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Fox 'uses' a gameplay video from YouTube, and removes the original with DMCA (torrentfreak.com)
363 points by juanito on May 20, 2016 | hide | past | web | favorite | 77 comments

I've said it before, and it bears repeating here: ContentID is not, has not been, and will never be the DMCA. It was developed by YouTube so Viacom would drop the suit that would likely have stripped YouTube's safe harbor protections under the DMCA.

ContentID takedowns are not DMCA takedowns. They operate on a different, much less strict standard. Anyone that works with YouTube can flag any video for any reason (see Scripps taking down a public-domain NASA video[0]), and the content is removed immediately without giving the initial uploader a right to contest it (it can be restored laterº. A YouTube user has way fewer rights under ContentID than they do under the DMCA. If you are found in violation of ContentID, you must fight both YouTube and the claimant to have your case heard under the DMCA.

[0] http://motherboard.vice.com/blog/nasa-s-mars-rover-crashed-i...

ContentID is the DMCA. It isn't a DMCA takedown, but it is a scheme designed to satisfy Google's DMCA obligations. Viacom was perhaps the fire behind its deployment, but it is the DMCA that dictates that the system exist.

s512(c)(1)(C) "upon notification ... responds expeditiously to remove, or disable access to"

"Expeditiously" is the key. That is, today, understood to mean now, not after the weekend or once Bill comes back from lunch. On a giant system like Youtube, it requires an automated system.

It brings YouTube into compliance with the DMCA, but it goes above and beyond. It automates only takedowns -- putting content back up is a process that must be manually done by a user. There's seemingly no human presence you can reach out to as an uploader. There's no way for a user to upload content and explicitly flag it as "I own this, if anyone claims copyright on it they're wrong" (see NASA having their own landing footage taken down by an overly-zealous Content ID match). There's no way for someone to upload a work as royalty-free or public domain (I've heard horror stories about that more than a handful of times).

Add to this YouTube's poor view of fair use (they've come under fire in the past for misrepresenting fair use in a copyright education video), and it's a recipe for disaster.

"upon notification of claimed infringement as described in subsection (c)(3),"

Ok, then s512(c)(1)(A)(iii)

"[Safe harbour applies] if the service provider— upon obtaining such knowledge or awareness, acts expeditiously to remove, or disable access to, the material."

"Awareness" would apply even absent a formal DMCA takedown pointing to the content. So after the first, Youtube is 'on notice' for repeats even where those don't get new takedown notices ... ContentID.

It would be great if articles would not say DMCA and be misleading about what is a YouTube process that has very little to do with the law. That way, people would focus on the real offender (YouTube and media companies) as opposed to assuming normal people actually have some legal protection and process provided by the DMCA.

I think the headline in the article and here is misleading and should be changed.

"Normal people" don't have any legal protection under the DMCA (at least, the takedown notice/counternotice provisions at issue here.) The DMCA processes (related to takedown notice/counternotice) are safe harbor provisions for information hosts; they don't provide anyone else any protection. All they do is allow hosts protection against liability they would otherwise have to content owners whose work is allegedly infringed by submissions (for the takedown provisions) and those uploading submitting content that is allegedly infringing (for the counternotice provisions.)

Under the DMCA, I get to file an actual DMCA counter-notification to put my content back up, not some arbitration by a 3rd party. Its in the law and can be used by normal people to protect their works. An actual false DMCA claim has a financial penalty.

> Under the DMCA, I get to file an actual DMCA counter-notification to put my content back up

No, under the DMCA, the content host has the option to let you do that after a takedown, and, if they choose to exercise that option, you lose any legal right to sue them for taking your content down that you otherwise would have had before considering the safe harbor.

But, since most use agreements with hosts are structured such that the host would never have any liability for taking down user-submitted content, this is pretty much a non-issue.

You had that right, up until the point you agreed youtube's TOS/EULA. And you are still free to bring a suit under the DMCA ... except you also agreed yourself out of that too.

Which is my point, the DMCA really has nothing to do with this, its all YouTube's TOS/EULA.

Well, the DMCA has something to do with in, in that the DMCA approach of adopting a safe harbor process rather than a mandatory process is exactly what encourages businesses to make other arrangements that differ from the DMCA process if by doing so they can reduce their costs and satisfy the key players from whom they would be concerned about litigation in the absence of the safe harbor, while neglecting the interests of parties -- e.g., most people that aren't big media companies -- to whom they would have no or insignificant liability without the safe harbor.

