Comments on: OurTube Once Again

OurTube Once Again

l33tpolicywonk — Fri, 23 Apr 2010 13:07:00 -0800

YouTube allows fair use defense. Under a new policy, users claiming fair use in videos previously taken down due to a copyright claim will be restored, and the claimant forced to file a formal complaint under DMCA.

Hat tip Boing Boing.

By: bondcliff

bondcliff — Fri, 23 Apr 2010 13:09:57 -0800

This should make Hitler happy for once.

By: nestor_makhno

nestor_makhno — Fri, 23 Apr 2010 13:12:31 -0800

I guess they remembered the "don't be evil" concept.

By: Sticherbeast

Sticherbeast — Fri, 23 Apr 2010 13:12:36 -0800

My kingdom for an "everything went better than expected" parody re-edit of that Downfall scene.

By: idiopath

idiopath — Fri, 23 Apr 2010 13:15:34 -0800

Sticherbeast: "My kingdom for an "everything went better than expected" parody re-edit of that Downfall scene." I am imagining the scene run in reverse, backward audio and all.

By: Sticherbeast

Sticherbeast — Fri, 23 Apr 2010 13:15:52 -0800

BTW, some fun info from Wikipedia about the DMCA and false claims: "§ 512(f) Misrepresentations Section 512(f) deters false claims of infringement by imposing liability on anyone who makes such claims, for the damages suffered by other parties as a result of the OSP's reliance on the false claim, and for associated legal fees. This provision really does have some bite, as illustrated by the case of Online Policy Group v. Diebold, Inc.,[19] where an electronic voting technology firm was sanctioned for knowingly issuing meritless notices of infringement to ISPs." Blanket removals of videos by corporations just got a whole lot riskier.

By: stoneweaver

stoneweaver — Fri, 23 Apr 2010 13:19:14 -0800

Wow. I'm actually surprised in a good way by something a corporation did. That's a nice change.

By: Cool Papa Bell

Cool Papa Bell — Fri, 23 Apr 2010 13:19:15 -0800

"Steiner's assault will bring it under control." "Fucking-A, right on, mein Fuhrer."

By: philip-random

philip-random — Fri, 23 Apr 2010 13:19:58 -0800

Good for Hitler. Never thought I'd say that.

By: Astro Zombie

Astro Zombie — Fri, 23 Apr 2010 13:21:47 -0800

Great for Hitler.

By: Sticherbeast

Sticherbeast — Fri, 23 Apr 2010 13:22:46 -0800

Google: ~~Don't Be Evil~~ Great for Hitler

By: Justinian

Justinian — Fri, 23 Apr 2010 13:24:37 -0800

By: East Manitoba Regional Junior Kabaddi Champion '94

East Manitoba Regional Junior Kabaddi Champion '94 — Fri, 23 Apr 2010 13:27:41 -0800

Even if that is the case Justinian, a judge is going to be much more lenient with someone not seeking to make a profit from their Downfall parody. I expect it would be considered fair use. How Google's profit motive fits into this I have no idea.

By: explosion

explosion — Fri, 23 Apr 2010 13:29:47 -0800

Justinian, your understanding is flawed. You can use various sources in a Fair Use manner to parody something else. That, and the clips use Downfall to parody Hitler by making him concerned with petty and cartoonish things like Youtube or Leaving Britney Alone. There's much more to parody than "LOL we're making fun of the thing we're using." For instance, we could make a parody Metafilter thread that made fun of an article or topic that did not specifically parody Metafilter, but rather, was more of a loving send-up of Metafilter.

By: Sticherbeast

Sticherbeast — Fri, 23 Apr 2010 13:30:29 -0800

Well, except that I suspect the great majority of Downfall videos don't qualify as Fair Use. Parody does fall under fair use... but only if it is a parody of the copyrighted material, not a parody of a third subject using the material. Parodying the movie Downfall = fair use. Using the Downfall material to parody Apple, Youtube, Michael Jackson fans, or whatever is not fair use. To my understanding. IANAL, but I don't know if it's as clear-cut as this. For one thing, all of the Downfall parodies are very much about the comedic juxtaposition of the downfall of Hitler with whatever inane topic the parody is about. They are each parodies of Downfall itself to one extent or another. Further, almost every, say, Weird Al parody is about some third subject and not the band itself, with some exceptions ("Smells Like Nirvana"). I know that Weird Al gets permission from his subjects whenever he can, but I was under the impression that this was for purposes of goodwill and not out of legal obligation.

