[ascagnel_]

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...

[sandworm101]

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.

[ascagnel_]

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.

[xsmasher]

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

[sandworm101]

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.

[protomyth]

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.

[dragonwriter]

"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.)

[protomyth]

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.

[dragonwriter]

> 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.

[sandworm101]

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.

[protomyth]

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

[dragonwriter]

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.

[maxerickson]

Content ID is not open to anyone though.

https://support.google.com/youtube/answer/1311402

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

[ascagnel_]

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.

[newjersey]

> 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?

[jonnathanson]

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.

[maxerickson]

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.

[mrgoldenbrown]

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.

[jonnathanson]

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.

[amluto]

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.

[icebraining]

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?

[amluto]

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.

[dragonwriter]

> 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.

[amluto]

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?

[illumin8]

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

[Klathmon]

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")

[illumin8]

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?

[nickpsecurity]

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.

[paulgb]

They do: http://googlepublicpolicy.blogspot.nl/2015/11/a-step-toward-...

[Klathmon]

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.

[arkem]

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...

[cmdrfred]

Mickey Nouse is unfortunately more powerful than Uncle Sam.

[richmarr]

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

[Shorel]

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

This is just a small taste.