Content ID is not open to anyone though.


This particular video seems like a nice test case of the review system.

I haven't seen this link before; it's a great reference.

The issue comes from the second sentence of the second paragraph:

> Therefore, applicants must have the exclusive rights to the material that is evaluated.

YouTube does nothing to verify the exclusive rights, as far as I can tell.

> If accepted to use the Content ID tools, applicants will be required to complete an agreement explicitly stating that only content with exclusive rights can be used as references. Additionally, accepted applicants will need to provide the geographic locations of exclusive ownership, if not worldwide.

The big question here is what are the consequences of adding a reference that the applicant does not have exclusive rights to? Is it YouTube's discretion? What happens if Fox/Viacom/Sony/whoever decides to include a clip of public domain classical music in their reference? They don't have exclusive rights to that music, do they?

My charitable guess is that Content ID isn't available to everyone because of scaling issues with the vetting process for the database. While it's theoretically possible to open the floodgates to everyone, that would present a massive human resource challenge for Google. I have no idea how Google's vetting process works for those who meet the eligibility requirements...but I imagine it involves lawyers and background checks to verify that the ostensible copyright owner is who they say they are, and is indeed the owner of what they claim to own.

Setting a high bar for eligibility presumably cuts down on fraud, wasted cycles vetting obvious noise, and the need for an army of people to do the vetting and legal checksumming around the clock.

The little guy is collateral damage in this case, not the intended target. You could argue, hey, potato potahto, the net result is a system that favors the large content publisher and offers the little guy no chance to participate. But intent matters. If Google's intent is to manage scale, then hopefully Google acknowledges the unintended problems its solution creates, and it's working on a better solution. If Google's intent is indeed to favor the big publishers, then that's a different story.

I think it's very much potato potahto. The current (and pretty much any future) implementation is a business decision.

I actually don't find it all that troublesome. The big selling point of Youtube is that it is relatively easy to get attention there. That doesn't do much to create a situation where it is hard to get attention elsewhere.

That is overly charitable. Google does not vet Content ID claims to be sure that the claimer is actually the copyright owner. Lots of smaller content producers get takedown notices when a bigger player steals content, reuploads it, and then issues Content ID takedown notices to the original creator.

I wasn't saying they vet claims per se; I was saying they almost certainly have to vet people who sign up for Content ID in the first place. Which might explain why they limit signup privileges to known commodities. (Or at least might partially explain it).

YouTube has business and licensing agreements in place with some of these content owners. There is absolutely no way they aren't vetting signups for Content ID in at least some capacity. For one thing, how would they pay people their rev share for premium content clips if they didn't have reasonable assurance those people really were MTV, or NBC, or Sony Music, or what have you?

Now, is my overall explanation overly charitable? Entirely possible. I really have no idea what goes on with this process. All I'm doing is offering a possible explanation.

Which suggests a nice solution if Congress were to be reasonable: amend the DMCA to clarify that ContentID itself would invalidate safe harbor. In other words, require actual neutrality for safe harbor.

Thing is, Google owns the site, and presumably has the right to decide which videos it wants on its site. Unless one thinks they should never be allowed to take videos down, as disgusting or hateful they might be (except for valid DMCA requests), how would you draft that rule?

Strawman version: Google gets safe harbor if they are neutral as to what videos are on the site.

If they pay people for videos, no safe harbor on those videos. If they reject things for editorial reasons, no safe harbor.

This would probably be quite problematic. On the other hand, it would help address what I think is a big hole in free speech: almost add speech is mediated by companies, and those companies have no particular incentive to respect freedom of speech. Maybe the law should give them one.

> Which suggests a nice solution if Congress were to be reasonable: amend the DMCA to clarify that ContentID itself would invalidate safe harbor

ContentID is more acceptable to the only potential litigants against whom Google would care about the DMCA safe harbor against than is the process which makes available the DMCA safe harbor, so that wouldn't matter.

A safe harbor is a protection against legal liability which you otherwise might have. If you have a separate arrangement which is both lower cost for you to operate and more acceptable to the only people against whom you are concerned about using the safe harbor than the actual safe harbor process, you don't care about a safe harbor.

