When YouTubers Strike Back – DMCA and the case of YouTube’s failed dispute resolution system

YouTube ist für die einen Unterhaltungsmedium und für andere Einnahmequelle. Als Anfang des Jahres einem Studio aufgrund mehrerer Copyright-Beschwerden von YouTube die Einnahmen gestrichen wurden, wendete es sich an die Öffentlichkeit. Der Fall zeigt, wie problematisch der Umgang mit urheberrechtlich geschützten Inhalten auf YouTube ist und wie dessen Regeln ausgenutzt werden können. Für Farzaneh Badiei und Jonas Kaiser ist dies aber vor allem ein Versagen des Dispute Resolution Systems.

When a CEO publicly states that the company is „listening“ you know something’s up. So when YouTube’s CEO Susan Wojcicki was forced to tweet these very words this came as a result to a week-long shitstorm which formed under the hashtags #wtfu (Where’s the Fair Use?) and #ProtectYouTubers. At the heart of this public outrage is YouTube’s implementation of the fair use doctrine (or perceived lack of) and how this system is being abused. The doctrine allows, in short, the public use of copyrighted material „for purposes of commentary and criticism„. Even though the distinction between fair use and copyright infringement has always been problematic this was radicalized through the Internet. Especially on a platform like YouTube where users upload everything from illegal TV series episodes, lectures on copyright laws or dancing to a song from the radio, the lines between fair use and copyright violation can get fuzzy pretty quickly. Especially so since some YouTubers nowadays make a living with videos that are heavily based around the usage of copyrighted material (e.g. playing video games or criticizing movies). To counter the ensuing problems YouTube implemented a system which automatically checks for copyrighted material and since this system is obviously not perfect gives copyright owners the additional opportunity to manually claim the violation of their copyright. The latter, however, has often times been abused, for example, to silence criticism or to profit from the video’s monetization. So when ChannelAwesome, a prominent YouTube studio, recently came out and described their problems with numerous copyright claims that lead to 23 days without income several prominent YouTubers joined them and shared their own stories. In these, they all echoed the same troubles with copyright claims or DMCA takedowns (based on the Digital Millennium Copyright Act) and the possibility of getting their channel suspended which for most is their source of income, too. They do, however, also emphasize that their problem lies primarily not with YouTube per se but rather the dispute resolution system in place.

Based on ChannelAwsome’s experience, the current system of YouTube copyright claim handling (DMCA) breaches many of the normative criteria of justice in dispute management. Information about where to file the dispute is not accessible, rules change arbitrarily and without prior notice (affecting predictability), there are no time limits for providing an answer or it’s not followed and the accessibility of the copyright counterclaim is hampered by faulty counterclaim webforms. Even more problematic, the dispute management platform is not consistent (different users get different forms) and there is a word limit for DMCA – this obviously hampers representation and participation and can be considered unfair. The graph below, taken from Electronic Frontier Foundation (EFF) website illustrates the DMCA process:

It indeed seems as if YouTube is either not managing the disputes – or chooses to not get involved! But why hasn’t anyone at YouTube addressed this issue before? They have even gone so far as to offer legal support to videos that they believe represent clear fair uses which have been subject to DMCA takedowns, but do not get involved by providing a dispute resolution mechanism themselves. The answer might rest in the law itself. YouTube resolution system mirrors the US Digital Millennium Copyright Act (1996), Code 512 (g). Legally, copyright disputes on such platforms should be resolved by a court of law. As stipulated in g(3)(D) of DMCA,

„the subscriber consents to the jurisdiction of Federal District Court for the judicial district in which the address is located, or if the subscriber’s address is outside of the United States, for any judicial district in which the service provider may be found, and that the subscriber will accept service of process from the person who provided notification under subsection (c)(1)(C) or an agent of such person.“

Legal deterrents aside, YouTube might not want to manage the disputes as lawyers do not favor Dispute Management Systems. There are liabilities involved with such systems. They might have to adhere to a minimum standard of due process otherwise they can be sued. Even if their resolution is legally non-binding, they can still be taken to court. And they might be prone to class action lawsuits. Although in The Football Association Premier League Limited et al v. Youtube, Inc. et al court denied the certification of class action against YouTube in copyrights issues, challenging the dispute management system might not be denied.

