I never understood how that requirement is compatible with the First Amendment. How is that not compelling speech by the OSP?
OSPs don't have to host content they don't want to host... but if content gets taken down, and then a counter-notification is submitted, the OSP is then required to restore (read: host) the content?
My understanding is that it's a Faustian deal: YT is indemnified by removing its own agency in this regards. If it just follows the rules, it gets a pass. If it interprets the rules it doesn't.
If YouTube didn't have you agree to TOS before uploading a video, you may have a point here. In it's current state though, YouTube has carte-blanche permission to remove anything they want, not just disagreeable content. The concept of free speech does not give you the ability to renegotiate service agreements, unfortunately.
My point is that in some cases, the DMCA appears to require OSPs (YouTube, in this case) to restore content that has been the subject of a DMCA takedown.
I don't see how that is compatible with the idea that YouTube has the right to not host content on their website. It's their website. How can a counter-notification take away - even for an instant - YouTube's right to control what's on YouTube?
They can certainly demand it, but there's no recourse if Google simply says they don't want to host it. Nobody is guaranteed a spot on YouTube by the first amendment, and DMCA doesn't override the pre-existing precedents of contract law. If they truly demand a restoration of removed content, then they are free to do so with servers that they pay for.
Conversely then, how does the DMCA not violate the first amendment by silencing speech? Is there actually any difference in the direction of application of this regulation?
The DMCA takedown system is an exemption to copyright law; violate it, and you lose its safe harbor and go back under ordinary copyright law. Copyright law does not violate the First Amendment because the Constitution specifically allows for it:
> To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries
and the First Amendment does not override it; it is specifically worded "Congress shall make no law".
The actual rule is that if YouTube takes something down in good faith belief that it is infringing, they are protected against any liability for any claim over taking it down, but only if the follow the restoration procedures as specified.
If they fail to do that they simply lose the protection of liability if you (or anybody) sues them over taking the work down.
So you cannot successfully sue them over say lost revenue for a fraudulent takedown notice if they follow the correct counternotice procedure. If they don't, then they might be liable, but most likely something in the terms of service or similar would prevent your suit from being a winning case anyway.
However, in other scenarios like where the provider was contractually obligated to keep the content available, if they fail to follow the counternotification procedures properly, you could potentially sue the provider and win.
Does it matter in practice? The OSP can restore the content and then immediately remove it again for a different reason, and I imagine that would honor the counter-notification.
OSPs don't have to host content they don't want to host... but if content gets taken down, and then a counter-notification is submitted, the OSP is then required to restore (read: host) the content?