Not if ContentID invalidated your safe harbor with respect to other copyright holders. Frankly, that seems reasonable to me. If YouTube infringed my copyright, made safe harbor available to Viacom, and didn't make it available to me, why should YouTube have safe harbor against my claim?

Dear Google: This is about as evil as you can get.

IMO it's not that black and white.

If google didn't agree to the ContentID system, Viacom would have most likely been able to strip them of their safe harbor status.

And that means the end of Youtube.

Yeah, something needs to be done, but having humans review takedowns just doesn't work at this scale, and if they aren't extremely over zealous about taking things down, they will be shut down.

Google is under the thumb of Viacom and other big media companies, and there really isn't anything they can do about it except agree or close up shop.

(Mind you, I think that there are definitely ways that Google can improve the situation, and that they should be pressured to do so, but it's not as simple as saying they are "evil")

Even if it's true that they are under the thumb of the evil media companies, Google has billions in their war chest to fight legal battles like these. Why aren't they?

Apple seems willing to fight legal battles on moral grounds; why won't Google?

Google does fight them. They have lobbyists on the Hill. On other end are both media and software powerhouses that depend on copyright for lockin to their billions. The People, as usual, aren't doing crap about their rights. So, the weight of influence and resulting laws goes in a direction that's pro-owner of content (aka corporate owners).

Re Apple. You sure they were fighting that battle on moral grounds because the CEO said nice things? Apple's been happy to do similar things for Chinese, lie about need for Mac security, squeeze extra money using Foxconn workers' misery, reduce number of buyers by charging luxury prices, and so on. They're not ethical in the least. That is probably a greedy corporation rolling in money ensuring it will continue to do so by positioning itself as a private alternative to Android. It's... Marketing.

I'm not trying to call you or them out or anything, i'm just curious...

Are there any public examples of them doing this for someone?

Because that is a really awesome thing to pledge, but without public actions backing it up it's an empty promise.

Here's an article with an example (a video game review by Jim Sterling that was DMCA'd by the game developer): http://www.polygon.com/2015/11/19/9761654/youtube-fair-use-p...

Mickey Nouse is unfortunately more powerful than Uncle Sam.

I can think of at least... three... things more evil than this.

I think we will witness much more evil stuff from Google in the future.

This is just a small taste.

SmarterEveryDay told a story in one of his videos about slow-mo clip of tatoo machine in action being ripped from one of his movies by the large press publisher, Bauer, and reuploaded on Bauer's Facebook page. Then Bauer moved on to claim DMCA on his original uploaded by him on his Facebook page:


That sort of thing happens all the time too, as he mentions. Only he has the reach and audience to rightly raise a stink about it. Most who have their content stolen in this manner really have no recourse.

The damage is done, the money is made, and the perpetrators can just say, "whoops" and absolve themselves of any wrongdoing while they take their ill-gotten gains to the bank.

This was one of the main reasons I am no longer on Facebook. Because Facebook is happy to profit off of the creative works of others, without properly compensating them.

Until there is a financial penalty for wrongful use of the DMCA this type of thing will continue.

They use robots to create reports (maybe not in this case) because for them there is simply zero downside.

That downside needs to exist.

This is probably just Content ID.

So there the problem is that Youtube gives preferential treatment to their more profitable users, they don't have to submit a legal document to Youtube, they just flag the content and are done.

I bet there was never even a human in this particular loop.

Supposedly you risk jail time when submitting illegitimate DMCA claims. In practice the only case I know of is when YouTuber thunderf00t used that threat against another YouTuber (VenomFangX) to make him publish a video statement clarifying that his claims were illegitimate and he won't do it again -- but none of that ever ended up in court (because VenomFangX complied, before temporarily retiring from YouTube in shame).

EDIT: Of course the ContentID system probably circumvents that entirely because technically your content is taken down automatically rather than because of a DMCA claim. Even though the effect on the uploader is the same: impacting the monetisation of a video they may have invested a significant amount of time into. If anything it's worse because there is no built-in way to counter-claim or claim damages (without directly going to court).

The real solution would be to require a human to certify the infringement complaint - no more automated requests.

But that can't be left to the claimant. So Google should charge a fee for each complaint to cover the cost of the verification. But then you could make the company pay more simply by uploading thousands of infringing videos…

In any case a simple air date sanity check would have prevented this particular case.

