It is perfectly clear that YouTube can stop it. As the article points out, we know there are things YouTube can do because those are the very same things The Verge asked about and YouTube refused to answer. The DMCA is broken, yes, but YouTube has made it worse with their kind-of-but-not-actually-DMCA counter-claim process.
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.
ndiddy 17 hours ago [-]
Youtube already has that system. I had to go through the process due to a similar situation with someone falsely content ID'ing my video. In that case it was someone uploading music they didn't own to some online music distribution service. Basically the way it works is after you dispute the content ID claim and whoever filed it still says the content is theirs, you can escalate the dispute to an actual DMCA counternotice. After this, your video gets restored and the copyright strike gets taken off your channel.
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.
wongarsu 16 hours ago [-]
Yet YouTube's system takes a lot of time from the time the content is claimed to the time you can escalate to an actual DMCA. In this time your video is down or has its revenue redirected. And if your content gets too many frivolous claims your account is taken down by YouTube's three strike policy before you have finished the dispute process for the first video.
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
ndiddy 16 hours ago [-]
Your idea for a "single button to immediately restore the video" system would violate the takedown process outlined in the DMCA. The way it works is that after someone sends a takedown request, the content can't be restored until 10 business days after the person who uploaded it sends a counter-notice. This gives whoever sent the takedown request enough time to decide whether they want to file a lawsuit and keep the content down.
Agreed that Youtube's system has problems with how long it gives claimants to respond to the initial content ID dispute and with people spamming false claims. It's definitely not a perfect system.
lesuorac 13 hours ago [-]
> Your idea for a "single button to immediately restore the video" system would violate the takedown process outlined in the DMCA.
IIUC, YouTube's copyright system is not a digital implementation of the DMCA. It's an additional system that occurs before the DMCA notice/counter-notice process so the laws about the DMCA are moot because it's not a DMCA notice (yet).
ndiddy 11 hours ago [-]
You're right that it's an additional system prior to the DMCA process. I was interpreting his/her "declare you are willing to solve it in court" as applying to the DMCA takedown process, as that's what filing a counter-notice does.
AnthonyMouse 12 hours ago [-]
> The way it works is that after someone sends a takedown request, the content can't be restored until 10 business days after the person who uploaded it sends a counter-notice.
I'd be curious to know if this has ever been challenged in court as an unconstitutional prior restraint. Pretty obvious problems if you get people e.g. issuing fraudulent takedowns 10 days before an election.
ascagnel_ 9 hours ago [-]
YouTube is a private entity; as long as they comply with the DMCA, they're under no obligation to take content down or even make content available (outside of contracts they enter into voluntarily). The DMCA doesn't provide strict timelines (just that the initial takedown requires the provider to "act expeditiously", and nothing for restoration).
The bigger issue is that Content ID has always been a way for YouTube to side-step the DMCA in a way that's beneficial to big copyright holders -- channel operators assume risk fighting a takedown in a way that was never a part of the DMCA.
AnthonyMouse 3 hours ago [-]
> YouTube is a private entity; as long as they comply with the DMCA, they're under no obligation to take content down or even make content available (outside of contracts they enter into voluntarily).
"Comply with the DMCA" is the issue. If the law requires user-generated content hosts to take down content and leave it down for 10 days or they lose a legal protection that keeps them from being incinerated by lawyers, that's effectively a legal requirement that they take it down for 10 days, i.e. a prior restraint, which is typically not allowed.
> The DMCA doesn't provide strict timelines (just that the initial takedown requires the provider to "act expeditiously", and nothing for restoration).
What's this about the 10 days in 17 U.S.C. § 512(g)(2) then?
nadermx 13 hours ago [-]
It would not. As youtube's "dmca" isn't an actual one. If they did actual dmca's it would in fact go against the dmca. And on a side note, there does not have to be a 10 day window for the reciver of the DMCA to file suit. Once someone files a DMCA against you you can file an instant action as they made a legal claim against you.
mindslight 15 hours ago [-]
The DMCA does not obligate Youtube to do any of the claiming/strikes parts. They could straightforwardly separate out the two processes - a voluntary expedient web process with the contentid fingerprint arbitration, one-click immediate counterclaim, no need to dox yourself, etc. And then a heavyweight strict DMCA process that fulfills DMCA obligations to the letter of the [unjust] law, requiring the waiting period for restoration after the counterclaimant doxes themselves, but doesn't drag in all the extrajudicial "strikes" and whatnot. The filing of a heavyweight DMCA would forgo the option for the voluntary nimble process.
Of course there are plenty of corporate authoritarian imperatives for why they don't. This comment is a thought experiment to demonstrate their complicity in how their system is routinely abused.
yellowapple 12 hours ago [-]
I went through a situation similar to yours, and encountered an additional discouraging factor: YouTube seemed to threaten to take down my channel entirely if my appeal was to be rejected. There was also no real option for "the person making the Content ID claim obviously doesn't own the copyright to the work in question" (in this case, the famous "yeah! woo!" a.k.a. "think break" sample; the Content ID match was from what seemed to be a remix of "It Takes Two"), so I was at the mercy of whatever opaque process YouTube deemed fit to review my case - and was a bit spooked when it came to potentially losing my whole channel (and who knows what impact that'd have on my broader Google account).
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.
fortran77 8 hours ago [-]
I play classical piano and sometimes upload to YouTube. You're right that there's no easy way to say "the person making the Content ID claim obviously doesn't own the copyright to the work in question". This happens almost every time I put a recording of myself playing Chopin, Bach, Mozart, etc and I get a notice from BMI or DG, etc.
You'd think that YouTube could at least categorize those who perform and record unambigiously public domain works and advise people using automatic match software to be _very_ sure there's an infringement.
Someday if I have time and patience, I may try to see what legal options I have against one of these deep-pocket companies who are making false (and libelous) claims about the recordings I have made. They're accusing me of theft, and it's provably false.
What's annoying is sometimes I'm on the road and don't get to responding to the request for several weeks.
lesuorac 8 hours ago [-]
Well, keep in mind Content ID [1] is in response to Viacom v YouTube [2] despite Viacom not winning (largely on the grounds that Viacom itself didn't know which works were copyright infringement so how could YouTube).
So, the system exists to placate large rightsholders. It's not going to be modified to cause them problems.
> 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.
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.
BlueTemplar 10 hours ago [-]
And for many other people isn't this actually less of a legal risk than if their own courts were involved ?
mbrumlow 16 hours ago [-]
[flagged]
Aunche 17 hours ago [-]
> I am sure my content does not infringe copyright and I'm willing to go to court for it
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.
Hilariously, now I ignore every single text/email requesting that I pay something, do something, etc.
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.
blueflow 17 hours ago [-]
Then hire a lawyer & sue, you have to enforce your rights.
nullc 13 hours ago [-]
Google shields the false-DMCA complainers and will absolutely not reveal their identities.
Aunche 7 hours ago [-]
The identity is in the takedown request. It's Tatsumi Masaaki from Nintendo USA. The problem is that it's fake.
onli 12 hours ago [-]
Google has to given a court order. Or is that unachievable?
nullc 11 hours ago [-]
Perhaps if you're interested in bankrupting yourself fighting against Google's legal budget.
