The DMCA: A Year In Review

If Content ID flags your video and this flag is not legitimate, you should dispute the claim. If your dispute fails then you may appeal the ContentID flag. The Content manager then must submit a proper DMCA Takedown Notice to deny your appeal. When a Content Manager denies your appeal, you will get a strike against you on your YouTube account and your entire video will be removed, your account will no longer be in good standing and you can lose monetization privileges. You can remove a strike by submitting a counter-notice under the DMCA. If the Content Manger does not file a lawsuit in federal court within 14 business days from your counter-notice, then YouTube must restore video.(7)  However, this doesn’t always happen. The other problem with Youtube takedowns, however, is that once the content is removed for a video with a lot of views, even after reinstatement, your view numbers will not necessarily get reinstated. As Electronic Frontier Foundation notes, “in many instances, even if you successfully submit a DMCA counter-notice, the video will not be reinstated.(8)

So, with this in mind, we come to the “Dancing Baby Case.”(9) As a reminder, Lenz uploaded a 29 second video of her children dancing to Prince’s “Let’s Go Crazy.” Universal did not consider whether this was an incidental and fair use prior to sending a takedown notice. Lenz sued for declaratory relief. The Ninth Circuit ruled that copyright holders like Universal must consider fair use before trying to remove content from the Internet. The court focused on the requirement that Universal had to sign that under perjury of law it had a good faith belief this use was not authorized. Universal argued, unsuccessfully, that fair use is not a use “authorized by law,” but rather a defense to an unauthorized use. The court disagreed and found that fair use is a use “authorized by the law,” which is kind of a big deal. The court also rejected Universal’s claim that a victim of takedown abuse cannot vindicate her rights if she cannot show actual monetary loss. Media conglomerates will definitely be looking at all this differently as all of them run algorithms to capture unauthorized uses and often automatically flag accounts or send out letters. Now someone will have to look at these and determine whether there is a subjective fair use reason-until they create a program that can determine fair use. If they had at least analyzed fair use, Universal would not have been in violation. Again, how worth it was it for Universal to have this much bad publicity over a dancing baby with a  bad recording of a Prince song in the background that is barely recognizeable?

So then, what do you know, Youtube recently changed its tune and Google has announced that it will promise to pay the legal fees (up to $1 million) of certain YouTubers where takedowns have been issued in cases where YouTube agrees that fair use applies.(10) YouTube states,“we are offering legal support to a handful of videos that we believe represent clear fair uses which have been subject to DMCA takedowns. With approval of the video creators, we’ll keep the videos live on YouTube in the U.S., feature them in the YouTube Copyright Center as strong examples of fair use, and cover the cost of any copyright lawsuits brought against them.”(11) Overtime, this could be a very good thing for the YouTube community to begin to develop its own best practices so that creators can better understand and develop fair use guidelines.

However, a far more effective (and simpler) change would be for YouTube to remove the immediate monetary reward for a false claim, so that instead of the ad money being diverted to the claimant and never recovered by the creator, the ad monies could be held in escrow until the matter is resolved.

There are always DMCA takedowns that are used as a censorship tool, as in the case of the Ashley Madison affair, pun intended. After cheating website, Ashley Madison, was hacked and members’ names were exposed, Ashley Madison sent out  DMCA takedown notices claiming to own the copyright on the stolen data that CheckAshleyMadison.com and other tools were using to search these hacked names.(12) This is kind of a stretch, as we know from early copyright cases that data or “facts” are not covered by copyright.(13) The owners of CheckAshleyMadison.com told Gizmodo that they “felt that it was best to play it safe and comply with their wishes,” so they took the site down.(14) I’m sure members were relieved, and this was a landmine waiting to go off, but there are many examples like this of takedowns being effective censorship tool. When lawmakers are rapidly moving towards expanding the reach and strength of the DMCA, the real threats of censorship must also be considered.

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