
YouTube's joke of a fair-use appeal process - shawndumas
http://www.jwz.org/blog/2014/10/youtubes-joke-of-a-fair-use-appeal-process/
======
codezero
This doesn't surprise me. People seem to think Fair Uses is a justification,
and not a defense. It's only something you can claim in a court.

YouTube is obliged to respond to claims immediately under the safe harbor
laws, but they are not obliged to continue pushing if a user disputes the
claim. At that point it should be handed off to the claimant so they can
pursuit further action and YouTube is off the hook.

YouTube is doing more work than they need to, but probably because it costs
them less effort and time to just side with copyright claim holders and act as
a thorn to users who would use the content.

Whether something is "Fair Use" is still pretty ill defined and depends on a
number of factors. I agree that this use would likely win in court with a
claim of Fair Use (and I am not a lawyer but I've had some experience
enforcing and responding to copyright claims, and have interfaced with lawyers
who do know about them). The problem is that it will only win when both
parties go to court, and the cost of that is high enough that the copyright
owner holds a ridiculous amount of power since it will always be monolith
versus one-off alleged-offender, which is the particular kind of bullshit
being smelled by jwz.

edit: My guess on why they do it this way rather than just handing it off is
that a great deal of effort is required to correctly identify users for
claims, and if YouTube takes on that responsibility, they need to make sure
they are not passing on the name/address of someone who is lying about their
identity. Rather than making people jump through hoops to get their actual
identity to pass to the copyright owner for litigation, they delay the process
as long as possible.

~~~
georgemcbay
YouTube is in a very difficult spot, but you can't help but shake your head
when you submit a home video using only a music clip that they offer within
their free-use audio library here:

[https://www.youtube.com/audiolibrary/music](https://www.youtube.com/audiolibrary/music)

...and you still get automatically flagged for a music copyright violation,
which has happened to me multiple times. Granted in both cases one
counterclaim submission (mentioning that I got the music from their free
library in the first place) was sufficient for them to stfu about it, but the
fact that this happens in the first place is a powerful example of how broken
the system is.

~~~
Aldo_MX
I got once a copyright claim on behalf of Antonio Vivaldi, at first I was like
"WHAT??? You can't be serious, who the •••• owns Vivaldi's copyright?!?!?!"

But the record label that issued the claim answered promptly to my
counterclaim and the video was restored in 24 hours.

My supposition is that record labels upload thousands of songs to the Content
ID system without checking them first, and they correct the copyright status
of songs with the counterclaims they receive.

------
opendais
Tbh, its probably related to the legal crap YouTube has had to deal with such
as:

[http://recode.net/2014/03/18/its-over-viacom-and-google-
sett...](http://recode.net/2014/03/18/its-over-viacom-and-google-settle-
youtube-lawsuit/)

[http://www.nytimes.com/2010/06/24/technology/24google.html?_...](http://www.nytimes.com/2010/06/24/technology/24google.html?_r=0)

"To a large extent, the case addressed past conduct, as Viacom said it was not
seeking damages for any actions since Google put in its filtering system,
known as content ID, in early 2008.

But Michael S. Kwun, a lawyer at Keker & Van Nest who previously worked at
Google, said the decision would ensure that Internet companies were not
legally required to develop such a system and could expect legal protection as
long as they took down content when copyright holders complained. “I have no
idea how much money YouTube spent on developing its content ID system, but if
that was required for any new start-up, you wouldn’t see any,” Mr. Kwun said."

Basically, Google did this to stop getting sued repeatedly as part of its
settlements. Unfortunately, it gives large corporations with lots of lawyers
an unfair advantage in the public space.

------
bithive123
Make sure you keep backups of anything you upload to YouTube because all it
takes is one DMCA claim and you'll never be able to download that video again,
even via Google Takeout. I learned this the hard way.

~~~
saidajigumi
_Make sure you keep backups of anything you upload [...]_

Truncating this makes it even better advice: you never have enough knowledge
or control to solely trust any valuable data or content to a service provider.
Technology failures, business failures, legal failures, etc., etc. All of
these can strike without warning. Keep at least three copies (e.g. a master
and two backups) of anything you really care about. An online provider only
ever counts as one of those copies, no matter their marketing claims.

------
Apreche
OK, so this article is actually factually incorrect, and so is every commenter
on here. We have appealed many videos on YouTube, and I can understand that
it's confusing, but let me explain. It all comes down to confusion about the
meaning of this text:

 _An appeal will result in either:

the release of a claim on your video

OR a legal copyright notification from the claimant. In this event your video
will be taken down and you will receive a copyright strike on your account. If
you have received additional copyright strikes, this may suspend your YouTube
account_

The article incorrect interprets these two options as:

 _Agree with us that you are a dirty lying dirty thief, and we 'll still allow
it to play in some countries.

Disagree with us, and we're going to take it down everywhere forever. And I
hope you know that this will go down on your permanent record._

This is incorrect. Here's what the two options actually are.

 _A: All claims are removed from your video. Nothing happens to you. Fair use
wins. Glory be. The person making the claim didn 't actually come after you
with lawyers.

B: The person who is claiming copyright actually gets lawyers and comes after
you for real. You'll have your chance to fight in the legal system. If you
lose, the video is taken down and you'll get a strike. If you win, well, you
win. Congratulations._

We have appealed many many videos. We only appeal ones we feel are fair use.
Ones that are obviously not fair use, we just say yes to start out with. EVERY
SINGLE TIME we have gone all the way on appeals, we have ended up with result
A. Not one single claimant on our absolutely fair-use videos has actually
tried to take us to court. The claims on our videos were released. The end.

It's just a bunch of scary text, but it's ok for it to be scary. If you push
it all the way your video will be up with no claims. But you're giving your
contact info so that they can actually sue you for real. YouTube is shielding
you from taking that very real chance that you could end up in court if you
aren't ready for that.