By "certify", GP might mean "certify under penalty of perjury", where the specific wording (which would probably need some notes about certifying they had verified their ownership) is strict enough to give one a bit of legal ammunition against false complaints.

Exactly. Sorry if I wasn't explicit enough.

On a similar note a Game YouTuber, Jim Sterling (Jimquistion), was frustrated that when he put out videos with some clips of video games or other movies, companies would come in and claim ownership and monetize his videos. He didn't like that since he wanted to be ad-free and these companies would essentially force his viewers to watch ads that he wouldn't even get any money for. These large companies didn't care because it's free money for them.

So he figured out how to get around stupid contentID flags. He put in clips of videos from different companies and spliced them into his videos. This caused a couple of companies to claim copyright over his video, but when there are multiple claimants for one video, Google's system doesn't give any of them any ad money. So in effect he gets to continue to use clips while not having any companies monetize his viewers.

"when there are multiple claimants for one video, Google's system doesn't give any of them any ad money"

If that's true, then couldn't he simply file a claim of his own to counter a single company's claim?

Maybe? I'm not really sure. How hard is it to get into the contentID system?

I'm guessing part of the reason he did this was more for the humor of screwing with larger media companies.

There is no reason this kind of glitch should even be happening. There should be some kind of date attribute that gets attached to the ContentID data that Fox submits, and YouTube should reject takedowns for which that date is later than the date the video in question was uploaded. This is just ridiculous.

I agree that this should not be happening. But your solution is unworkable.

Upload priority is not proof of ownership or creation. If you upload one of Fox's movie trailers before they do, they should still definitely be able to take you down.

It's a plausibility check that could be used to flag things for human review.

Original clip was uploaded 8 years before Fox published their version.

Many TV shows are not on Youtube at all except as unauthorized uploads. Should Fox be unable to issue a takedown on an episode of the Simpsons that's been uploaded since before they uploaded a copy into ContentID?

It's not about the upload timestamp but about the time of creation. Fox could have said "we created this episode three month ago" when that's the time the episode was first pitched and it would still be fine.

>If you upload one of Fox's movie trailers before they do, they should still definitely be able to take you down.

This seems like a special case deserving of special attention. It doesn't seem like something that should be sloppily addressed by an algorithm.

I'm not sure if I understand the problem here. So either Fox will want to remove the trailer manually, or they will want to remove it automatically with ContentID. If they remove it manuallly, then there's no problem since what I'm talking about only applies to the automated approach. If they want to remove it with ContentID, then presumably they have already uploaded the ContentID data, in which case their upload date is still earlier, and they can take it down.

The only time this would be a problem is if the bootleg trailer were uploaded before they uploaded the ContentID data, and Fox wanted to then upload the ContentID data and have it removed automatically. I can't see why they would do this, however, since presumably they are reacting to the bootleg upload in this case, and can then simpply issue a manual takedown request.

A number of people are saying the same thing, but I'll just respond here.

>The only time this would be a problem is if the bootleg trailer were uploaded before they uploaded the ContentID data, and Fox wanted to then upload the ContentID data and have it removed automatically. I can't see why they would do this, however, since presumably they are reacting to the bootleg upload in this case, and can then simpply issue a manual takedown request.

Fox can issue a manual takedown, but they shouldn't need to. That's the entire point of the deal Youtube cut with the major studios that created ContentID. Fox uploads the videos they own, and then Youtube/ContentID finds all the infringers so that Fox doesn't have to pay a person to do it themselves.

This issue is obviously a special case where a clip from a video game, apparently sourced from Youtube, was excerpted in a network TV show. The network TV show - which is obviously protected - set off ContentID flags. Fox didn't set out to upload a Double Dribble clip to ContentID. This is an edge case.

The article then spuriously goes on to about the DMCA, but there's no evidence presented any DMCA takedown whatsoever. I don't even see any evidence of human intervention at all. If I had to guess, there's a setting in Fox's ContentID: If from Family Guy, block entirely.

It's unfortunate that this happened. It shouldn't have happened, but this is what inevitably happens when a technical solution (ContentID) is used to solve a social problem (piracy).

There should be an easy remedy for the video creator, and he is free to pursue copyright charges against Family Guy for using his video game clip in a TV show, if he thinks he has the rights to that clip. (I have no clue on that one.)

