[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.