[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.