By: Artw

Artw — Fri, 23 Apr 2010 13:34:58 -0800

This should make Hitler happy for once. I wouldn't bet on it. He always seems so angry about one thing or another...

By: SpiffyRob

SpiffyRob — Fri, 23 Apr 2010 13:38:46 -0800

You know who else would be great for Hitler? OH SHIT INFINITE LOOP.

By: filthy light thief

filthy light thief — Fri, 23 Apr 2010 13:40:20 -0800

I don't know if this is really new, or if it's something they've now explained in detail. I went searching for more info following the Downfall of Downfall thread yesterday. Going back to September 2009, over 1,000 content owners were using Content ID in one way or another. That post is on YouTube's business blog, aimed at the rights holders, so they don't cover the response potential for uploaders. I'll be lazy and re-post my summary, so no one misses the good bits:

The article [now the first link in the OP] notes that Content ID allows rights owners to quickly find (then track, monetize or take down) content as they wish. Also noted: Content ID doesn't differentiate between Fair Use of any sort and copyright infringement, so if you uploaded a video and it's been taken down because of Content ID, it's up to you as the uploader dispute the claim, and if you tick the the box that reads "This video uses copyrighted material in a manner that does not require approval of the copyright holder," the video is back online. The rights owner is notified, and has the option to file a formal DMCA notification.

So unless this check-box process is new, it may have been an option going back to late 2009, or whenever Content ID was rolled out.

By: filthy light thief

filthy light thief — Fri, 23 Apr 2010 13:41:02 -0800

(That's good bits of the OP article, not my prior post)

By: naju

naju — Fri, 23 Apr 2010 13:47:10 -0800

The work has to comment on the original work, not just invoke it. Downfall parodies are the former, as a great deal of the humor and commentary depends on the gravitas and subject matter of that work. Not to mention it's almost a banner example of "transformative" work. Campbell v. Acuff-Rose says that the key question for parodies is whether the new work "adds something new, with a further purpose or different character altering the first with new expression, meaning, or message; it asks in other words whether and to what extent the new work is transformative."

By: nicwolff

nicwolff — Fri, 23 Apr 2010 13:52:03 -0800

Facebook is still evil though right? [Like]

By: lore

lore — Fri, 23 Apr 2010 13:52:40 -0800

Okay, I don't think you can really hash out whether something is fair use or not on an internet forum -- or anyplace other than court -- but if we're going to discuss it, here's an important bit of case law concerning parody: Dr. Seuss Enterprises v. Penguin books. Short summation Affirmation of preliminary injunction My one-sentence paraphrase: Using The Cat In The Hat to parody OJ Simpson is not fair use.

By: Justinian

Justinian — Fri, 23 Apr 2010 13:52:57 -0800

Justinian, your understanding is flawed. You can use various sources in a Fair Use manner to parody something else. Are you a lawyer? I don't mean that snarkily; I'm not a lawyer. I'm just wondering whether your understanding is based on something better than my understanding, if you see what I mean? My understanding is that parody is well protected but satire is not. And using a copyrighted source to parody something else is satire, not parody. Sticherbeast: Whether an individual Downfall video is a parody of Downfall itself depends heavily on the actual video. I don't think it's enough to parody Hitler as you say, it has to actually be a parody of the scene from Downfall. That's an interesting enough question that you'd probably have to litigate it but I doubt anyone involved on any side would be willing to go that far for non-profit youtube videos like this, particularly when I suspect the proliferation of those videos has been GOOD for Downfall.