Aunche 16 hours ago [-]
Right. Part of the reason why it's hard to start a business is having to deal with unfair bullshit. Youtube streamlines enough of the process to get people started relatively easily, but they get a lot of shit from these same creators for not doing everything for them.
JohnMakin 15 hours ago [-]
Because all creators have the means and resources to hire a lawyer to fight forces much more powerful and wealthier than they are. This is blaming the victim.
Aunche 12 hours ago [-]
Welcome to being a business owner. Nobody is going to protect your business more than yourself. A tenant refuses to pay rent and eviction takes a year? Too bad. Next time, do a better job of screening for risky tenants.
The problem with the victim first mentality is that it causes you to underestimate how much agency people actually have (e.g. being unaware of how excessive tenant protections decrease the supply of housing available to low-income earners).
JohnMakin 12 hours ago [-]
You know not all content creators are out for money, right? If you want a trivial example, I am one of them. It may even shock you to learn that in the before-times, people even created content purely for fun and the entertainment of others. Wow! Hardly believable now, especially reading this post I am replying to.
That said, again, how is a small creator, which at least several nines of all creators are, supposed to scratch up the legal and financial resources to fight massive corporate interests and industrial scale fraud? Why is the onus on them, rather than the platforms that enable this kind of behavior? Like, I'm not trying to be overly sarcastic here, I'm genuinely curious how you make sense of this in your head. Is it like "oh well, that's the way of the world, fuck em?" kind of thing, or is it based on some kind of sound principle? Because the way things are do not really help anyone, except behemoth media interests, and especially hurts the quality of content online, which if I can make an assumption, you and I both consume. Which also, ironically, hurts the very platforms that (I suspect) you are trying to stan for here. Make it make sense?
BlueTemplar 10 hours ago [-]
Then there's even less reason to keep using a platform for this, use something like PeerTube.
Aunche 11 hours ago [-]
> people even created content purely for fun and the entertainment of others. Wow! Hardly believable now, especially reading this post I am replying to.
Believe it or not, I shitpost on the internet for fun. Sometimes, I get flagged for bullshit reasons (moreso Reddit than hackernews), and there's nothing I can do about it. Since it's for fun though, it doesn't really cost me anything outside some minor frustration.
> That said, again, how is a small creator, which at least several nines of all creators are, supposed to scratch up the legal and financial resources to fight massive corporate interests and industrial scale fraud?
This article is talking about a small-time copyright troll who is obviously pretending to be Nintendo. There is virtually no risk of calling their bluff because they obviously aren't going to commit identity fraud in court. Chances are, the troll has better things to do than to leak your personal information, but if you're worried about that, you can hire a lawyer to file the counter notification for you for a couple hundred bucks. I'm sure there are ways to do this yourself as well if you need to fight a lot of claims. Just spitballing here, but if you have a business owner friend, you can use their business address and have them be your representative and file on your behalf.
If we're talking about large corporations with armies of lawyers like real Nintendo, then there's not much you can do besides hiring a good lawyer and listening to their advice. For very straightforward cases, you can probably play lawyer yourself so long as if you do enough research and preparation (again, just spitballing). Also, it's not like Nintendo is unaffected by legal costs. In fact, any legal action will probably be several times more expensive for them than it would be for you. If they're pursuing legal action, they likely genuinely believe they're in the right.
sleepybrett 15 hours ago [-]
they get a lot of shit because most youtubers would be forced to hand over their pii (name and address) to the reporter. Some reporters are doing this solely to get that information (stalkers, doxxers, etc).
It's unclear, to me, if youtubers could proxy this through an attorney.
Aunche 15 hours ago [-]
> It's unclear, to me, if youtubers could proxy this through an attorney.
Yes. An authorized representative is allowed to submit a counter notification on your behalf, so they would put their name and address instead.
Vampiero 16 hours ago [-]
I make free videos why tf would I ever hire a lawyer to protect my parodies. It's incredibly stupid considering that I am not a billionaire and that the copyright holders are. I would be throwing my money in the bin. And they know this full-well, which is why the system works in the first place.
Vampiero 17 hours ago [-]
Consider the following: I make a form of parody that is known as a Youtube Poop. It was all the rage last decade, but now it's a dying art.
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?
mulmen 15 hours ago [-]
Nobody has a right to an audience.
> 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.
bingaweek 11 hours ago [-]
Comments like yours are why ycombinator has a horrible reputation. It's a worthless dismissive truism to shut down a legitimate complaint from a creator who is being screwed around by bad laws and bad applications of bad laws. Yes, we know we don't have rights, that's why we're complaining.
marcosdumay 14 hours ago [-]
> Nobody has a right to an audience.
The GP isn't asking for an audience. (Except if you mean "with the king", because that's exactly what the comment is asking for.)
> Well the copyright and the site are American so probably America
The GP didn't tell you who the copyright owner is. And Google is present in more than one country.
That said, yes, your last paragraph is a good hint. The world should just think very hard about blocking every large US business.
Vampiero 15 hours ago [-]
> Nobody has a right to an audience.
That's literally what copyright is
FireBeyond 14 hours ago [-]
No, it's literally not. Copyright is that you have the right to potentially benefit from your work.
You can broadcast it. You don't have any kind of right to an audience to watch it. I don't even know what that would look like.
AnthonyMouse 12 hours ago [-]
A plausible interpretation of "you don't have a right to an audience" is that people don't have to watch your dross if they don't want to, and this is the meaning which is normally meant to be implied (the motte in the motte and bailey).
Then people want to use it in the sense of, you don't have a right against someone else interfering with your interaction with your willing audience, i.e. you don't have a right not to be censored by a government or corporate oligopoly. But that is a far less defensible proposition.
FireBeyond 11 hours ago [-]
Exactly. Or even "you don't have a right to a platform".
You can speak your mind. That doesn't mean YouTube is obligated to broadcast it for you, nor does it mean your speech is being suppressed if they choose not to.
AnthonyMouse 10 hours ago [-]
The premise being that you have lots of other equally-viable alternatives. Which was probably true on the old internet -- just use a different host.
The modern one where the adversarial video host is owned by the search engine with 90% market share that disfavors competitors in the search results? That's a different story.
Of course, the better solution there might be antitrust rather than common carriage requirements, but something's got to give.
strken 10 hours ago [-]
On a factual level, your speech is being suppressed every time someone refuses to broadcast it for non-commercial reasons.
YouTube isn't obligated to broadcast it, and in some cases it's debatable whether they're the ones suppressing it, but it is still being suppressed.
FireBeyond 10 hours ago [-]
That isn't accurate. Unless they are physically stopping you from speaking, they are not suppressing it. They're just not amplifying it.
BlueTemplar 10 hours ago [-]
But here it's not so much even about DMCA, as about YouTube's own para-legal system and trolls abusing it.
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 :
They wouldn't even need to go that far. The current way YouTube's system works is so deck-stacked against the creator to a ludicrous degree. Basically any "copyright holder" just has to say "this belongs to me" and YouTube immediately funnels all revenue for the video to that holder, with basically no oversight whatsoever, and as anyone in the space will tell you, a video makes 90% of it's money in the first few days which means these holders can grab the monetization right out from under a creator and steal just, all their fucking money. It's ridiculous.
