[smsm42]

Basically it looks like YouTube is too scared of lawsuits to acknowledge any fair use rights exist at all. Either you agree with ads, or your content is getting removed, the whole appeals process may work only if the content is not actually copyrighted, but is completely useless for fair use grounds as claimant can just repeat their claim of copyright ownership (which is true) and have it deleted anyway.

[anigbrowl]

That's absurd. Youtube provided extensive avenues of dispute and appeal. I think Lionsgate is wrong in this case (although I'm not wholly sure, because using their source material for ~30% of the video is pretty substantial in my view), but Youtube isn't there to act as a court or arbitrator. by law, it has to respect the claims of copyright holders. It is not the agent of those seeking to use copyrighted material on fair use grounds. The authors dispute is with Lionsgate, not YouTube.

[timbre]

Youtube is respecting the claims of copyright holders a lot more than it has to by law.

1. The entire pre-DMCA-takedown process (the first round of complaint and appeal) is not required by law. I think it's a good idea in general (it's nice to have a low-stakes option before you launch into the DMCA process) but the immediate presumption that the complainant is in the right is offensive. Something like "we will start displaying ads if you do not dispute within 24 hours" would sit a lot better.

2. Once the DMCA process has started, the poster was required to go through Youtube's "copyright school", and was limited to posting only short videos. I wish they would wait until one or the other party lost the dispute before doling out punishment and education.

Youtube is within its rights to behave this way, but it's Youtube's choice, not something required by law.

[AnthonyMouse]

These seem like valid but relatively minor complaints. YouTube should fix them. But the heart of the problem lives in the DMCA. If jerks or idiots file a fraudulent DMCA take down, the content comes down before you have a chance to dispute it. Then, even if you do dispute it... the DMCA says it stays down for at least 10 days. Ostensibly to give the claimant an opportunity to file a lawsuit against you, but there is no requirement that they actually do this, and your perfectly non-infringing content remains unavailable even if they never had any intention of doing so. (And if they do file a lawsuit then it stays down even longer... even though they've done nothing but file paperwork and have yet to prove anything whatsoever.)

And then, after your content has been down for a week and a half and finally goes back up, any new set of jerks (or as we saw here, maybe even just the same old jerks) can come along and file another takedown against the same content and it goes back down for another ten days or more.

I would say that it's amazing it doesn't see more abuse, except that it does. SEO companies and similar such scumbags regularly file fraudulent takedowns against their competitors. As far as I can discern, the process Hollywood employs to decide what to issue a takedown for comprises some combination of untrained monkeys and a random number generator. Wendy Seltzer wrote a paper detailing a whole slew of other such issues a couple years ago[1] but still nothing has been done to address it.

[1] http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1577785

[anigbrowl]

I agree wholeheartedly about the shortcomings of the DMCA, and am not sure what sort of equitable mechanism could make those problems go away.

[AnthonyMouse]

We could start by not making censorship the default: If a notice is received, notify the poster of the video that it will be removed in e.g. 24 hours if they don't submit a counter notice. Then it comes down after the grace period if they don't identify themselves and file a counter notice consenting to the jurisdiction of at least one U.S. federal district court, but if they do then the content stays up until a court says otherwise. And given that filing a counter notice is a de facto invitation to be sued, infringers who submit them improperly will have to answer for it in court, which should reduce the number of people willing to do so. On the other hand, in cases like the one in question here, the facts will have to go through the copyright holder's actual lawyers and a federal judge before any censorship occurs, which should do a good job stamping out fraudulent take downs as well.

In reality this is how the legal system works for almost everything else: First you ask nicely, and if the parties can't agree then you go to court. But in most cases the party in the wrong (at least in theory) knows that they'll lose in court and so concedes immediately and everything works as it ought to without taxing the court system.

[chc]

> although I'm not wholly sure, because using their source material for ~30% of the video is pretty substantial in my view

It's a bit of a side track, but: Any commentary on a work could reasonably be expected to feature that work substantially, couldn't it?