~~~
codezero
Do claimants get litigation strikes when they claim something that someone
rejects and they aren't willing to sue over?

It seems like this system would level out a lot of claimants had to agree to
pursuit legal action before making claims. Right now they have broad abilities
to make claims without backing them up which disproportionately punishes users
and creators.

I absolutely believe that people who violate the law should go to court, but
the current landscape puts the user in a very disadvantaged position and there
appears (at least externally) to be no long term "permanent record" for
litigious content owners w/r/t claims vs. rejected claims. At some point they
should no longer be able to make claims.

------
shalmanese
I don't understand the copyright holder's perspective on not allowing clips of
copyrighted content to exist on Youtube. Sure, if there's a full movie on YT,
there's a plausible mechanism for lost sales so request a takedown.

But if it's a 3 minute clip from a 90 minute movie, are they really believing
that someone who would have previously bought the movie is content to be
watching it in 3 minute snippets on the web?

It seems far more likely the opposite is going to happen which is that people
are going to be exposed to movies they've never heard about before and be more
pre-disposed to buy the full version. I know it's certainly happened to me
quite a number of times before and there's nothing more infuriating to me than
reading a blog post or reddit comment: "Check out how awesome Actor X is in
Scene Y in Movie Z: <youtube link>" only to find a "This video has been
removed due to a copyright complaint by XYZ LLC".

~~~
flashman
YouTube allows copyright holders to create policies like this:

"If someone uploads my infringing content and there is more than ten minutes
of infringement, take it down with an automated claim. Otherwise, put ads on
it and send me the money."

This allows the flexibility for clips to go up, but not full movies. Of
course, you have to have a sympathetic content owner first.

~~~
shalmanese
Right, so my question is, why would anyone opt for a policy more strict than
this?

------
magic5227
FYI this has been a big challenge even for music that has no copyright on it.
Musopen.org has collected a great deal of music, and even for recordings we
bought the rights to, they automatically challenge it!

It works well to scare people from leveraging even public domain resources.

------
guard-of-terra
I think we are long overdue to give YouTube the boot and switch over to
something else.

Unless we're promoting viral cat videos or k-pop clips.

~~~
coryking
Ever heard of Vimeo? They are great. Higher quality. Better content. More
control over your video content. Less BS copyright crap to work through.

------
ChuckMcM
This seems really lame on Google's part, kind of "we don't make enough money
on this stuff to care" lame. Which I don't believe for a moment.

Maybe its time to get Eric Goldman
([http://blog.ericgoldman.org/](http://blog.ericgoldman.org/)) involved, he
has a tone of expertise in this particular corner of the law.

~~~
justin66
There's also "we make so much money on this stuff we don't have to care,"
which seems to characterize a lot of their interaction with the end user.

------
rustyconover
"I for one welcome our new fair use overlords..."

Really it's ridiculously frustrating to use Youtube for anything that could be
copyrighted anywhere. If only swarm based video streaming services with WebRTC
were a reality[1].

[1] -
[https://github.com/feross/webtorrent](https://github.com/feross/webtorrent)

------
JacobEdelman
Legally speaking a 5 second clip is fine but a 20 second clip is beginning to
push it and several of them from the same franchise... I'm not saying it
should be this way btu the fx in a movie is a form of art and thus can be
copyrighted, not just the plot and other aspects of the movie.

~~~
maxerickson
I am not a lawyer, but I'm pretty sure that ideas about how long something can
be and still be fair use are more internet rules of wisdom than they are
anything else.

Of course it matters if you are only using a portion of a work, but the
context the work is being used in is a lot more important than counting the
seconds.

------
pavlov
I don't really get it. YouTube is under no obligation to host his content for
free, and that's probably spelled out in excruciating detail in the Terms of
Service.

If he thinks it's fair use, why doesn't he just put the video file on his own
server?

~~~
Dylan16807
Youtube pretends to be an unbiased platform for hosting any videos (outside of
certain categories like porn). But many of their processes have very unfair
bias in them.

Youtube is allowed to be unfair, but it's reasonable to complain about it.

~~~
pavlov
They're a corporation, so naturally they're biased towards their customers,
shareholders and business partners.

The important point is that the original poster doesn't fall into any of those
categories. If he wants his file to be hosted by someone who cares, a Google
subsidiary probably isn't that.

~~~
Dylan16807
This isn't about having a hard-working host for free. It's about basic
decency: having a system that doesn't intentionally roadblock people without
justification.

If Google doesn't want to host videos for free, fine. But it needs to be
honest about the service it's providing, no matter who the customer is.

(I say intentionally because content ID is known to be horribly flawed, and
they very deliberately have made appeals unworkable. If they would require
DMCA notices instead then appealing would be easy.)

------
mahouse
Why the "Jwz" in the title? Is this article more or less important because of
who wrote it?

~~~
shawndumas
that's the title that the bookmarklet gave it.

~~~
biot
From the HN guidelines:

    
    
      "If the original title includes the name of the site, please take it
       out, because the site name will be displayed after the link anyway."

~~~
shawndumas
point taken; thank you

------
lazyjones
High-quality, well-articulated writeup by jwz as usual, but it surprises me
that people who should know better still use the dump called youtube. Everyone
knows its handling of fair use and general copyright issues is a joke and the
MAFIAA (and consorts in other countries like GEMA) has been taking down all
kinds of innocent videos with ridiculous claims for years. Just use a
different site like vimeo that cannot afford the extreme level of ignorance
towards users Google displays in all their products and let youtube rot.