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.
kmeisthax 7 hours ago [-]
It's not a DMCA thing at all. DMCA 512 is actually pretty straightforward, you're referring to YouTube Content ID, a completely separate parallel takedown system that YouTube made at the behest of their content licensors.
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.
infinitesoup 15 hours ago [-]
> hold onto the revenue until the dispute is resolved
Caveat is if you file the counter within 5 days. From listening to a few creators describe the counter filing process, you need to gather a lot of evidence to prove that you are not infringing. It apparently takes a lot of time and what happens is that targeted harassment very easily turns into a DOS-like attack. So 5 days is an unreasonably short time window that puts an extreme burden on the content creator.
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.
malfist 15 hours ago [-]
There's a guy on YouTube that does discussions about star wars, and has an into music that he got the rights to use from the author.
Someone who didn't have the rights resampled the original song and submitted it to a label (not sure that's the right term), and the label proceeded to DMCA every single video the guy had posted.
Over a thousand videos, having to gather all that info for all of them, go through the appeals process on all of them. For him it was a manual action one at a time. From the label they have an API to bulk initiate claims
asddubs 14 hours ago [-]
There was also the example of family guy copy-pasting a 10 year old youtube video of an exploit of an old NES game into an episode, and that video which predates the episode by 10 years (or something) then got taken down because it infringed on the family guy episode that copied the video.
jay_kyburz 13 hours ago [-]
Hold on, A video that infringes will almost most certainly be a mix of their content and your own new content.
You should have to negotiate a percentage fee, not assume the claimant is entitled to 100%
MichaelZuo 16 hours ago [-]
Why would they implement this instead of de-monetizing it completely?
monocasa 16 hours ago [-]
They're an ad company at the end of the day; they still want their cut of the monetization.
Additionally both sides of the dispute normally still want the monetization, they just disagree about who gets the proceeds. And because of the time value curve of YouTube videos (most make something like 90% of their revenue in the first few days), demonetizing has a good chance fo essentially erasing the revenue of the video for the creator.
ToucanLoucan 16 hours ago [-]
I mean, then YouTube is substantially cutting into their own revenue too, but even that would be better than just handing over all the revenue to an unverified 3rd party that clicked a button.
xvector 17 hours ago [-]
Big tech has such a twisted incentive structure for devs that I don't see this getting solved unless it impacts YouTube's bottom line. Execs won't care, and ICs will be actively penalized for fixing this vs working on "business priorities."
ToucanLoucan 16 hours ago [-]
God I wish there was a decent competitor to YouTube. They get away with so much horseshit because there's just nobody else that can match their service scale and network effects.
HeatrayEnjoyer 16 hours ago [-]
Why is that? Video streaming isn't the behemoth it was last decade.
scrose 15 hours ago [-]
Google owns the platform and the ad network / marketplace. A lot of videos ‘lose’ money and just take up space.
Any viable competitor to YouTube would need a solution that allows signups, watches and video uploads, without requiring a fee. Which typically means displaying ads. For Google the ad network is already there. For anyone else, they need to either create their own marketplace, or have Google (or some other network) take a large cut of their ad revenue.
This is likely why the only other ‘competitors’ you see are peering based or based on a subscription model. Neither of which can really compete with YouTube which really doesn’t need to *directly* make any money
rad_gruchalski 15 hours ago [-]
And how long do you think it would take until the competitor would end up in the same situation? How can the god help with it? And which god?
AnthonyMouse 12 hours ago [-]
> And how long do you think it would take until the competitor would end up in the same situation?
YouTube ended up in that situation for two reasons. First, the original YouTube before Google bought it was playing fast and loose with the law and was in the process of getting sued over it after Google bought them. Second, Google wants to license Hollywood content for YouTube TV etc. So between wanting to settle the lawsuit and wanting to sell their soul and become Comcast, Google agreed to do a lot of this draconian BS that isn't otherwise required by law.
A competing service that just wants to be YouTube without being YouTube TV could plausibly follow the law without steamrolling the little guy quite as much.
7 hours ago [-]
rad_gruchalski 7 hours ago [-]
So like dailymotion? Why won't people use that instead of youtube?
AnthonyMouse 3 hours ago [-]
Partially because it kind of sucks, but maybe more because Google owns YouTube, has 90% search market share and heavily favors YouTube videos over other video hosts in search results.
Which means you need it to not suck or have some other countervailing advantage which is enough to overcome that, e.g. TikTok, but without the geopolitical issues of that one.
kmeisthax 13 hours ago [-]
That exists, it's called a DMCA 512 counternotice; if you're particularly monied you can even sue under 512(f) for perjury. The problem is that the videos are actually infringing, but the owner of the content does not want to sue.
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.
dclowd9901 6 hours ago [-]
Yep. Really very sick of these content platforms throwing up their hands and waving all responsibility on everything. We would never entertain newspapers violating copyright or fake news bullshit.
cactusplant7374 14 hours ago [-]
Why shouldn’t Nintendo have an official YouTube mandated account for takedowns? Is there a legal requirement that they don’t validate the rights holder?
Guest9081239812 16 hours ago [-]
I have a forum that receives a high number of DMCA claims. They link to pages on my forum where they claim I'm violating their copyright. However, when I review the pages, the content only mentions the name of a product or service. Imagine I write something here, like how I watched the movie "Inception" last week. A third party then sends me a DMCA request on behalf of Warner Bros, and Google removes this page from their search results. That's what I get, but thousands of them.
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?
asddubs 7 hours ago [-]
does your forum have download or something in the name that could lead them/a scanning tool to think it's piracy download links? Not saying that would make the situation any more justified, I'm just kind of curious
Guest9081239812 4 hours ago [-]
Nope, it doesn't offer any downloads, or questionable content. The site has strict guidelines against any comments even mentioning piracy.
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.
JohnMakin 16 hours ago [-]
The DMCA has absolutely ruined a decade+ long hobby of mine, which was streaming/content creation. I used to have really fun streams not that long ago that featured a variety of relaxing/cool music set to the backdrop of me messing around on the computer, or in some game. Everyone was fine with this arrangement for a long time. Then, things suddenly changed a few years ago. First your VODs would get yanked and you'd get a warning if you played some extremely popular song, and it was like ok, I understand that. But now it's even spread to in game audio of a game I literally have purchased. That is ridiculous to me. There are games I actually cannot publish playing with full audio settings enabled. That is ridiculous no matter your views on the DMCA, and I'd even go farther and say it's completely ridiculous that I cannot use audio I have purchased or somehow leased on my own content. Why does it have to be this way? Someone can try to convince me this is somehow sane or necessary, but I really doubt it.
shakna 16 hours ago [-]
As things stand, there's a difference between purchasing for personal consumption, and for publishing. That's been standing, for a very long time. It might be as old as copyright itself.
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.
