Potholer54 pursuing legal action against YouTube

[nasher168]

You 'eard:



I didn't, in all honesty, care much about the whole potholer54/Amenakin DMCA shitstorm going on until now. This has now become a rather more interesting matter. YouTube apparently doesn't have a legal leg to stand on, so it will be interesting to watch what happens.

 

[Squawk]

Much as I agree with him that youtube cannot be a forum for academic debate if this decision stands, my opinion on that is, meh!

It would be great if it was that. It would be great if youtube wanted it to be that. But if they don't, who cares. The safe harbour status is not an issue here. Youtube has no obligation at all to provide a forum from which you can exercise your right to free speech. They choose to take down videos like this and they devalue they platform, but nothing more.

Perhaps my complete ignorance of the law here is shining through, but far from not having a legal leg to stand on, I don't think they need one.

 

[WarK]

Perhaps my complete ignorance of the law here is shining through, but far from not having a legal leg to stand on, I don't think they need one.

I'm probably even worse at law but my understanding is that YT chose this approach to cover their arse from legal claims by big record companies and the like. But by not allowing potholer's vid back online they basically lose their cover from the record companies' claims. The thing is they have to treat everyone equally through the DMCA process.

Please correct me if I'm wrong.

 

[Squawk]

Why should that matter. Safe harbour status basically sets down protections for youtube where copyrighted material appears on their site. It means that, so long as they adhere to certain standards and procedures, they cannot be held liable for the appearance of copyright material on their site.

Ie. someone files a DMCA, they have to take it down. Someone files a counter claim, youtube then have the ability to restore that video. The decision to do restore the video, or not, however, would seem to be completely irrelevant. They have the ability. They chose not to exercise it. I can't see that their reasoning has any bearing on the matter.

The DMCA in this instance protects youtube, not the end user. Youtube could cite cheese eating monkeys as their reason for keeping that vid off the net if they wanted, it would make no difference.

 

[ArthurWilborn]

That's right - nothing in the law covers putting notified material back up.

Now, potholer is citing a common legal principle that says that you can't choose when to act like a protected class. This is most commonly seen in cases of privilege; a spouse can't testify for the defense and then turn around and claim privilege in front of the prosecution - either they testify completely or not at all.

However, the thing present in that example but absent here is the rights and interests of other parties. Potholer has no inherent right as a private citizen to upload videos to youtube - they can exercise their discretion as a private business and approve or deny anything they care to.

 

[Prolescum]

I saw the original video so don't know why YouTube is doing it. That said, I concur with Squawk and Arthur, I can't see potholer54 getting anywhere for the reasons they gave.

 

[Gunboat Diplomat]

I'm not a lawyer but, as far as I know, neither is anyone else here so I'll throw my opinion in with the rest...

I think potholer54's argument is that YouTube's response to his counter-notification, here:

...clearly shows that they can and do make judgements on copyright, in clear violation of their safe harbour status. Again, I'm no lawyer but he's spoken to several lawyers, so this argument is not his personal opinion...

Anyway, something he did appears to have worked:

 

[Squawk]

I take my previous statement back. Went and did what I probably should have done the first time round and read the DMCA section on safe harbour

http://digital-law-online.info/lpdi1.0/treatise34.html

In general, a service provider is not liable to its subscribers because of the removal or access-blocking when it is done in good faith because it has received a proper notice or knows on its own that the material is infringing.

A service provider shall not be liable to any person for any claim based on the service provider's good faith disabling of access to, or removal of, material or activity claimed to be infringing or based on facts or circumstances from which infringing activity is apparent, regardless of whether the material or activity is ultimately determined to be infringing. {FN91: 17 U.S.C. ,§512(g)(1)}

Note that the liability exclusion covers only the "disability of access to, or removal of, material or activity claimed to be infringing." It does not sanction a wholesale removal of a subscriber's material, particularly material that does not infringe, unless that is necessary to disable access to, or remove, the allegedly-infringing material.

For a service provider to benefit from that provision, it is necessary that it "takes reasonable steps promptly to notify the subscriber that it has removed or disabled access to the material" and respond to a counter notification from the subscriber whose material was taken down by sending the copyright owner who originally filed the notice a copy of the counter notification, informing him that the service provider "will replace the removed material or cease disabling access to it in 10 business days." Then the service provider

replaces the removed material and ceases disabling access to it not less than 10, nor more than 14, business days following receipt of the counter notice, unless its designated agent first receives notice from the person who submitted the notification under subsection (c)(1)(C) that such person has filed an action seeking a court order to restrain the subscriber from engaging in infringing activity relating to the material on the service provider's system or network. {FN92: 17 U.S.C. ,§512(g)(2)(C)}

In other words, the service provider must notify the subscriber of any takedown, and if the subscriber contests the takedown, must restore the material within 14 business days. That provides the copyright owner time to file an infringement suit and get a temporary injunction ordering the continued removal of, or blockage of access to, the alleged infringing material.

The put back procedures were added as an amendment to this title in order to address the concerns of several members of the Committee that other provisions of this title established strong incentives for service providers to take down material, but insufficient protections for third parties whose material would be taken down. {FN93: Sen. Rep. No. 105-190 at 50}

While the service provider has to make a reasonable effort to notify the user of any material taken down, extraordinary effort is not required.

The Committee intends that "reasonable steps" include, for example, sending an e-mail notice to an e-mail address associated with a posting, or if only the subscriber's name is identified in the posting, sending an e-mail to an e-mail address that the subscriber submitted with its subscription. The Committee does not intend that this subsection impose any obligation on service providers to search beyond the four corners of a subscriber's posting or their own records for that subscriber in order to obtain contact information. Nor does the Committee intend to create any right on the part of subscribers who submit falsified information in their postings or subscriptions to complain if a service provider relies upon the information submitted by the subscriber. {FN94: Sen. Rep. No. 105-190 at 50}

Similar to the specific requirements for a copyright owner's notice, there are specific requirements for the counter notification:

To be effective under this subsection, a counter notification must be a written communication provided to the service provider's designated agent that includes substantially the following:

(A) A physical or electronic signature of the subscriber.

(B) Identification of the material that has been removed or to which access has been disabled and the location at which the material appeared before it was removed or access to it was disabled.

(C) A statement under penalty of perjury that the subscriber has a good faith belief that the material was removed or disabled as a result of mistake or misidentification of the material to be removed or disabled.

(D) The subscriber's name, address, and telephone number, and a statement that the subscriber consents to the jurisdiction of Federal District Court for the judicial district in which the address is located, or if the subscriber's address is outside of the United States, for any judicial district in which the service provider may be found, and that the subscriber will accept service of process from the person who provided notification under subsection (c)(1)(C) or an agent of such person. {FN95: 17 U.S.C. ,§512(g)(3)}

Again, Section 512(f) establishes a civil liability when there is any misrepresentation in a notice:

Any person who knowingly materially misrepresents under this section,

(1) that material or activity is infringing, or

(2) that material or activity was removed or disabled by mistake or misidentification,

shall be liable for any damages, including costs and attorneys' fees, incurred by the alleged infringer, by any copyright owner or copyright owner's authorized licensee, or by a service provider, who is injured by such misrepresentation, as the result of the service provider relying upon such misrepresentation in removing or disabling access to the material or activity claimed to be infringing, or in replacing the removed material or ceasing to disable access to it. {FN96: 17 U.S.C. ,§512(f)}