By: Sticherbeast

Sticherbeast — Fri, 23 Apr 2010 13:59:16 -0800

Sticherbeast: Whether an individual Downfall video is a parody of Downfall itself depends heavily on the actual video. I don't think it's enough to parody Hitler as you say, it has to actually be a parody of the scene from Downfall. The parody videos each play on the rhythms of the scene itself to make their series of comedic points. I think the deft use of subtitles is what makes each parody a transformative work.

By: mad bomber what bombs at midnight

mad bomber what bombs at midnight — Fri, 23 Apr 2010 14:02:53 -0800

filthy light thief is correct, this isn't new. From the bottom of the post: "UPDATE: To clear up confusion, this is not a new feature. The dispute process has been in place since Content ID first launched in October 2007. We've changed some text to make that clear."

By: empath

empath — Fri, 23 Apr 2010 14:04:16 -0800

This is not a new policy. When DMCA notices are served, Google takes the video down. The content uploader can dispute, then the content goes back up. At that point, its a dispute between the uploader and the DMCA claimant and google is out of the picture. It's not Google's job to adjudicate claims. As much as the eff, etc were against enacting the DMCA, the DMCA take down process is pretty rational and I'd be sad to see it changed.

By: norm

norm — Fri, 23 Apr 2010 14:04:18 -0800

From Lore's link: A parodist must ridicule the original composition or author in order for fair use to apply Amusingly, this says to me that whatever the parody merits of the original meme videos, the parody video posted in the other FPP, which directly ridicules Constantin AG's response, is absolutely fair use. (IANACL).

By: fatbaq

fatbaq — Fri, 23 Apr 2010 14:05:17 -0800

i fucking hate cats

By: l33tpolicywonk

l33tpolicywonk — Fri, 23 Apr 2010 14:06:36 -0800

I'd argue that the much-more-intuitive system for claming fair use makes this functionally new and shifts the burden of proof back to the claiment.

By: naju

naju — Fri, 23 Apr 2010 14:08:52 -0800

From Lore's link: A parodist must ridicule the original composition or author in order for fair use to apply "Must ridicule"? That's simply not true.

By: drjimmy11

drjimmy11 — Fri, 23 Apr 2010 14:09:16 -0800

I'm sorry, the Hitler gags are funny, but they're not even close to "parody" or "fair use." "Parody" is when you MAKE SOMETHING that makes fun of something else. They didn't make ANYTHING, except some white text. They're using the actual, copyrighted footage from the movie, without permission. IANAL, but I am 99% sure any argument about intent or "transformative" is moot when you're using the actual footage! We can argue about whether your car design is a rip-off of mine, but if you drive MY physical car down the street, it doesn't matter what you painted on the side- THAT'S MY CAR.

By: Cool Papa Bell

Cool Papa Bell — Fri, 23 Apr 2010 14:10:55 -0800

My one-sentence paraphrase: Using The Cat In The Hat to parody OJ Simpson is not fair use. Or rather, you can't portray O.J. Simpson as the Cat in the Hat without making some kind of notable, recognizable parody reference to the Cat in the Hat. IMO, replacing the subtitles of Downfall in order to change the nature of Hitler's rant is nothing but a parody of Downfall. The portrayal of Hitler losing his mind in a mixture of anger and paranoia, terrifying everyone around him, is subverted so it becomes a colossal overreaction to being banned from something as trivial as Xbox Live. That's pretty much the essence of what parody is. Consider this classic parody of Jimmy Carter. "Ask President Carter" was a real CBS radio show hosted by Walter Cronkite. SNL subverted the show to make it appear as if Carter was taking calls about how to deal with LSD trips ("You've just taken a heavy drug. Relax, stay inside and listen to some music, Okay? Do you have any Allman Brothers?"). That's very much what the Downfall parodies are doing, too.

By: norm

norm — Fri, 23 Apr 2010 14:11:36 -0800

"Must ridicule"? That's simply not true. ARE YOU CALLING THE INTERNET A LIAR? Copyright law is weird.