JohnMakin 15 hours ago [-]
We've had the capability to detect audio for a long time. What changed suddenly in the last few years to deploy/enforce this at scale? Certainly not any improvements to detection. I've made a whopping total of $46 in something like 12 years on these platforms. Something tells me this level of enforcement is ridiculous and against the spirit of the law, and I'm certainly not an expert on the DMCA or a lawyer, but I'd be willing to wager a lot that this strict interpretation is misinterpreted. No one is submitting any takedown requests to this content, which to be clear, averages like 1.3 viewers and has less than a few thousand follwers. And when I describe in-game audio - I mean literal 2-3 second song clips like "barbie girl" song happening when you score a goal in rocket league will get your VOD DMCA'd and you can't upload it to YT. That is a newer thing. You really can't view the last 20 years of DRM and the way it's played out, and say something like "this is how it's always been, now automation." That doesn't add up.
mystified5016 15 hours ago [-]
Someone invented a system that makes it trivial for bottom feeding lawyer types to send frivolous notices. They feel like they've accomplished something.
That's the long and short of it. It suddenly became trivial to do and the consequences won't be apparent for quite some time, so there are no consequences as far as the lawyers and accountants are concerned.
1propionyl 5 hours ago [-]
A modest proposal: sell "streamer" licenses for a game that include audio/video watermarking features, or require an active internet connection and redisplay a sequence of numbers like a security key over the corner of the screen. Any footage without this would be taken down automatically.
Publishers could charge upwards of $200 for these. Larger publishers could offer package subscription deals for you to be able to stream content from their games.
shakna 3 hours ago [-]
Some governments [0] and IP holders [1] already offer this.
There's some back and forth about the exact underlying licensing, without an industry standard just yet - free streams are sometimes exempt, or require a partial license.
Some games have a "don't play licensed music" setting for streamers.
protoster 16 hours ago [-]
My guess as to why it's necessary to nuke all potentially copyright audio is that the platform is liable for infringement, and as a result they have a policy to shoot first and ask questions later. This is justified because in overwhelming majority of cases the streamer does not have a license for the audio.
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.
JohnMakin 16 hours ago [-]
> This is justified because in overwhelming majority of cases the streamer does not have a license for the audio
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?
zamadatix 15 hours ago [-]
As much as I don't like the current rules either "I never got a notice until recently" is a very different thing than "It was fine until recently".
JohnMakin 15 hours ago [-]
It was fine until recently. Crossposting another reply:
> We've had the capability to detect audio for a long time. What changed suddenly in the last few years to deploy/enforce this at scale? Certainly not any improvements to detection. I've made a whopping total of $46 in something like 12 years on these platforms. Something tells me this level of enforcement is ridiculous and against the spirit of the law, and I'm certainly not an expert on the DMCA or a lawyer, but I'd be willing to wager a lot that this strict interpretation is misinterpreted. No one is submitting any takedown requests to this content, which to be clear, averages like 1.3 viewers and has less than a few thousand follwers. And when I describe in-game audio - I mean literal 2-3 second song clips like "barbie girl" song happening when you score a goal in rocket league will get your VOD DMCA'd and you can't upload it to YT. That is a newer thing. You really can't view the last 20 years of DRM and the way it's played out, and say something like "this is how it's always been, now automation." That doesn't add up.
I'm not exactly a big fish here. I don't make money. There is no takedown request, nor would there ever be, because it's silly.
zamadatix 12 hours ago [-]
Again, the absence of a negative consequence at the time cannot be used as evidence something was actually fine to do, only that it was possible to get away with. That's regardless of whether it was actually truly fine or not.
If a new automated speed camera catches you on a road you've been speeding on for 7 years it doesn't mean speeding used to be fine it means you'll now receive consequences for doing things which were never fine to do! It also doesn't mean the speed limit always used to be the current value or anything like that. This is because "when regular enforcement began" has no causal relation one way or the other about what used to be fine or whether that was different than what's fine now. It is only an effect, one where "what was fine changed" is only one possible cause.
JohnMakin 12 hours ago [-]
I don’t think you understand how the DMCA works or what it was intended to do - again, these are not takedown requests, as is the normal mechanism here, which there are guidelines for - this is platforms preemptively deciding for potential dmca takedown requests to takedown/censor content. If your position is that every single piece of content should never be hosted in fair use online, that is not only not how copyright law works, it’s not how the DMCA works, and I’m not sure how to progress this discussion further since we seem to have a fundamentally different understanding of how the law works, or what this thread is even about.
To trivially prove your point wrong - I actually do have the right under fair use to make content of my own with copyrighted material. This has literally always been ok. Platforms are taking these actions to protect themselves from potentially hosting copyrighted content on their platform that would not consistute fair uses, and since I, a user of their platform, have to abide by their policies, it's their decision. Assuming we are now on the same page here, continuing your speeding ticket example - this is not so much like that, as getting pulled over in a labeled 40 zone and the cop goes "well, we didnt know if you'd be breaking the law later or before this, so just to be safe, here you go" or, "actually that's not really the speed limit." take your choice here, they both apply.
So yea, it has always been ok.
zamadatix 5 hours ago [-]
My comment isn't in regards to how the DMCA is supposed to work or what content I'd like to restrict from hosting online. If you've gone that far you've already long passed my point and seriously misinterpreted my opening statement "As much as I don't like the current rules either".
As the other commenter mentioned, my point was having done something for many years does without receiving a notice does not inherently imply it was fine to do all those years prior. That does not mean I agree that's how large hosting platforms should work, just that their stance has always been "fuck what the user should be able to easily do with content" rather than some new policy the day you got your first notice.
prmoustache 10 hours ago [-]
nope it hasn't.
People have been used to infringe copyright on the internet for decades but this has never been right.
If you want to be able to share stuff you don't own the right for, change the laws.
dim13 13 hours ago [-]
I once recorded an half-hour drive and uploaded it to YT as private video for my own convenience. Got immediately a copyright claim about radio playing some music in the background.
quakeguy 15 hours ago [-]
There are games which, via menu settings, allow you to disable dmca‘ed music for the purpose of streaming and uploading your plays.
Control is a game that has this iirc.
BlueTemplar 12 hours ago [-]
You can just ignore the DMCA claims, are you really afraid of getting sued ?
Meanwhile if you're still using platforms to host these videos, and not something like PeerTube, you're part of the problem.
jasomill 6 hours ago [-]
You can just ignore the DMCA claims, but your service providers cannot, at least not without the risk of assuming legal liability themselves.
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).
juped 14 hours ago [-]
That's not the DMCA (a 90s law), though.
skrebbel 18 hours ago [-]
When DMCA was proposed, the internet was up in arms predicting exactly this sort of stuff. It was a ridiculous law then and it is now.
grecy 15 hours ago [-]
Absolutely yes. Ridiculous for you and me, and absolutely perfect for multi billion dollar corporations to “protect” their profit streams.
yyyyz 17 hours ago [-]
[flagged]
ndriscoll 16 hours ago [-]
The DMCA predates Napster, Gnutella, and Bittorrent. It did nothing to prevent piracy, which exploded in the years after it was passed. Low-enough cost convenient enough subscription services moved people away.
KevinGlass 15 hours ago [-]
Don't feed the troll. If you look at this account's comments it's just inflammatory statements.
thayne 15 hours ago [-]
Is this sarcastic? There is still lots of piracy, and streaming services that made it more convenient to consume content, like Netflix and Spotify did far more to reduce piracy than DMCA did.
