If they really wanted to solve it, here's an idea: if you get a takedown notice you also get a button that says "I am sure my content does not infringe copyright and I'm willing to go to court for it". YouTube reinstates your content and, if the entity with the claim disagrees, they can take you personally to court. Is this good? No, but that's on the DMCA. Is it better than now, when you have no recourse? I'd say yes.
I think the reason why the person in the article didn't do this is that the DMCA counternotice process requires the person filing the counternotice to provide their full name and address so they can be served if the rightsholder decides to sue them. With problems like swatting going around, I think many people would be reluctant to provide that information to someone who they already know is trying to mess with them.
A single button to immediately and without human review or notice period restore the video and monetization, remove the strike, and declare you are willing to solve it in court would solve a lot of the issues with ContentID abuse on YouTube.
Such a system would likely have to sit behind strict identity verification to prevent abuse, and some people wouldn't like that. But that's the price for sharing a platform with some very blatant infringers
Thankfully, I was able to find the contact info for the Content ID provider in question - and within a day of emailing them they pulled the Content ID claim, noting that the customer of theirs who uploaded that think-break-containing song did so in violation of the company's ToS (which specifically forbids uploading music containing common samples like that for this exact reason). It ended up being a happy ending, but it still left a sour taste in my mouth w.r.t. YouTube's policies and practices when it comes to Content ID and copyright claims in general.
It's even worse than that: the DMCA counternotice also requires the person filing the counternotice to agree to the jurisdiction of the USA courts, even if they live somewhere else. I think many people would be reluctant to take that additional legal risk.
Like all you would have to do to, perhaps not fix, but heavily mitigate this, would be to have YouTube just... hold onto the revenue until the dispute is resolved. It's barely even a change. And most of the time, when creators do counter the claims, they're eventually dropped but again because of how that system works, YouTube has already funneled all their money to the claimant, irrespective of the determined validity of the claim. And it would discourage bullshit claims because even as low-rent a scam as this is, it is some amount of work, and if there's no payout, you necessarily reduce the number of scammers who will attempt it.
I don't know if that's a DMCA thing, I admittedly haven't researched it in a long time, but I don't see how that would put YouTube at any kind of liability. Any reader, do feel free to correct me.
If the media companies had their way, everything would work like YouTube Content ID, because that's the system that minimizes their enforcement cost. What they want is to make everything Someone Else's Problem.
They do that: https://support.google.com/youtube/answer/7000961?hl=en
Edit to quote the full section because the cherry picked quote is misleading:
> If you dispute a claim within 5 days, any revenue from the video will be held, starting with the first day the claim was placed. If you dispute a Content ID claim after 5 days from the original claim date, we'll start holding revenue the date the dispute is made.
This is exactly what the YouTube copyright counter notification is. The problem is that YouTubers aren't lawyers, so they don't want to risk going to court.
I owe money for a toll road? Hmmm, I must have accidentally blocked that user, deleted the message thread and reported it as spam. Sorry.
In part because of these stupid DMCA rules preventing people like me from expressing their creativity.
I can appeal the strikes, but every time I do so I risk losing my channel forever. I don't monetize, and I only make parodies of stuff that came out over 10 years ago. So I've already accepted that the existence of my channel is ephemeral and that one day it will probably disappear forever.
But I don't have any other platform to go to if I want to share my 5-10 minutes long edits with more than 4 people.
Why am I not allowed to continue an art form that owes its name to the platform that spawned it? Is protecting the copyright of some random anime adaptation or cartoon (that no one gives a shit about anymore) seriously more important than creating novel art?
Copyright lasts WAY too much.
And no, I don't really want to go to court over this bullshit. But I am firmly convinced that it's in my rights to produce it. It's just that what counts as "my rights" depends entirely on the jurisdiction, because the law is a joke meant to protect people who can afford good lawyers -- it's not meant to actually enforce justice. Or rather, the concept of justice is so malleable that it basically means nothing in a globalized world.
Also, I'm from Europe. Which court should I go to when I infringe on an american dub copyright for a japanese cartoon, exactly?
At this point, if you are still using YouTube (or another platform), you're part of the problem (we've already been talking about this specific issue for 15 years already !!), use something like PeerTube instead !