By: Cool Papa Bell

Cool Papa Bell — Fri, 23 Apr 2010 14:14:18 -0800

They didn't make ANYTHING, except some white text. Presumably, there are subtitled versions of Downfall in existence. The parody-makers have "made" replacements of this text, both in an actual, digital product, and have "made" a creative product with regard to the text itself (or do you think comedy writing is not "made"?). The fact that they did this with video tools and not, say, guitars and amplifiers like a Weird Al Yankovic song is an irrelevant point.

By: naju

naju — Fri, 23 Apr 2010 14:21:22 -0800

any argument about intent or "transformative" is moot when you're using the actual footage! Fair use only even gets raised when copyrighted work is used without permission. It's a "Yeah, this would normally be infringement, except..." thing.

By: naju

naju — Fri, 23 Apr 2010 14:24:57 -0800

(Or actually to be more precise, "Yeah, this is infringement. We'll allow it anyway because...")

By: DU

DU — Fri, 23 Apr 2010 14:26:38 -0800

Wow. I'm agog. Non-sarcastically.

By: Evilspork

Evilspork — Fri, 23 Apr 2010 14:30:31 -0800

I'll be happy when you're given an actual, actionable/fixable reason your video was suddenly deleted, not just "here, read through the entire TOS and try and figure out what you did, you naughty girl". And maybe even some kind of appeal process, but I'm not as hopeful for that much.

By: Soliloquy

Soliloquy — Fri, 23 Apr 2010 14:40:44 -0800

I propose we get Weird Al Yankovich to parody the Downfall clips (complete with similar mise-en-scene, dialogue, and scenery-chewing), and release it into the wild for the fans to subtitle to their heart's content. (Also, could I be a total stick-in-the-mud and suggest that this newfound appreciation for subtitles be put to good use? How about captioning/subtitling some other video every time you make a Hitler Rant video, people?)

By: phearlez

phearlez — Fri, 23 Apr 2010 14:41:42 -0800

Parody does fall under fair use... but only if it is a parody of the copyrighted material, not a parody of a third subject using the material. If you're basing that on the Acuff case then that's not accurate. The case does talk about what the subject of the parody is, but it also footnotes elsewhere that it's also important whether the use can actually serve as a substitute and mentions balancing concerns in multiple places. Even if that is the case Justinian, a judge is going to be much more lenient with someone not seeking to make a profit from their Downfall parody. Also not true based on the comments in the Acuff case. You may not be looking to make money but if your parody can stand in the place of the original work and remove demand for it then your intentions may not matter. The Acuff case is interesting reading even for us laymen. It's no substitute for real legal representation if you need it but its a good way to see how at least one judge viewed the various concerns than needed weighing.

By: StickyCarpet

StickyCarpet — Fri, 23 Apr 2010 14:52:30 -0800

Just for the record, I'm parodying all of existence, so I'm covered no matter what.

By: The Lurkers Support Me in Email

The Lurkers Support Me in Email — Fri, 23 Apr 2010 15:04:42 -0800

Also, my very existence is a parody of my own failure to do anything meaningful with it. What does that get me?

By: MiltonRandKalman

MiltonRandKalman — Fri, 23 Apr 2010 15:06:18 -0800

Actually we're gonna make it easy for everyone. Some friends of mine are thinking of doing our own reenactment of the scene and release it in the wild. Then you can all re-title ours. *makes wiping motion with hands* Problem solved

By: East Manitoba Regional Junior Kabaddi Champion '94

East Manitoba Regional Junior Kabaddi Champion '94 — Fri, 23 Apr 2010 15:11:14 -0800

You may not be looking to make money but if your parody can stand in the place of the original work and remove demand for it then your intentions may not matter. Agreed but I can't think of a genuine parody that can "stand in the place of the original work and remove demand for it". Such a thing would be a knockoff, not a parody.