[anigbrowl]

I think there's a difference between quoting something in a review or as part of a presentation about film theory (or whatever), and quoting it in the context of a remix, where you're essentially engaging in fan-fiction first and commentary as a distant second (because the commentary is implicit and arguably subordinate to the entertainment function).

Now I am in favor of fairly wide latitude for this sort of reuse, which is a big reason I favor much, much shorter copyright terms, and graduated copyright at that (eg exclusive for 20 years, mandatory cheap licensing for the next 30, PD after that - for example). But it's hard to ignore the rightsholder's concern that this work is less about commentary than simply hitching a ride on a currently-popular franchise. It's not cashing in, since the person isn't trying to monetize it directly, but the person is trying to build their creative reputation from rearrangement of others' work, while denying any and all revenue to the original creator.

As someone who has spent the last decade making films from scratch rather than remixing others' work, I think this is pretty weak sauce, just as I think that DJing falls far short of musicianship. I engage in both activities, but when I'm DJing I don't consider that to be creatively equivalent to composing something original. People who say all creativity is fungible are lying to themselves.

[chii]

> I think this is pretty weak sauce ... DJing falls far short of musicianship.

Why do you think this? A good remix requires just as much ingenuity, just as much creative juices, as an original work. In fact, a remix might require even more ingenuity, because of the constraints of the remix. Of course, there are people who claim to be remixing, but is just putting things thoughtly side by side. But then again, you have original works that are also rubbish.

To me, the eye of the law should treat remix and originals exactly the same - works in their own right. A remix may have derivative works from else where, but as long as it is fair use to a reasonable person, it should be considered as an original.

[gte910h]

While a remix, it is also commentary on the work itself.

[illuminate]

If that was the case, RiffTrax would be in the clear for releasing all their voiceovers with the original movies :)

[gte910h]

Rifftrax is commercial, this is not

Rifftrax is additive, not transformitive

The person designated by the federal government to recommend who is exempt from DMCA restrictions recommended this work by name as an example of a work that would be hurt by not having exemptions to Decryption prohibitions. They considered it a valuable documentary.

>“Based on the video evidence presented, the Register is able to conclude that diminished quality likely would impair the criticism and comment contained in noncommercial videos. For example, the Register is able to perceive that Buffy vs Edward and other noncommercial videos would suffer significantly because of blurring and the loss of detail in characters’ expression and sense of depth.” -Recommendation of the Register of Copyrights, October 2012 (Page 133) Maria Pellante

[analog]

What's wrong with plain old writing? No reason to use any of the work at all imo. Video editing takes an insane amount of time in my experience.

[ecspike]

Different mediums touch people in different ways. It was a labor of love to produce the work no doubt.

[analog]

Well maybe, but I don't see why that gives the author the right to use someone else's work.

[chc]

AFAIK transcribing the movie could also be copyright infringement. You're effectively reproducing a portion of their work either way -- one in text form, the other in video form. Fortunately for critics, both are widely held to be fair use if done purely for the purpose of commentary and not done excessively.

[damncabbage]

I think Lionsgate is wrong in this case (although I'm not wholly sure, because using their source material for ~30% of the video is pretty substantial in my view) ...

Please see http://news.ycombinator.com/item?id=5033525 above.

[anigbrowl]

I read that, and am still not fully convinced; the Register's comment was normative rather than descriptive, and while I think that's how things should be in law you have to deal with things as they are.

[zeidrich]

I think fear has little to do with it. They put in an automatic system because of the fact that they need to deal with so many claims.

It's not that they fail to acknowledge fair use, it's that they err on the side of being restrictive in every situation because the law tells them to do so. When a DMCA takedown is filed they need to respond by removing the purportedly offending content. It's not their responsibility to mediate or investigate the claim. The number of takedown notices submitted also make that impossible.