Maintaining a dispute management system incurres a lot of costs and transaction costs on the provider. Does the benefit of providing a dispute management mechanism for YouTube outweigh its cost? It might not (for now). YouTube does not refer the disputes to be resolved by dispute management services, in other words simply outsource the provision of dispute resolution to some dispute resolution provider. This might be because of the liability issues that might arise from Code 512(g)(3)(D). Otherwise, referral of the disputes between the users of a platform in an copyright issues takes place. For example, eBay refers to the parties’ disputes about Feedback and Review system to Net neutral, an ODR provider.

What’s even more problematic: Competition does not help with incentivizing YouTube to provide dispute management either. YouTube has a dominant position in the online video market, so neither YouTubers nor customers can just leave the platform if they don’t like its copyright policy. Legally, YouTube is immune from being held liable for the content the users post on the platform. The DMCA obliges YouTube to have a takedown and notice process but it does not oblige YouTube to resolve the copyright dispute between the claimant and the defendant and refers the parties to court.

Overall, legally and economically YouTube does not have enough incentives to provide a system that resolves copyright disputes. The current law might even deter it from providing a dispute resolution mechanism let alone adhering to procedural justice. And the main question is: Are American courts suitable and accessible venues for taking global online copyright disputes? However, we have seen before that shitstorms and the publicity they usually bring may force companies to cave in. It remains to be seen though if this storm will bring YouTube to overthink their dispute resolution practices or if the issues will remain and the storm turned out to be in the teacup after all.

Syndicated by: https://www.hiig.de/when-youtubers-strike-back-dmca-and-the-case-of-youtubes-failed-dispute-resolution-system/

DMCA China do they follow?

Advising others on how to avoid DMCA is a fairly taboo subject at WHT. This suggests you're doing something wrong, and quite frankly a lot of us prefer to have the ability to file a DMCA when you steal our content, designs, etc.

In laymen terms they aren't, it is a USA made copyright law inherently, and well a lot of counterfeiting happens in China (we all know that).

Though to my understanding they don't have to comply, I suppose if you had the money you could pursue it but as far as my knowledge extends well it seems that way.

Had issues getting one off a server in Japan, wasn't easy.

unfortunate certain countries don't follow them

was ignorant about such knowledge

I thought the great China Wall etc was alot too many laws and strict enforcement of rules. I heard once they are a lot of rules for foreigners to start a webhosting industry in China

Generally, countries such as Taiwan, Hong Kong, China and Malaysia do not have to comply with DMCA laws. DMCA's generally only apply to the US and content hosted within the US, though some countries, like the UK also apply that to their services.

Syndicated by: http://www.webhostingtalk.com/showthread.php?t=1088540

Japan could DMCA in a more efficient way

The definitive version of Japanese law regarding copyright exists only in Japanese text. An official English-language translation of the law does not exist, but the Japanese Ministry of Justice has a website called "Japanese Law Translation"^[1] where one can search for Japanese laws and their unofficial English translation. IP laws such as Patent Act, CopyrightAct, Trademark Act, Design Act and Unfair Competition Prevention Act are included there.

Reliable information on Japanese copyright law in English is also provided by the websites of Intellectual Property High Court,^[2] "Transparency of Japanese Law Project",^[3]European Patent Office,^[4] and Copyright Research and Information Center (CRIC).^[5] For more details, see "External links" at the bottom of this page.

Syndicated by: https://en.wikipedia.org/wiki/Copyright_law_of_Japan

BLOGGER’S GUIDE TO COPYRIGHT AND DMCA

As a blogger, you put your heart and soul on the web on a regular basis. Whether you’re providing information, research, opinion, or entertainment, you likely spend a lot of energy making high-quality posts.

The same goes for all the tangential content you produce to enhance your blog like videos, ebooks, and courses. It’s natural that you want to protect your hard work against theft so it helps to be familiar with how copyright works.

In this post you’ll learn about intellectual property concerns that relate specifically to bloggers:

• What can you, as a blogger, copyright?
• Do you need to register your blog (or a post) for it to be protected?
• How can bloggers register for copyright?
• What’s “fair use?”
• How does copyright work if you’re blogging under a pseudonym?
• What’s the DMCA and how is it related to copyright infringement?
• What to do if you believe someone has stolen your content
• How do copyrights work internationally?
• What can you do if someone accuses you of IP theft?

Just so we’re clear upfront: we’re not lawyers so nothing in this post should be construed as legal advice. Our main goal is simply to answer common questions bloggers may have about their rights and to direct you to other resources that can help you.

