[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.