But this is a mountain being made of a molehill. Nobody's rights are being infringed. This is the deal you make when you sign on with Youtube: the big studios have the most power. They're only one player; if this deal irks you (and there are definitely legitimate reasons it would) there are plenty of other ways to host video.

Then there could be a time delay of X months after which automated take downs aren't done.

Their proposal wouldn't ban Fox from taking down legitimate infringements as you suggest. It would simply not automatically take down videos which appear to violate the laws of time and space.

I don't believe it is a glitch. Youtube's takedown system seems designed to allow media companies to exercise arbitrary power over any content they want, probably to keep them from suing Youtube into oblivion for hosting copyrighted content.

And now that Youtube is moving into licensed, subscription-based streaming with Youtube Red, channels using third party content under fair use are interfering with Google's potential future revenue, regardless of their actual legality. I still believe "hiccups" like the recent wave of let's play and reviewer channels disappearing mysteriously are an attempt by Google to drive those channels away, to make the site look more attractive for media companies and their IP.

Yeah, if all said were true, YouTube is as much at fault as Fox is.

The currently implemented ContentID system isn't really at fault here. It is being effective in protecting Family Guy content appearing on Youtube. It looks at the reference video, analyzes it, and flags every video that matches the reference video by a certain percentage, and deals with it.

The real problem here is that FOX copied the exact contents of an existing 7-year old youtube video in their Family Guy episode (maybe the creators tried to give a tribute). The ContentID rules state that you should have exclusive rights to the content in a specific region, which they don't.

Thinking about this again, the ContentID system is also at fault here: it is blatantly ignoring the upload date for video's on youtube. I don't know how the ContentID system works, but you should at least give the date on which the copyright of the reference content (=Family Guy episode) starts. If FOX would try to upload the Family Guy episode, the ContentID system should give a warning that it uses already existing, older content. Now Youtube/Google, that can't be so hard to implement, now can it?

Also, Youtube should handle complaints from incorrect takedowns a bit better. Like keep a reputation on parties using the ContentID system. Say you start at 100. If you do incorrect takedowns, your reputation decreases. If you do correct takedowns, it rises (come up with some statistical efficient tool)_. If it falls below 50, you are excluded from the ContentID system for breaking the rules, or somebody could sue the party or something. Make it transparent (yearly report) to the public, so they can judge.

This is eerily similar to the infamous "You made this?...I made this" comic.

Apparently historically accurate.

Also the irony of responding with an uploaded video of a copyrighted show owned by a major studio is delicious. :)

If anyone hasn't seen it, I believe this is the one you're referring to: http://i.imgur.com/snLplqq.jpg

Link to the original and not some reupload to imgur: http://nedroidcomics.tumblr.com/post/41879001445/the-interne... :)

I think linking to a re-upload is weirdly in spirit with the comic's sentiment.

Though I never quite understood which interpretation was intended:

* Creator shows their work to someone, who goes on claiming it's their own work.

* Someone shows "their work" to the original creator, who then realizes it's actually their work.

I never even considered the second interpretation, which now seems even more appropriate than the first.

I only hope the original author is aware and supportive of the meta-sentiment of the re-upload/re-whitemark response.

The same kind of thing happened to NASA back in 2012 with some news group. Both little and big names can screw people over with this.

Youtube really needs to find a proper solution to this problem. But at least they acknowledge it and and are taking steps to improve.


I know that my argument would not stand in court, but when I read this, it makes it harder for me to be against illegal downloading.

Although I prefer buying content directly from the artist, like Louis CK does. As long as it seems "fair", I buy.

That where piracy comes from: a rational argument about a skewed market.

I agree. An argument doesn't have to stand up in court to be right or moral and I believe yours is both. If FOX can abuse Youtube policies and the DMCA, I see no reason why people shouldn't abuse FOX and pirate.

Wow, I never considered the combination of a large broadcasting company that produces original content using sampled material from the internet and then automatically sending ContentID takedowns for said sampled content. It's like a takedown feedback loop.

So how often are these bogus takedowns rectified? Will this be? Seems blatantly easy to fix if someone at YouTube just gives it a 5 minute look.

This is ridiculous...

Maybe fox contacted NES and aquired the rights to double dribble and the clip.

Konami in this case owns copyright to the game, and ironically the original YouTube poster might have a (weak) case against the original aired Family Guy episode and Fox.

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