On the other hand, laws exist to prevent people from submitting takedown notices in bad faith. Lionsgate doesn't have a claim of copyright ownership, the author has copyright. The author uses materials that were authored in a production that Lionsgate now has rights to, but the new production is a new work that uses elements that it has legal right to use.

I think that the fact that they once claimed audiovisual copyright and then dropped that when the term expired and claimed a second time for visual copyright is evidence that they are abusing the automated controls of youtube and acting in bad faith. If they weren't, they would have been justified in delivering a legal copyright notification to have the video taken down when the first appeal was filed.

Instead they dropped the claim and issued another, slightly different claim to abuse the mandated automated system.

[Karunamon]

>On the other hand, laws exist to prevent people from submitting takedown notices in bad faith.

Realistically these laws are hard if not impossible to enforce. There's absolutely nothing stopping someone from filing a fake DMCA under a fake name and getting absolutely no retribution for their actions. Ask any up and coming YouTube content creator and they'll probably tell you they've been hit with fake DMCAs in the past, which immediately results in the user's video getting pulled.

After that point, the damage is done. Even if it comes back later, especially if the content is time sensitive, the troll won.

Considering that you have to prove actual bad faith (rather than just negligence) and have to have someone's actual identity to initiate a DMCA countersuit, the protection offered in the internet age is laughable.

[georgemcbay]

Google is full of smart people, certainly they could set up a system in which some videos are manually flagged as controversial but allowed specifically for situations like this, particularly in cases in which previous take-downs were successfully overturned.

[DannyBee]

There is no "controversial" in this kind of case. Either it's legal, or it's not. There is no "kinda legal but maybe not". While the inputs are not binary, the output definitely is.

So either Google has to decide that, or they have to let others hash it out. Youtube doesn't prevent you from, for example, all banding together and suing Lionsgate in a class action.

You could also try personal suits for tortuous interference with contractual relationships (Lionsgate is deliberately interfering with your relationship with Youtube). It may be viable in some states (others, definitely not).

There are plenty of options here, youtube shouldn't be deciding this stuff any more than anyone else (for example github complies with DMCA requests, and counter-notifications, despite what they think of the actual situation).

[georgemcbay]

I'm not talking about things that are "kinda legal", I'm talking about situations where:

Guy uploads item that is clear to anyone with a brain is fair use.

Studio X files DMCA to Google.

Google automatically disables the video

Guy fights to reinstate the video, gets approval, video is re approved.

(So far this is what happens now, according to this guy's account)

But at the point where the video is re approved Google should flag the video such that it was previously auto-disabled and found to be not infringing and thus redirect any future DMCAs on it to the manual review pile instead of the automatic pile.

This would curtail studios using the automatic takedown process to fuck with people while adding a fairly minimal amount of work to Google's pile since most of the items that are taken down through the automatic DMCA process won't get re-approved in the first place.

[DannyBee]

So, something is not non-infringing just because someone drops a single DMCA claim.

Sadly, even in that case, the future DMCA's are just as valid, and Google would likely be just as liable, even if they are doing it abusively.

Again, the abuse is something to get a judge to look at, not Google.

Without a declaratory judgement of non-infringement in hand, there is actually nothing to say it's non-infringing, all you've done is get someone to drop a DMCA claim.

[gtCameron]

What it looks like to me is that YouTube refuses to play the role of the judge.

The role of YouTube in this dispute has been simply to provide a platform for the parties to work it out. YouTube is not the organization that is denying the fair use claim, Lionsgate is.

[chii]

except youtube is biased against the claimee and the system favours the claimer.

The most likely reason would be because otherwise, the claimer's lobby groups could put pressure on youtube to do more than it currently does (say, they can no longer claim safe habour under DMCA). The claimee are the little guys, and they while large in numbgers, have little to no power in affecting youtube's policy.

So its all down to money and economics. Therefore, a reasonable way to force youtube's hand is to make a big deal out of it, get as many people involved so that youtube feels more threatened by the actions of these small time remixers.