Copyright Laws Do Protect Bloggers

Copyright is legal protection of a created work, also called intellectual property (IP). For bloggers, that means your blog posts are protected as well as other content you create for your blog — like ebooks, music, videos, software, podcasts, and photos — provided that you’re the creator of it.

Although ideas can’t be copyrighted, the way they’re expressed can be protected. To be copyrightable, content must be in its final form. That means your post entitled, Baseball Statistics Expressed as Poetry is copyrightable but neither baseball statistics nor poetry belong exclusively to you.

Should Bloggers Register for Copyright?

Once a piece of IP is produced in its final form (for bloggers, this means hitting the “Publish” button) its author automatically receives protection under US copyright laws. The protection is instantaneous with publication and no official copyright registration is necessary to claim your ownership of the content. In fact, you don’t even need the little circled-C symbol © to indicate your ownership.

Although bloggers aren’t required to file an official copyright registration, you may wish to do so. That’s because you can’t sue for copyright infringement unless you’ve officially registered your work. Short version: no registration, no lawsuits.

Can You Register a Copyright for Your Entire Blog?

Yes. However, only the posts published through the registration date are protected. Any posts published after that date will require additional registrations.

For practical purposes, this means you’ve got two choices for copyright registration:

1. You can regularly send in registrations for your entire blog (e.g., monthly or yearly).
2. Or you can register your most important posts or other content as you create them.

Can Bloggers Protect Their IP Without Registering?

Yes. Although you’re automatically protected, it doesn’t hurt to put in place various reminders to that effect on your blog. Here are some practical steps you can take to remind others that your work is protected:

• Include the copyright symbol © on each page of your site, along with your name and date.
• Create a special page about your reposting policies. You don’t need legalese – just clearly state what you’ll tolerate and what you won’t with regard to reposting your content.
• Sign up for a Creative Commons license.
• Configure your RSS feed so that it only shows summaries of your posts.
• Use Google alerts, searches, or a plagiarism site to notify you of plagiarized content.
• Add watermarks to your visual content indicating your name and website.
• If you discover that your IP has been stolen, you can issue a DMCA takedown notice (more on how to do this below).

How Can Bloggers Register for Copyright?

There are two of ways to register your blog’s various IPs with the US Copyright Office.

1. Online: The online method through the Electronic Copyright Office (eCO) is optimal for bloggers since your content is already digitized and ready for upload. Other benefits of registering online instead of using paper forms include a lower filing fee, faster processing, and status tracking. You’ll also need to upload the content you’re copyrighting.
2. Paper Forms: You’ll need to download, complete, and then print the registration forms and then mail them along with a computer disc containing your content or a printed version of it.

What Is “Fair Use?”

“Fair use” is a term bloggers should learn since it affects both their own blog content and content belonging to others which they might wish to use. Fair use means that it’s okay to use someone else’s work for the purposes of criticism, comment, news reporting, teaching, or research, as long as it’s validated after consideration of the four factors below. The four factors relating to fair use are described in detail on the US copyright’s website, but here’s a quick rundown:

1. What you’re using the content for — Fair use takes into account commercial or nonprofit use and whether you’re adding something new to the original IP.
2. The nature of the content — Using someone else’s content creatively can violate fair use more often than using it for factual work (like reviews).
3. How much content you’re using — Using large quantities of someone else’s work within your own content can impact fair use more than small amounts.
4. How your use impacts the value of the original work — If your use of the content displaces sales of the original work, you’ll run afoul of fair use.

Keep in mind that fair use also applies to your own content that others may criticize, comment, or report on.

How Does Copyright Work If You’re Blogging Under a Pseudonym?

So what happens if you’re writing a blog to support books written under a pseudonym — or for some other reason you’re not blogging under your real name? There’s good news and bad news about pseudonyms. The good news is that, yes, you can copyright your original works produced under a pseudonym. The bad news is that the length of time your copyright remains in effect is shorter than it would be if you registered it in your real name.

• Under your real name: Copyright lasts for the duration of your life plus 70 years.
• Under a pseudonym: Copyright lasts 95 years from the work’s first publication date or 120 years from its creation date, whichever is shorter.-

What’s the DMCA and how is it related to copyright infringement?

DMCA is an acronym for the Digital Millennium Copyright Act, a US law that protects digital copyrights, including the intellectual property of bloggers. The DMCA came into law as digital music pirating became epidemic in the 1990s. The new law gave musicians and music publishers a process whereby they could stop illegal sharing of their music.