By: Smedleyman

Smedleyman — Fri, 23 Apr 2010 15:12:27 -0800

"IANAL, but I am 99% sure any argument about intent or "transformative" is moot when you're using the actual footage!" IANALE, but Hustler won its defense against Jerry Falwell for their parody using his exact image and an almost perfect replication of the then popular Campari ad. I don't think anyone is attempting to portray the dialogue as actually coming from the film. In fact that's precisely opposite the point. And I don't think anyone would think the makers of the actual film Downfall would put in XBox references or other such anachronistic things. (It's a pretty oppressive, horrible, film. Which is to say it was pretty good in reflecting those events over that period of time.) Does an actor "make" anything? It's just a costume and some words spoken with emotion in a certain style. Just because something doesn't have physical form does not mean it's not a mode of expression. Altering the subtitles to comment on current events (or whatever) is a form of expression. If someone took the unaltered version and said "look, I made this movie, but it's just a parody" then yeah, there'd be a problem.

By: Smedleyman

Smedleyman — Fri, 23 Apr 2010 15:13:55 -0800

Just for the record, I'm parodying StickyCarpet's parody of all of existence, so ... well, actually I'm probably fucked then.

By: cerulgalactus

cerulgalactus — Fri, 23 Apr 2010 15:41:06 -0800

Now to upload all those videos of me in a diaper dancing to Prince songs!

By: revmitcz

revmitcz — Fri, 23 Apr 2010 15:45:29 -0800

I've had my own run-ins with YouTube and DMCA takedowns. The weirdest one (that I'm still fighting) goes about like this.. 1. Years ago (around 2003), I performed at the Irvine Improv. Twice. The first time was my first time onstage and was part of a "graduation" for comics who'd taken The Improv's comedy classes. They'd offer to film your set for you, or you could bring your own camera. I brought my own. The 2nd time I performed there was just a normal local comics night. Again, they had no issue with me recording my own set. 2. I uploaded those two videos on my own site and had them there for years. 3. When YouTube first launched, I thought "hey, this might be a good way to offset the bandwidth of hosting these videos myself", and I put them on YouTube. 4. About a year and a half ago, I see that BOTH videos had been removed from my account for "TOS violation". My set was vulgar, sure, but not offensive in a TOS sense (I wasn't racist, inciting violence, etc). 5. I asked YouTube "hey, what the hell?" and received a simple "someone claimed copyright to those videos". 6. I sent a follow-up of "okay, who?" and got the name of a media company that, as it turns out, represents The Improv and is in some kind of official capacity to keep people from uploading unauthorized videos (like using a cameraphone to grab video of a Big Name Comic). 7. I e-mailed several people at the company, after weeks of getting the "I'm out of town" auto-responder e-mail from their official contact. One person gets back to me and just says "our policy is that we are to enforce the rule that we do not allow unauthorized video taping at any Improv locations". 8. Informing them that I did, in fact, have authorization and that the video is, in fact, of ME (and therefore I'm not stealing from myself) I've simply gotten "well, I'm not the person in charge of that" (about 4 separate people from their company have told me this) 9. I tell YouTube what's going on, saying they're clearly abusing the DMCA and that I can very much prove that the video is entirely my property, and of my image. They continue to auto-respond with quoted pieces from the TOC telling me to contact "the copyright holder". I know they mean "the assholes who think they own your content", but I'm the g'damned copyright holder. So, here I am with these two videos that YouTube won't let me re-enable, and since my account is pretty important to me (I'm an official YouTube partner, I'm allowed to put videos up that users can pay-per-view, and I have about 5-6 million views and several hundred subscribers) so I'm not gonna try and skirt around them by uploading new versions. I'm stuck between some assholes who claim to represent the Improv and comedians (and, amusingly, won't let me audition for them for representation - though I asked mostly to humor myself) and YouTube whose "official policy" is basically "hey, take it up with the assholes". I always appreciate when Google makes it easier for The Little Guy to fight The Big Assholes, and I think they're doing a good thing here - I just wish they'd apply this across the board for violations AND give one the option of a personal review in cases where both sides won't budge in their defense of "hey, I have a right to use this content".

By: philip-random

philip-random — Fri, 23 Apr 2010 16:52:29 -0800

Also, my very existence is a parody of my own failure to do anything meaningful with it. What does that get me? A free YouTube membership? MetaFilter will still cost $5.