And quite a few people have gone to jail, including for creating ways to circumvent DRM, which wasn't illegal before DMCA.
kbolino 16 hours ago [-]
And now the Internet is largely a sterile place where the primary business model is built around advertising, selling "data" to "partners", and exploiting gamblers and addicts, while the companies most "saved" from piracy spend hundreds of millions of dollars every year to make increasingly unwatchable, unlistenable, and/or unplayable crap.
I can imagine worse outcomes, but I can certainly imagine better ones too.
gjsman-1000 17 hours ago [-]
If you read between the lines in the article, YouTube literally just said 94% of takedowns are real.
jedberg 14 hours ago [-]
The DMCA is totally broken, and has been from the beginning. There are no consequences for anyone making a fake claim. However there are severe consequences for someone who receives one and doesn't take action. There are counter-claims processes, but that puts a heavy burden on both the creator and the platform.
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.
prmoustache 10 hours ago [-]
Please define severe. At worst your account on a platform is deleted. This is not severe.
jedberg 5 hours ago [-]
That's pretty severe if your entire income is from said platform. And I was talking about severe consequences for the platform, not the creator.
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.
nfriedly 16 hours ago [-]
Nintendo's problem is that this was fairly believable because it lines up pretty closely with their own past behavior. Nintendo regularly drags some of their biggest fans through the dirt with bogus copyright claims and other legal nonsense.
miki123211 12 hours ago [-]
I'm surprised Russia / China / North Korea aren't using this process against dissidents and activists. If you're not reachable by American law enforcement, it seems like such a low-effort way to remove any content off the internet that you don't like.
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.
ternnoburn 17 hours ago [-]
I worry about let's plays (especially let's plays without commentary). They pretty clearly exist in a "yes, this is copyright infringement but yes, they are generally considered positive for a game" space.
The moment some game creator decides to test this will get very interesting. Not good interesting.
> 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.
namrog84 15 hours ago [-]
My first very ever attempt at making a let plays video.
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
jandrese 12 hours ago [-]
It was for the music wasn't it? The music industry is extremely efficient at flagging videos to claim the revenue.
Wohlf 16 hours ago [-]
Already happened a few times. Japanese streamers have to ask for explicit permission to stream games so they play a lot of western games that allow it, Nintendo didn't allow let's plays for a while, and a game developer didn't like a popular youtuber (pewdiepie I think) and did takedowns of said youtuber playing their game.
deletedie 12 hours ago [-]
Nintendo (and some others) used to do this in the early days of Let's Play. People stopped doing Nintendo Let's Plays for a while until Nintendo somewhat relented.
17 hours ago [-]
ferbivore 17 hours ago [-]
Why do you think a video capture of a computer program would infringe the copyrights of the program's creators?
yuliyp 16 hours ago [-]
A video game contains text, images, videos, and/or audio which are copyrightable, even if the game mechanics nor the player's decisions themselves are not copyrighted by the creators of the game.
seventhtiger 8 hours ago [-]
Games are incidentally computer programs, but what's relevant is that they're audiovisual content. Video capture of video would infringe on copyrights which is what video games are.
do_not_redeem 17 hours ago [-]
It's not immediately clear to me that this is true. Video games are designed to be played interactively. Streaming a single playthrough via a non-interactive medium strikes me as transformative.
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?
Uehreka 17 hours ago [-]
> Video games are designed to be played interactively. Streaming a single playthrough via a non-interactive medium strikes me as transformative.
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.
onionisafruit 16 hours ago [-]
Years ago somebody at Kinko’s refused to make copies of a draft software manual because it had screenshots of our software’s Windows interface. She said it would violate Microsoft’s copyright. This led to a fun discussion of how copyright on rectangles would even work. Obviously this wasn’t Kinko’s official stance. Just one obstinate, over zealous employee.
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.
webmaven 13 hours ago [-]
> Obviously this wasn’t Kinko’s official stance. Just one obstinate, over zealous employee.
You might think that's obvious, but you'd be wrong. Software publishers were cracking down on duplicating manuals as a means of trying to curb software piracy.
I can practically guarantee that the "obstinate employee" was given clear direction by their manager on the subject.
Though you do have to keep in mind that depending on when exactly this happened, Kinko's might still have been a collection of hundreds of largely autonomous regional partnerships, each of which could set their own policy.
jasomill 6 hours ago [-]
I once had a Kinko's employee, in consultation with the manager on duty, refuse to slice the binding off a textbook because "copyright".
They were, however, willing to three-hole punch the resulting pages if I removed the binding myself.
Later that day at another, nearby Kinko's, an employee, who happened to be the manager on duty, cut and punched the pages with no questions asked other than "have you seen our selection of binders and report covers?"
This was around 2008, so many years after the corporate consolidation, subsequent acquisition, and rebranding as FedEx Kinko's.
mysteria 15 hours ago [-]
> Would you say a screen capture of Microsoft Excel is also copyright infringement?
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.
This isn't anything new and unique to video games. Generally this is considered a performance. No different than copyright protecting a performance of sheet music or a play. Even dance choreography can be copyrighted.
Jarwain 17 hours ago [-]
Some video games are a fairly linear progression where observing a single playthrough can give up the bulk of the story.
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
101008 19 hours ago [-]
The system is broken and I can't see a way to fix it. Maybe pay to send a takedown notice?
helpfulclippy 18 hours ago [-]
Fraudulent claims — those in which the filer knew or should have known that they did not hold any copyright being infringed upon nor were they duly authorized to act on behalf of another party whose copyright was being infringed upon — should be treated as such, with exposure to civil and criminal penalties for the individuals involved as well as their employer.
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.
stackskipton 17 hours ago [-]
No, just enforce the DMCA. Youtube has setup this fake DMCA system where they are acting like they enforcing DMCA but not actually.
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.
mdasen 16 hours ago [-]
Is YouTube playing a bit loose with the DMCA's requirements here?
* 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))
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.
stackskipton 13 hours ago [-]
They have to comply with DMCA. However, YouTube commonly strikes stuff without DMCA claims or when they get DMCA claim, they remove the video and will not give video owner a chance to counter claim. They will just say "Yea, we got DMCA but now we are exercising our provision to refuse to host anything we don't want to so video is never going back up."
cmeacham98 15 hours ago [-]
> You can't just say that you don't want to host any content that goes through a counter notice.
Why not? (at least legally speaking, it'd be a PR disaster I'm sure)
YouTube is not obligated to host any videos on their platform and US law allows for businesses to discriminate for almost any reason (except specific protected classes like race or sex).
BlackFly 18 hours ago [-]
FRAND registry of copyrighted works. The registry would be provably connected to the creator, the royalty rate would be published ahead of time based on use. Infringement could be seen as accidental at first instance and royalty rates charged after discovery. Copyrighted work not registered? Then you are free to attempt your own single distributor network without legal protection, you can always register it some time after you fail. Charge the creator the royalty rate (or some fraction) they define in taxes to the registry so they don't set ridiculously high rates. Could also charge maintenance fees to automatically lower the rates that are so high that nobody wants to distribute at that price, heck the entire copyright limit could just be replaced with some compounding increase in maintenance fees over time. If the work is really successful they may maintain it longer, but unsuccessful works might just become moneypits very quickly.