Even more so if you're in Europe, heck, we even have the example of VLC basically violating DMCA and US patent laws for decades and they are still online - notably because they're not under US jurisdiction :
https://wiki.videolan.org/Frequently_Asked_Questions/#What_a...
> Also, I'm from Europe. Which court should I go to when I infringe on an american dub copyright for a japanese cartoon, exactly?
Well the copyright and the site are American so probably America.
Under very basic principles of law, only the owner or exclusive licensee of a copyright has standing to sue for copyright infringement. Furthermore, copyright law does not obligate copyright owners sue or license like trademark does. Therefore, for uses which are inconvenient[0] to sell a license for, but not damaging enough to go to court, copyright owners will often tacitly permit the use by simply failing to enforce their rights.
The problem is that courts have a very high bar to recognize tacit permission as a license. It's not impossible; there are some famous examples of 'implied license', but no competent lawyer would actually recommend you go to court and claim such a thing. One particular complication would be that if, say, you sued Fake Nintendo, and claimed fair use as a rationale for using Real Nintendo's content, Real Nintendo might want to actually sue you just to kill the fair use claim[1].
Just as an example of how complicated tacit permission can get:
Bungie's Destiny 2 is a perpetually updated "live service" game with an ongoing policy of removing content to keep download sizes reasonable[2]. As a result, there is music in the game that is no longer accessible. Bungie does not want people uploading the game soundtrack to YouTube, but they also don't want to turn that removed music into lost media, so they had a policy of not taking down "music archivists" that only uploaded the removed content.
One of the YouTubers that got taken down for reuploading live Destiny 2 music got pissed about it and started filing fraudulent DMCA takedowns in Bungie's name to music archivists. Bungie tried to get in contact with YouTube to have the fraudulent takedowns removed, but it took over a week of PR damage to everyone involved (and, if I remember, actually suing the idiot kid that did this) before YouTube would restore the videos.
If there is one thing that is badly drafted (and not just irritating) about the current DMCA 512 system, it's that there is no procedure for third-party counter-claimants to challenge fraudulent or mistaken claims. However, the current mechanisms of copyright make that impossible to provide. There is no database of who-owns-what and who-licensed-what; rights owners do not want such a database to exist; and it is entirely possible for multiple parties to have standing to sue the same person for the same act of infringement on the same work. Under regular copyright law, if Nintendo wants to sue you for, say, using the officially-licensed Mario DLC in your Minecraft streams, Microsoft can't intervene and stop them on the basis that they own Minecraft. How, exactly, should YouTube proceed if they have two parties swearing under oath conflicting information, and not obeying the right one puts you on the hook for billions of dollars in copyright liabilities? The current system is designed to make it easy to cheaply operate social media, not to actually be fair to its users or to stop online censorship.
[0] Reasons for this inconvenience can include:
- The transaction cost of negotiating a watertight contract for a very small deal. Generally speaking you don't want to make deals with understandable / 'plain language' licensing terms for the same reason why web browsers don't have an API to load unsigned arbitrary kernel modules from third-party servers.
- The licensing in question being contrary to exclusive licensing arrangements with other companies - though exclusive licensing contracts can also mandate the licensor or licensee enforce each other's rights to prevent this sort of thing
[1] In general, common law mechanisms like fair use create an incentive to sue, which is a very bad thing for people who don't like getting sued.
[2] This is a terrible policy, but the policies of console manufacturers require you to ship games as packages, so you couldn't just stream in assets as needed.
Platforms should only accept takedown requests through channels in which a person has credibly identified themselves so that they can be held accountable in this way.
DMCA has protection for creators. You can say "Copyright holder is wrong, put my content back up and I'll see them in court." and "They did this maliciously, I'll see them in court."
However, YouTube fake DMCA system is using the provision of "We don't have to host any content we don't want to." so creators are stuck dealing with corporate bureaucracy. Personally, I think YouTube should lose DMCA protection if they want to run this side system.