What’s a DMCA Takedown Notice?

The main instrument of DMCA enforcement is called a “DMCA takedown notice.” Although it may sound counterintuitive, the thief isn’t the recipient of a takedown notice. Rather, the platform on which the stolen content is housed is notified that it is legally liable for “taking it down” off their servers.

It may help to think about the DMCA law as similar to the laws against selling any type of stolen merchandise. For example, a pawn shop owner can be arrested for selling stolen merchandise — even if the shop owner had nothing to do with the theft or had no idea it had been stolen.

What to Do If You Believe Someone Has Stolen Your Content

If you believe someone has taken credit for or otherwise used your content illegally and you’re both in the US, you can invoke the DMCA to bring order to the universe. Despite what most people think, most digital thefts aren’t typically settled by lawsuits. In fact, pricey lawyers are usually the last resort. In most cases, it suffices to notify the offender in writing that you own the copyright for the content in question and politely ask them to take it down.

However, if you’ve notified the offending party and they refuse to acknowledge your copyright to the material, you can issue a DMCA takedown letter to the third party hosting the work. In many cases, your letter will go to the offender’s web hosting company.

What to Do If Someone Accuses You of IP Theft

Being on the other side of a DMCA takedown notice is unpleasant, to say the least. If you’ve unwittingly reposted someone’s content without attribution, your first clue may be in the form of an email from the copyright holder. If, instead of contacting you directly, the alleged author first issues a DMCA takedown request to your web host, it can be a shock. In either case, the quickest way to solve the problem is to comply with their wishes and remove the content from publication.

On the other hand, if you believe that you are the sole creator and owner of the content, it’s probably best to get some legal advice. You can also check our resources section below for more in-depth articles online.

How Do International Copyrights Work?

Unfortunately, there’s no easy answer to this question. Every nation has its own laws and the methods and enforcement of copyright across all of them is fairly complex. However, the World Intellectual Property Organization (WIPO) exists to educate and elicit international cooperation about how copyright works between countries so it’s a great place to start looking at your options.

If you hold a US copyright and your content was stolen by a site owner outside of the US, things can get a bit confusing. In this case, you’ll definitely want some legal advice about how to proceed.

If your content is located outside the US and was stolen by someone who resides inside the US (or content is hosted within the US), then US copyright laws apply and you can issue a DMCA takedown request.

The Golden Rule

Most bloggers wish to achieve great things with their blogs. However, it’s useful to know that fame (or notoriety) can leave you at the mercy of digital thieves looking to make a quick buck off of your hard work. Although you don’t need to be paranoid, it’s good to know which avenues for redress are available to you if someone does try to nab your stuff. Additionally, the golden rule applies when considering using someone else’s work on your blog; treat their work as you would have your own work treated.

Syndicated by: https://blogging.com/copyright-dmca/

Drupal Planet Content Licensing Concerns

Hello,

I started contacting every person/organization that syndicates content onto Planet Drupal in an effort to gain community feedback about a serious legal issue that was brought to my attention by a DMCA takedown notice I received recently. I decided it would be better to just publish this issue here instead of contacting 366 other sites. I received this DMCA takedown notice by a particular website on Planet Drupal for syndicating Drupal.org content on my website. I feel this is not the way people contributing content to Drupal.org should be acting since Drupal.org's content is licensed under a Creative Commons Share Alike 2.5 license. Since then the Adsense ads on my site, which sometimes help pay for part of my hosting costs, have been disabled because of the complaint.

Should someone who is syndicating their content on Planet Drupal, part of Drupal.org and licensed as Creative Commons Share Alike 2.5, be able to continue doing so if they are going to file DMCA takedown notices for alleged copyright infringement to those promoting content on Drupal.org itself? I have never received a DMCA notice since I started archiving Planet Drupal in early 2009. I don't feel that someone who is going to physically tag their content on their website to be syndicated through RSS to Drupal.org should be able to file a DMCA takedown notice on someone who got content off of Drupal.org and syndicated it through RSS to their site. Is that even legal? Should someone like this be able to continue to syndicate their content on Planet Drupal? I did not receive any sort of DMCA notice from Drupal.org, so I am unsure why this author feels like they can send a DMCA notice on Drupal.org's behalf. Again, I syndicated content from Drupal.org, not their website.