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."
imglorp 18 hours ago [-]
DMCA is working exactly as intended: the asymmetry is the house advantage, keeping IP holders in the green and consumers in fear of their power. Any innocent casualties who were benefiting culture and society are acceptable losses. It's not going to change as long as they keep buying politicians.
ghaff 18 hours ago [-]
The problem with any loser-pays or adjacent system is that you inherently favor anyone with deep pockets even more than the system does today.
gruez 18 hours ago [-]
It's "fake" lawyers, so I doubt they have deep pockets.
ghaff 18 hours ago [-]
In this particular case but you make it hard for the fake "little people" to pursue claims and you make it hard for the real "little people" to do so as well while not really inconviencing large corporations at all.
gorby91 18 hours ago [-]
For larger and more litigious companies like Nintendo one would think YouTube wouldn't continue to accept takedown requests from random unverified users
LegionMammal978 18 hours ago [-]
The problem with that is, the law absolutely demands that the platform comply with any valid takedown notice, so YouTube isn't going to risk having any false negatives (due to internal miscommunications on Nintendo's side, etc.). It's made the responsibility of the uploader to challenge it with a counter-notice, but YouTube makes the process for those far more difficult than what the law says. (YouTube opens itself up to liability if it doesn't put the video back up upon receiving a counter-notice, but it's not like the uploader would be able to sue YouTube for much of anything.)
FireBeyond 14 hours ago [-]
In this case, the notice wasn't even quoting the right section of law! Is it still considered a valid takedown notice, then?
pavel_lishin 18 hours ago [-]
I think a sufficiently large company would still pay - it'd likely be a drop in the bucket compared to hiring a legal team. (A troll like the one in the article? Still, depends on the price.)
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.
IgorPartola 18 hours ago [-]
Not a lawyer but isn’t it your rights to protect your copyright? As in, if you file fraudulent notices, YT removes you ability to file more, then you have a legitimate notice to file, now you presumably can sue YT for denying you the right to defend your copyright.
pavel_lishin 14 hours ago [-]
> isn’t it your rights to protect your copyright?
Sure. But you don't have the right to harass people who haven't done so. I'm obviously not a lawyer, but I would imagine that at some point, vexatious litigation protections ought to kick in.
WesolyKubeczek 18 hours ago [-]
Tough shit, you shouldn’t have sent the three fraudulent ones then. It’s all in the terms of service you have agreed to.
onionisafruit 16 hours ago [-]
Youtube would probably be violating dmca safe harbor if they required claimants to agree to their terms of service.
IgorPartola 11 hours ago [-]
I mean I don’t disagree with you as a person. I am saying that YT might be hesitant to take this stance because the legal system might not share this sentiment. That’s for their lawyers to figure out.
pablok2 18 hours ago [-]
Look at Nintendo, they're creating opportunities even when they try to stop anyone from using their things.
dylan604 18 hours ago [-]
And who decides a claim was fraudulent? Historically, the fraudulent claims have gotten away with it while the target has at least had to remove the video or at worst had their accounts banned. Yet, nothing happened to the fraudster.
rcarmo 18 hours ago [-]
...until you spoof a new e-mail address. That won't scale well.
okanat 18 hours ago [-]
The DMCA takedown form can also request identity confirmation.
pavel_lishin 14 hours ago [-]
Require registered law firms to file these.
Yes, it'll cost money. But these fraudulent claims cost money, too.
mirekrusin 18 hours ago [-]
This thing should be based on some cryptographic proof/claim, it's really not that difficult to setup. More problematic part is to agree that everybody should be using "this" method, not "that" method.
JasserInicide 12 hours ago [-]
The system is broken and I can't see a way to fix it.
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?
lupusreal 18 hours ago [-]
10 year prison sentence for anybody sending fraudulent takedowns, including all lawyers involved.
Workaccount2 18 hours ago [-]
This is great until a small time artist gets put on trial facing 10 years for art used by megacorp, that is originally theirs but hard to prove it.
oneeyedpigeon 14 hours ago [-]
In this scenario, has megacorp proved the art is theirs? Because, if so, how, and if not, then surely the original claim isn't unambiguously fraudulent?
undersuit 18 hours ago [-]
How do I prove it's fraudulent? Hire a lawyer?
lupusreal 13 hours ago [-]
Crimes are prosecuted by the government.
undersuit 7 hours ago [-]
Never denied this fact.
ikekkdcjkfke 18 hours ago [-]
Impersonating with intent to damage is legal?
emilamlom 18 hours ago [-]
When the penalty for frivolous and fake dmca takedowns is basically non-existent, it practically is.
vezycash 18 hours ago [-]
DMCA works on a "takedown first, ask questions later" basis. Therefore, the solution is to flood YouTube and Google with massive, frivolous DMCA requests targeting the creators of DMCA like Microsoft, Apple, and Disney. They'll solve the problem if it affects them, maybe.
emilamlom 17 hours ago [-]
DMCA is for user generated content on platforms, so microsoft wouldn't have a lot of surface-area to target. That said, youtube gives preferential treatment to the largest creators and companies. Apple and Disney could easily call up their manager Jerry at Youtube and deal with frivolous takedowns. Small creators often have no direct contact with a human at youtube and have X as their best option for contact. Unless they know the process and have enough money for a lawyer, they're shit out of luck.
galleywest200 17 hours ago [-]
Large companies just sue people who make false DMCA claims, but small creators cannot afford to do that when large companies make false claims about them. It is a biased system.
Seems to me like it's still fraud, by definition? If you monetize your content you can prove loss, if a competitor is engaging in the fraud even better!
Those people being targeted by this troll should band together and sue.
fn-mote 17 hours ago [-]
> Those people being targeted by this troll should band together and sue.
Sue the troll?? Good luck finding them. How would you even begin? A ProtonMail email address? No way.
Sue YouTube?? Again, no way.
Until either YouTube or the US Congress thinks this is a large enough problem to deal with, it's not going away.
catapart 17 hours ago [-]
Maybe I'm just a malcontent, but for me this begs the question: couldn't this be used in reverse as activism?
Like, if enough people used enough fake accounts and started relentlessly submitting takedown requests on the biggest channels making the most revenue, not only would YouTube start to see the revenue issue, but the big channels would start making noise. Go after one troll sending the requests, another one takes its place. Seems like it would force YouTube to at least reconcile with this particular flaw in the system.
jjmarr 8 hours ago [-]
That sounds like what is happening in the OP. Someone is now directly harming Nintendo's interests by sending fake DMCAs.
This is wonderful. Automate this with vpns and ai and many individual volunteers and essentially make youtube take all of their content down, forcing them to rethink their policy.
Use youtube's bad policy against itself.
mg794613 16 hours ago [-]
They can easily stop it.
Question is, will there be enough incentive for them to do so.
pentagrama 15 hours ago [-]
A bit of topic, considering my English isn't good at all, the article title isn't missing an "if" here? I had a hard time reading that.
> A fake Nintendo lawyer is scaring YouTubers, and it’s not clear [if] YouTube can stop him
speak_plainly 14 hours ago [-]
This is an example of ellipsis, a common feature in informal English and news headlines.