* YouTube has no liability for incorrect take-downs (17 USC § 512 (g) (1))
* That limitation on liability only exists if they restore access to the disabled material within 10-14 business days of receipt of a counter-notice (17 USC § 512 (g) (2) (C))
https://www.law.cornell.edu/uscode/text/17/512
YouTube doesn't have to host any content they don't want to. However, it seems likely that a court would say "that doesn't absolve you of complying with the counter notice provisions of the DMCA. You can't just say that you don't want to host any content that goes through a counter notice." There are always limitations on the whole "we don't have to host things we don't want to." I doubt a court would let them use that as an excuse to ignore an explicit mandate of the DMCA, but IANAL.
I think the problem is more likely that creators don't want to sue YouTube or have the resources to go up against Google.
In this case, the identity of the legal department would be directly connected to the infringing content found in the video which YouTube would have access to to verify. It also wouldn't be a takedown but a royalty demand or they could have registered "Let's play" as not requiring royalties. In principle though, YouTube or even the creator could just do all of this upfront.
That's my idea, in the vein of, "We have the technology to do this better."
I think it should switch to the strike system that YouTube, at least, favors: if you issue three fraudulent DMCA notices, you lose the ability to do so again in the future.
With blood.
No I'm not being edgy. That is the only way anything is going to change regarding the litany of fucked up corporate practices in our country. Our governments are ineffective at best and are active abettors at worst (read The Chickenshit Club for why they won't ever seriously prosecute execs). Boeing (completely different scenario from the OP but it's recent) has no qualms with killing to maintain the status quo, why should people that want actual change be any different?
The moment some game creator decides to test this will get very interesting. Not good interesting.
Immediately got taken down for copyright infringement. Completely destroyed my desire to ever make a let's play video again.
And it was for a 10+ year old game. It is unfortunate
> As long as you follow some basic rules, we will not object to your use of gameplay footage and/or screenshots captured from games for which Nintendo owns the copyright ("Nintendo Game Content") in the content you create for appropriate video and image sharing sites. To help guide you, we prepared the following guidelines: [...]
The legal gray area definitely still exists for many of the smaller/indie game studios, but this kind of licensing is more common than not today.
Would you say a screen capture of Microsoft Excel is also copyright infringement? If not, what would you say is the legal basis for treating that differently than a video game?
This is one of those areas where principles like “fair use” and “transformative use” don’t really matter, since we’re talking about YouTube de facto policy, not the law. If YouTube decides to honor the claims, then that’s what happens. And YouTube generally errs hard in the direction of rightsholders just to be safe.
Ironically, it was a bible software manual and the screenshots she looked at accidentally had text from a copyrighted bible translation. So she was right that those screenshots had copyright issues, but for the wrong reason.
Reading a book is interactive; you imagine the narrative/interpretive voice as you go through it. You might read a phrase one way where someone else might read it differently. Listening to someone read a book removes that difference but still conveys most of the plot.
Aaand Idk if book reads are on YouTube but typically people pay for audio books and some revenue goes to the author
That said, it would be absolutely petty and foolish to pursue any action against it.
Games contain art, music, sound fx, text/story, motion design, and other elements that are copyrighted.
Again, it would be petty and foolish to pursue it.
Yeah it is. However most uses of an Excel screenshot would probably be considered fair use, and Microsoft probably doesn't care for 99% of use cases.
If you look at Wikipedia's Excel article they have more details on the legal rationale behind their use of a screenshot [1]. It looks like Microsoft allows the use of product screenshots in certain cases as well.
I also took a quick look at an Excel textbook I had on my shelf and it specifically stated in the copyright notice that they had permission from Microsoft to publish the screenshots used within.
Just because you own the game, doesn't mean you have the rights to use it in more than a personal setting. That's basically always been the case. You bought a personal license, not a broadcasting one.
The main reason for not attacking such things in the past was that it was a wasted effort at control. Too small a target, requiring too much effort. Automation, through things like audio recognition, changes that.
In the case that the copyright audio is coming from a game, there is no way currently for the platform to automatically verify that you have a license or not, so once again they shoot first, ask question later.
This is unfortunate, but as usual, bad actors ruin the commons for everyone.
I guess my point is that this arrangement was fine for a very, very long time. Why is it suddenly not fine in the last handful of years? Who is standing to gain here? In my view, it hurts the very platforms and industries this is trying to "protect." Twitch/YT/etc. are harmed because the content will be inherently worse, and copyright audio IP is hurt because it will spread to fewer listeners. Not only this, but if it were available to me, I actually would pay to license the audio I use, but there is no mechanism to do that!