Please let me know your thoughts on this matter. Once I have gathered enough information I will be able to figure out what my next steps are. If it stands that I am not following the content licensing guidelines on Drupal.org then please let me know what I should do to remedy that situation. Otherwise, I feel that this person's website feed should be removed from Planet Drupal for not abiding by Drupal.org's content licensing that they entered into while tagging their content Drupal Planet and thus syndicating it to Drupal.org. They did not have to tag the article for syndication to Drupal.org if they did not want to share it.

For reference and quoted from the Drupal Licensing FAQ page, http://drupal.org/licensing/faq/#q5.
"All content on the Drupal.org itself is copyrighted by its original contributors and is licensed under the Creative Commons Attribution-ShareAlike license 2.0. Sample code is also available under the GPL version 2 or later."

I would like some clarification on Drupal Planet content licensing at the very least here. If my research is correct, perhaps those publishing their content to the feed should be made absolutely aware of what sort of licensing agreement they might are entering into when publishing their content on Drupal.org through Planet Drupal. That way incidents like this don't happen in the future.

Syndicated by https://www.drupal.org/project/webmasters/issues/1123062

Reaction video deemed fair use in YouTuber court battle

After more than a year of battling in court, Ethan and Hila Klein, the YouTubers behind the H3H3 Productions channel, won a lawsuit filed against them by another YouTuber. Matt "Hoss" Hosseinzadeh—MattHossZone on YouTube—sued the pair after they uploaded a video in which the Kleins react to one of Hosseinzadeh's videos and criticize him in the process. Hosseinzadeh then sued the Kleins for a number of things, most notably copyright infringement for using clips of his video in their own.

The Kleins defended their video, stating the use of clips of Hosseinzadeh's video in theirs falls under fair use. New York Judge Katherine B. Forrest agreed and issued her ruling yesterday in favor of the Kleins, stating their video provides "critical commentary" on Hosseinzadeh's video and is not a substitute for it.

Hosseinzadeh sued the Kleins for misrepresentation and defamation as well, and the court ruled in favor of the Kleins in both of those claims. In April 2016, Hosseinzadeh submitted a DMCA takedown notification to YouTube for the Klein's video, and YouTube obliged by removing the video from its site that same day. The Kleins then filed a DMCA counter-notification citing fair use, which Hosseinzadeh said was a case of misrepresentation. Due to the copyright ruling in the Kleins' favor, the misrepresentation claims were dismissed. The court also dismissed Hosseinzadeh's allegations of defamation, stating the Kleins' video is "replete with 'non-actionable opinion(s).'""Any review of the Klein video leaves no doubt that it constitutes critical commentary of the Hoss video," Forrest's decision reads. "There is also no doubt that the Klein video is decidedly not a market substitute for the Hoss video. For these and the other reasons set forth below, defendants’ use of clips from the Hoss video constitutes fair use as a matter of law."

When the Kleins first revealed they were being sued, they saw an outpouring of support from fellow YouTubers and the YouTube community. YouTuber Philip DeFranco started a GoFundMe account to help pay for the Kleins' legal fees, and it raised more than $170,000. The Kleins posted a video last night explaining the ruling and expressing their happiness that fair use prevailed on YouTube.

But it's important to note that the victory doesn't apply to all types of "reaction" videos. The court's ruling essentially places reaction videos into two categories: those that edit-in clips of copyrighted content with clips of individuals reacting, commenting, and providing criticism and those that look like "viewing sessions" with no commentary.

"The Klein video is arguably part of a large genre of YouTube videos commonly known as 'reaction videos,'" the ruling says. "Videos within this genre vary widely in terms of purpose, structure, and the extent to which they rely on potentially copyrighted material. Some reaction videos, like the Klein video, intersperse short segments of another’s work with criticism and commentary, while others are more akin to a group viewing session without commentary. Accordingly, the Court is not ruling here that all 'reaction videos' constitute fair use."

In their explanation video, Ethan Klein calls this a "great distinction," as it protects channels like H3H3 Productions and similar channels like React, from The Fine Brothers, who post reaction videos featuring copyrighted material and commentary from multiple people. Videos that simply show a group of people watching the same video, with laughs or emotional interjections throughout, may not fall under fair use. Reaction videos are incredibly popular and have been for many years, but the quality of each video varies. Even if this decision only came out of one court, the District Court for the Southern District of New York, it's being seen as a win for YouTubers and online creators who want to use copyrighted material in transformative ways in their own content.

Syndicated by https://arstechnica.com/tech-policy/2017/08/youtuber-court-battle-results-in-fair-use-win-for-online-reaction-videos/