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.
jacobgkau 14 hours ago [-]
As the other reply mentioned, another valid inference would be "it's not clear [that] YouTube can stop him." And as a general rule of thumb, you almost never actually need a grammatical "that"-- it's best to leave it out for brevity unless it's useful to distinguish the meaning of the sentence (typically when the parts before and after it are longer and the demarcation point could be interpreted several ways without it).
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?)
dylanpyle 14 hours ago [-]
Interesting question. This "feels" valid (as a native speaker) - the "that" or "if" is implicit - but not a rule I had ever identified before.
Do YouTubers have any recourse against Google or the faker? Seems like a false DMCA takedown would be a first amendment violation.
redman25 16 hours ago [-]
I had no idea spoofing email sender was so easy. Does anyone know of a good way to defend against this? I've always taken it for granted that if the sender was a domain that I trusted that I could trust the email itself.
wongarsu 16 hours ago [-]
DKIM and SPF are supposed to prevent email sender spoofing, but that requires the domain owner to set it up correctly age the receiver to verify the records and actually distrust or discard the email if they don't match.
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
redman25 7 hours ago [-]
Ah, so this is a failure on nintendo's part for not protecting their email domain properly.
It looks like a hater with a suck channel who has mental issues, but also knows how to use LLMs to generate fake lawyer letters
bedhead 11 hours ago [-]
YouTube can only stop if it the guy goes on Joe Rogan, then they can screw around with it with impunity.
toasted-subs 12 hours ago [-]
Maybe don’t bully anyone unrelated to your organization until active shooters become a regular occurrence at their own office building.
jokethrowaway 13 hours ago [-]
What about verifying the entity sending the request is legit?
An email @nintendo.com is not that hard to get for the legal team of nintendo
omolobo 14 hours ago [-]
So the first email was from a Protonmail account, and the second one was spoofed and obviously had incorrect headers. Are you saying Youtube doesn't check for these when processing take-down requests?
jandrese 12 hours ago [-]
What incentive does Youtube have to get this right? They have a major disincentive to ever push back on the content cartels because even one false negative could put them on the hook for trillions of dollars worth of damages, even if it was due to sloppy work on the cartel's part. It is no skin off of Google's back if they take their cut of the revenue from the wrong person, it's all the same to them.
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.
Rendered at 08:33:22 GMT+0000 (UTC) with Wasmer Edge.
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
Agreed that Youtube's system has problems with how long it gives claimants to respond to the initial content ID dispute and with people spamming false claims. It's definitely not a perfect system.
IIUC, YouTube's copyright system is not a digital implementation of the DMCA. It's an additional system that occurs before the DMCA notice/counter-notice process so the laws about the DMCA are moot because it's not a DMCA notice (yet).
I'd be curious to know if this has ever been challenged in court as an unconstitutional prior restraint. Pretty obvious problems if you get people e.g. issuing fraudulent takedowns 10 days before an election.
The bigger issue is that Content ID has always been a way for YouTube to side-step the DMCA in a way that's beneficial to big copyright holders -- channel operators assume risk fighting a takedown in a way that was never a part of the DMCA.
"Comply with the DMCA" is the issue. If the law requires user-generated content hosts to take down content and leave it down for 10 days or they lose a legal protection that keeps them from being incinerated by lawyers, that's effectively a legal requirement that they take it down for 10 days, i.e. a prior restraint, which is typically not allowed.
> The DMCA doesn't provide strict timelines (just that the initial takedown requires the provider to "act expeditiously", and nothing for restoration).
What's this about the 10 days in 17 U.S.C. § 512(g)(2) then?
Of course there are plenty of corporate authoritarian imperatives for why they don't. This comment is a thought experiment to demonstrate their complicity in how their system is routinely abused.
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.
You'd think that YouTube could at least categorize those who perform and record unambigiously public domain works and advise people using automatic match software to be _very_ sure there's an infringement.
Someday if I have time and patience, I may try to see what legal options I have against one of these deep-pocket companies who are making false (and libelous) claims about the recordings I have made. They're accusing me of theft, and it's provably false.
What's annoying is sometimes I'm on the road and don't get to responding to the request for several weeks.
So, the system exists to placate large rightsholders. It's not going to be modified to cause them problems.
[1]: https://en.wikipedia.org/wiki/Content_ID#History
[2]: https://en.wikipedia.org/wiki/Viacom_International_Inc._v._Y...
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.
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.
https://support.google.com/youtube/answer/2807684?hl=en
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.
The problem with the victim first mentality is that it causes you to underestimate how much agency people actually have (e.g. being unaware of how excessive tenant protections decrease the supply of housing available to low-income earners).
That said, again, how is a small creator, which at least several nines of all creators are, supposed to scratch up the legal and financial resources to fight massive corporate interests and industrial scale fraud? Why is the onus on them, rather than the platforms that enable this kind of behavior? Like, I'm not trying to be overly sarcastic here, I'm genuinely curious how you make sense of this in your head. Is it like "oh well, that's the way of the world, fuck em?" kind of thing, or is it based on some kind of sound principle? Because the way things are do not really help anyone, except behemoth media interests, and especially hurts the quality of content online, which if I can make an assumption, you and I both consume. Which also, ironically, hurts the very platforms that (I suspect) you are trying to stan for here. Make it make sense?
Believe it or not, I shitpost on the internet for fun. Sometimes, I get flagged for bullshit reasons (moreso Reddit than hackernews), and there's nothing I can do about it. Since it's for fun though, it doesn't really cost me anything outside some minor frustration.
> That said, again, how is a small creator, which at least several nines of all creators are, supposed to scratch up the legal and financial resources to fight massive corporate interests and industrial scale fraud?
This article is talking about a small-time copyright troll who is obviously pretending to be Nintendo. There is virtually no risk of calling their bluff because they obviously aren't going to commit identity fraud in court. Chances are, the troll has better things to do than to leak your personal information, but if you're worried about that, you can hire a lawyer to file the counter notification for you for a couple hundred bucks. I'm sure there are ways to do this yourself as well if you need to fight a lot of claims. Just spitballing here, but if you have a business owner friend, you can use their business address and have them be your representative and file on your behalf.
If we're talking about large corporations with armies of lawyers like real Nintendo, then there's not much you can do besides hiring a good lawyer and listening to their advice. For very straightforward cases, you can probably play lawyer yourself so long as if you do enough research and preparation (again, just spitballing). Also, it's not like Nintendo is unaffected by legal costs. In fact, any legal action will probably be several times more expensive for them than it would be for you. If they're pursuing legal action, they likely genuinely believe they're in the right.
It's unclear, to me, if youtubers could proxy this through an attorney.
Yes. An authorized representative is allowed to submit a counter notification on your behalf, so they would put their name and address instead.
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?
> 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.
The GP isn't asking for an audience. (Except if you mean "with the king", because that's exactly what the comment is asking for.)
> Well the copyright and the site are American so probably America
The GP didn't tell you who the copyright owner is. And Google is present in more than one country.
That said, yes, your last paragraph is a good hint. The world should just think very hard about blocking every large US business.
That's literally what copyright is
You can broadcast it. You don't have any kind of right to an audience to watch it. I don't even know what that would look like.
Then people want to use it in the sense of, you don't have a right against someone else interfering with your interaction with your willing audience, i.e. you don't have a right not to be censored by a government or corporate oligopoly. But that is a far less defensible proposition.