A similar dumb thing happened a few years ago with the PGA tour - they decided that anyone re-posting PGA clips without their permission, even if it was for commentary/parody/etc., was all of a sudden not permissible. So, all the golf content on IG/TikTok/etc got catastrophically worse overnight, and PGA (which struggles with viewership, especially young viewers) gets less free exposure. There's absolutely no way this was a positive outcome for anyone involved, so why?
Meanwhile if you're still using platforms to host these videos, and not something like PeerTube, you're part of the problem.
Also, cynical as it may sound, I assume the rise of a popular, successful peer-to-peer YouTube alternative would, in the US at least, result in the passage of even more consumer-hostile legislation, think "three strikes"-style anti-torrent laws with actual teeth (e.g., rather than requiring ISPs to make mostly idle threats to cut off Internet service against their own interests, imagine if ISPs were instead empowered to collect fines resulting from default judgements against repeat infringers, with a percentage of each fine collected paid to the ISP).
Those people being targeted by this troll should band together and sue.
> A fake Nintendo lawyer is scaring YouTubers, and it’s not clear [if] YouTube can stop him
It's also an example of pragmatics, specifically a conversational implicature, where the omission is forcing the reader to rely on the context of the sentence to fill in the blank or derive the meaning.
So while you are correct about the grammar, language use is often more complicated in practice.
It's definitely valid as-is. It's debatable whether it's unclear (what would the alternative meaning be if you think it's unclear?)
Looks like this may be called an "empty complementizer"; some more info here: https://en.wikipedia.org/wiki/Complementizer#Empty_complemen...
Both steps aren't trivial, and configuration errors are more common than actual spoofing. DMARC is supposed to fix everything, but only if the domain owner cares enough to do more than the bare minimum setup
https://www.cloudflare.com/learning/email-security/dmarc-dki...
It's fairly clear no human is reviewing the content any step of the way, otherwise they would see the only content on the page is a paragraph of plain text with the name of a movie. I feel like I have no recourse though. I don't have the time to make thousands of counter claims for some random forum pages that receive an insignificant amount of search traffic a year.
It feels like a broken system. How can someone pull thousands of my pages from Google, and I'm either forced to spend weeks of my time trying to recover them, or I need to leave them removed? Where is the penalty or punishment for the false claims? Who is going to compensate me for my time?
The DMCA notices from Google direct me to the complaint in the Lumen Database. In those notices it lists my domain along with hundreds of others for each complaint, so I'm not alone here.
I'm assuming a third party company is being paid to look after sending DMCA complaints for businesses. If they remove 100,000 URLs by sending DMCA notices, they can charge higher fees or get more contracts compared to other companies that only take down 10,000 URLs. There are no repercussions, so might as well automate the process and aim for big numbers.
I myself am guilty of abusing the DMCA. When I was fighting fraud for eBay and PayPal, if we found someone hosting a phishing site, we would use the DMCA to get them to take it down, claiming they were violating the copyright of the logo. We would send DMCA notices to any host in any country. Most would just oblige. A few would reply and inform us they weren't in the USA.
But it worked because the platforms feared the consequences of not following it, and there was no risk to us.
The DMCA needs fixing by adding severe consequences for incorrect use.
The platform could become liable for all the content across the entire platform if they don't act on a single DMCA notice, if they lose their protection as a platform because of it.
The only way to get Google to care would be for content creators to start abandoning the platform on mass, but they don't really have anywhere to go (sorry Vimeo). Even then Google views content creators as a dime a dozen, so to get the numbers you need to make them notice would be exceptional.
Getting access to the real names and addresses of these people is a nice bonus too; I'm sure their intelligence services would have plenty of uses for this information.
If there's one way of making the DMCA (and similar legislation around the world) go away, spinning it as an anti-free-speech law with national security concerns is probably it, especially considering the upcoming US administration.
Use youtube's bad policy against itself.
Companies could easily do this by including a tracking number for each communication, along with a copy of the communication then checking that tracking number on requests for confirmation.
Question is, will there be enough incentive for them to do so.
An email @nintendo.com is not that hard to get for the legal team of nintendo
