely fucked up w.r.t. any reasonable balance of fair use rights. It's kind of crazy that there's even a form that asks for input of the kind a human would read.
[1] From multiple discussions with Googlers, as well as various public articles by same.
http://recode.net/2014/03/18/its-over-viacom-and-google-sett...
http://www.nytimes.com/2010/06/24/technology/24google.html?_...
"To a large extent, the case addressed past conduct, as Viacom said it was not seeking damages for any actions since Google put in its filtering system, known as content ID, in early 2008.
But Michael S. Kwun, a lawyer at Keker & Van Nest who previously worked at Google, said the decision would ensure that Internet companies were not legally required to develop such a system and could expect legal protection as long as they took down content when copyright holders complained. “I have no idea how much money YouTube spent on developing its content ID system, but if that was required for any new start-up, you wouldn’t see any,” Mr. Kwun said."
Basically, Google did this to stop getting sued repeatedly as part of its settlements. Unfortunately, it gives large corporations with lots of lawyers an unfair advantage in the public space.
If Facebook hordes all such data even after account deletion, it wouldn't be surprising if Google/Youtube did much the same and can therefore be legally compelled to provide it to users.
Truncating this makes it even better advice: you never have enough knowledge or control to solely trust any valuable data or content to a service provider. Technology failures, business failures, legal failures, etc., etc. All of these can strike without warning. Keep at least three copies (e.g. a master and two backups) of anything you really care about. An online provider only ever counts as one of those copies, no matter their marketing claims.
An appeal will result in either:
the release of a claim on your video
OR a legal copyright notification from the claimant. In this event your video will be taken down and you will receive a copyright strike on your account. If you have received additional copyright strikes, this may suspend your YouTube account
The article incorrect interprets these two options as:
Agree with us that you are a dirty lying dirty thief, and we'll still allow it to play in some countries.
Disagree with us, and we're going to take it down everywhere forever. And I hope you know that this will go down on your permanent record.
This is incorrect. Here's what the two options actually are.
A: All claims are removed from your video. Nothing happens to you. Fair use wins. Glory be. The person making the claim didn't actually come after you with lawyers.
B: The person who is claiming copyright actually gets lawyers and comes after you for real. You'll have your chance to fight in the legal system. If you lose, the video is taken down and you'll get a strike. If you win, well, you win. Congratulations.
We have appealed many many videos. We only appeal ones we feel are fair use. Ones that are obviously not fair use, we just say yes to start out with. EVERY SINGLE TIME we have gone all the way on appeals, we have ended up with result A. Not one single claimant on our absolutely fair-use videos has actually tried to take us to court. The claims on our videos were released. The end.
It's just a bunch of scary text, but it's ok for it to be scary. If you push it all the way your video will be up with no claims. But you're giving your contact info so that they can actually sue you for real. YouTube is shielding you from taking that very real chance that you could end up in court if you aren't ready for that.
It seems like this system would level out a lot of claimants had to agree to pursuit legal action before making claims. Right now they have broad abilities to make claims without backing them up which disproportionately punishes users and creators.
I absolutely believe that people who violate the law should go to court, but the current landscape puts the user in a very disadvantaged position and there appears (at least externally) to be no long term "permanent record" for litigious content owners w/r/t claims vs. rejected claims. At some point they should no longer be able to make claims.
But if it's a 3 minute clip from a 90 minute movie, are they really believing that someone who would have previously bought the movie is content to be watching it in 3 minute snippets on the web?
It seems far more likely the opposite is going to happen which is that people are going to be exposed to movies they've never heard about before and be more pre-disposed to buy the full version. I know it's certainly happened to me quite a number of times before and there's nothing more infuriating to me than reading a blog post or reddit comment: "Check out how awesome Actor X is in Scene Y in Movie Z: <youtube link>" only to find a "This video has been removed due to a copyright complaint by XYZ LLC".
"If someone uploads my infringing content and there is more than ten minutes of infringement, take it down with an automated claim. Otherwise, put ads on it and send me the money."
This allows the flexibility for clips to go up, but not full movies. Of course, you have to have a sympathetic content owner first.
It works well to scare people from leveraging even public domain resources.
Unless we're promoting viral cat videos or k-pop clips.
Maybe its time to get Eric Goldman (http://blog.ericgoldman.org/) involved, he has a tone of expertise in this particular corner of the law.
Really it's ridiculously frustrating to use Youtube for anything that could be copyrighted anywhere. If only swarm based video streaming services with WebRTC were a reality[1].
Of course it matters if you are only using a portion of a work, but the context the work is being used in is a lot more important than counting the seconds.
If he thinks it's fair use, why doesn't he just put the video file on his own server?
Youtube is allowed to be unfair, but it's reasonable to complain about it.
The important point is that the original poster doesn't fall into any of those categories. If he wants his file to be hosted by someone who cares, a Google subsidiary probably isn't that.
If Google doesn't want to host videos for free, fine. But it needs to be honest about the service it's providing, no matter who the customer is.
(I say intentionally because content ID is known to be horribly flawed, and they very deliberately have made appeals unworkable. If they would require DMCA notices instead then appealing would be easy.)
No, you don't get it. Not once did he ever suggest that youtube is under an obligation to host his content. He is criticizing their implementation of the DMCA. Youtube is dependent on uploaders and viewers -- if they piss those people off, what value does youtube have?
"If the original title includes the name of the site, please take it
out, because the site name will be displayed after the link anyway."If you're familiar with JWZ you know what kind of tone this is going to take and what you might get out of reading it. I'm not keen to read everything he writes but this story written by just about anyone else would not get my attention. I'm sure some people feel the opposite.
But biot's comment makes it all moot.