You can speak your mind. That doesn't mean YouTube is obligated to broadcast it for you, nor does it mean your speech is being suppressed if they choose not to.
The modern one where the adversarial video host is owned by the search engine with 90% market share that disfavors competitors in the search results? That's a different story.
Of course, the better solution there might be antitrust rather than common carriage requirements, but something's got to give.
YouTube isn't obligated to broadcast it, and in some cases it's debatable whether they're the ones suppressing it, but it is still being suppressed.
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...
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.
Someone who didn't have the rights resampled the original song and submitted it to a label (not sure that's the right term), and the label proceeded to DMCA every single video the guy had posted.
Over a thousand videos, having to gather all that info for all of them, go through the appeals process on all of them. For him it was a manual action one at a time. From the label they have an API to bulk initiate claims
You should have to negotiate a percentage fee, not assume the claimant is entitled to 100%
Additionally both sides of the dispute normally still want the monetization, they just disagree about who gets the proceeds. And because of the time value curve of YouTube videos (most make something like 90% of their revenue in the first few days), demonetizing has a good chance fo essentially erasing the revenue of the video for the creator.
This is likely why the only other ‘competitors’ you see are peering based or based on a subscription model. Neither of which can really compete with YouTube which really doesn’t need to *directly* make any money
YouTube ended up in that situation for two reasons. First, the original YouTube before Google bought it was playing fast and loose with the law and was in the process of getting sued over it after Google bought them. Second, Google wants to license Hollywood content for YouTube TV etc. So between wanting to settle the lawsuit and wanting to sell their soul and become Comcast, Google agreed to do a lot of this draconian BS that isn't otherwise required by law.
A competing service that just wants to be YouTube without being YouTube TV could plausibly follow the law without steamrolling the little guy quite as much.
Which means you need it to not suck or have some other countervailing advantage which is enough to overcome that, e.g. TikTok, but without the geopolitical issues of that one.
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.
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.
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.
That's the long and short of it. It suddenly became trivial to do and the consequences won't be apparent for quite some time, so there are no consequences as far as the lawyers and accountants are concerned.
Publishers could charge upwards of $200 for these. Larger publishers could offer package subscription deals for you to be able to stream content from their games.
There's some back and forth about the exact underlying licensing, without an industry standard just yet - free streams are sometimes exempt, or require a partial license.
However, there is movement towards this concept.
[0] https://ablis.business.gov.au/service/ag/music-streaming-and...
[1] https://ccli.com/us/en/streaming
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?
> We've had the capability to detect audio for a long time. What changed suddenly in the last few years to deploy/enforce this at scale? Certainly not any improvements to detection. I've made a whopping total of $46 in something like 12 years on these platforms. Something tells me this level of enforcement is ridiculous and against the spirit of the law, and I'm certainly not an expert on the DMCA or a lawyer, but I'd be willing to wager a lot that this strict interpretation is misinterpreted. No one is submitting any takedown requests to this content, which to be clear, averages like 1.3 viewers and has less than a few thousand follwers. And when I describe in-game audio - I mean literal 2-3 second song clips like "barbie girl" song happening when you score a goal in rocket league will get your VOD DMCA'd and you can't upload it to YT. That is a newer thing. You really can't view the last 20 years of DRM and the way it's played out, and say something like "this is how it's always been, now automation." That doesn't add up.
I'm not exactly a big fish here. I don't make money. There is no takedown request, nor would there ever be, because it's silly.
If a new automated speed camera catches you on a road you've been speeding on for 7 years it doesn't mean speeding used to be fine it means you'll now receive consequences for doing things which were never fine to do! It also doesn't mean the speed limit always used to be the current value or anything like that. This is because "when regular enforcement began" has no causal relation one way or the other about what used to be fine or whether that was different than what's fine now. It is only an effect, one where "what was fine changed" is only one possible cause.
To trivially prove your point wrong - I actually do have the right under fair use to make content of my own with copyrighted material. This has literally always been ok. Platforms are taking these actions to protect themselves from potentially hosting copyrighted content on their platform that would not consistute fair uses, and since I, a user of their platform, have to abide by their policies, it's their decision. Assuming we are now on the same page here, continuing your speeding ticket example - this is not so much like that, as getting pulled over in a labeled 40 zone and the cop goes "well, we didnt know if you'd be breaking the law later or before this, so just to be safe, here you go" or, "actually that's not really the speed limit." take your choice here, they both apply.
So yea, it has always been ok.
As the other commenter mentioned, my point was having done something for many years does without receiving a notice does not inherently imply it was fine to do all those years prior. That does not mean I agree that's how large hosting platforms should work, just that their stance has always been "fuck what the user should be able to easily do with content" rather than some new policy the day you got your first notice.
People have been used to infringe copyright on the internet for decades but this has never been right.
If you want to be able to share stuff you don't own the right for, change the laws.
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).
And quite a few people have gone to jail, including for creating ways to circumvent DRM, which wasn't illegal before DMCA.
I can imagine worse outcomes, but I can certainly imagine better ones too.
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.
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.
The moment some game creator decides to test this will get very interesting. Not good interesting.
> 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.
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
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.
You might think that's obvious, but you'd be wrong. Software publishers were cracking down on duplicating manuals as a means of trying to curb software piracy.
I can practically guarantee that the "obstinate employee" was given clear direction by their manager on the subject.
Though you do have to keep in mind that depending on when exactly this happened, Kinko's might still have been a collection of hundreds of largely autonomous regional partnerships, each of which could set their own policy.
They were, however, willing to three-hole punch the resulting pages if I removed the binding myself.
Later that day at another, nearby Kinko's, an employee, who happened to be the manager on duty, cut and punched the pages with no questions asked other than "have you seen our selection of binders and report covers?"
This was around 2008, so many years after the corporate consolidation, subsequent acquisition, and rebranding as FedEx Kinko's.
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.
https://en.wikipedia.org/wiki/File:Microsoft_Excel.png
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
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.
Why not? (at least legally speaking, it'd be a PR disaster I'm sure)
YouTube is not obligated to host any videos on their platform and US law allows for businesses to discriminate for almost any reason (except specific protected classes like race or sex).
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.
Sure. But you don't have the right to harass people who haven't done so. I'm obviously not a lawyer, but I would imagine that at some point, vexatious litigation protections ought to kick in.
Yes, it'll cost money. But these fraudulent claims cost money, too.
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?
https://www.techdirt.com/2024/03/29/bungie-youtuber-settle-l...
Those people being targeted by this troll should band together and sue.
Sue the troll?? Good luck finding them. How would you even begin? A ProtonMail email address? No way.
Sue YouTube?? Again, no way.
Until either YouTube or the US Congress thinks this is a large enough problem to deal with, it's not going away.
Like, if enough people used enough fake accounts and started relentlessly submitting takedown requests on the biggest channels making the most revenue, not only would YouTube start to see the revenue issue, but the big channels would start making noise. Go after one troll sending the requests, another one takes its place. Seems like it would force YouTube to at least reconcile with this particular flaw in the system.
Use youtube's bad policy against itself.
Question is, will there be enough incentive for them to do so.
> 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...
An email @nintendo.com is not that hard to get for the legal team of nintendo
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.