By: grouse

grouse — Fri, 23 Apr 2010 20:01:57 -0800

By: tzikeh

tzikeh — Fri, 23 Apr 2010 23:44:46 -0800

IANAL, but I think there's another element of "Fair Use" that's missing here. I believe, though I am far from 100% certain, that a part of the Fair Use doctrine is that one can use x minutes of any material (x being a relatively small number) for any purpose, without infringing the copyright so long as it is not for any kind of profit. In my understanding, posting a four-minute clip of a of a three-hour movie falls under Fair Use. I hope someone who knows more than I do can clarify this, but I'm pretty sure something along these lines is true.

By: stringbean

stringbean — Sat, 24 Apr 2010 00:59:15 -0800

empath said: As much as the eff, etc were against enacting the DMCA, the DMCA take down process is pretty rational and I'd be sad to see it changed. grouse said: A rational takedown process would allow the content provider to dispute the notice before their content is taken down, not after the fact. In my opinion, a rational takedown process would require: a) due process (a legal decision from a judge before any action is taken) b) policing to be done by the police (don't dump the workload on online service providers) Due Process As revmitcz clearly showed, anyone can make a spurious copyright claim. It should not be revimitcz's job to prove that he is the copyright owner. It should be the media company's job to prove that revmitcz violated copyright laws. Revmitcz is an official YouTube partner so their claim violated his rights and cost him money. What if, instead of contacting YouTube, the media company in question contacted his domain registrar or hosting company and had revmitcz.com suspended? What if they then contacted revmitcz's ISP and had his Internet access suspended until he could prove that the he did not violate copyright law? The YouTube video in question has been suspended since 2003. What if they took away his Internet access without due process for seven years and counting? That wouldn't just violate his rights and cost him money, it would devastate the livelihood, education and entertainment of his entire family. These would be grave consequences. They'd be severe violations of revmitcz's rights to liberty and livelihood. The stakes are high. We can't rely on biased parties to make the decision. Decisions have to be made by a judge skilled in the law. We need due process. Anything less is unacceptable. Policing by Police As markkraft said in another thread, a stack of DMCA notices every day can have real world consequences for smaller online service providers. It takes time and money to deal with these claims. Why should online service providers have to pay for policing copyright law? Don't we already pay the police and FBI to do this for us? Asking online service providers to work for free to police a dispute between two, completely unrelated third-parties is the height of insanity. We can't trust the media companies to do the policing, either. They have been known to misrepresent the facts, send bogus threat letters and conduct questionable raids to protect their profits. If we are going to police copyright, it has to be done by a duly authorized legal entity that is impartial, properly trained to enforce laws without violating rights and can be held accountable if they overstep their authority. It has to be the police or the FBI. Anything less is unacceptable.

By: hexatron

hexatron — Sat, 24 Apr 2010 05:23:06 -0800

I'd link to the Downfall parody "Mein Fuhrer, YouTube is allowing those filthy uploaders to ....to dispute and revoke our DCMA takedown orders", but I don't know where it is.

By: stringbean

stringbean — Sat, 24 Apr 2010 07:29:21 -0800

Hitler, as "Downfall" Producer, Orders a DMCA Takedown This video was produced by Brad Templeton (YouTube user bradtem), Chairman of the Board of the Electronic Frontier Foundation for ten years until February 2010. It uses the fair use dispute system that is the topic of this post. From the video description: Produced by Brad Templeton, who is EFF chairman but releases this video on his own, the video educates about intellectual property issues and parodies the actions of the studio using the very clip they are trying to block. The irony is that Constantin did a takedown of this video... using Youtube's "Content ID" system. I filed a dispute and so it's back up again, for now....

By: The3rdMan

The3rdMan — Sat, 24 Apr 2010 10:34:02 -0800

I guess they remembered the "don't be evil" concept. Actually, I think they remembered the "make yourself looking like you're doing good so you may make more money" concept. Why does no one here care that YouTube itself makes money off of the videos on their site? When you post a cool mashup and put a song from a local band on it that you love, it may be with the best intentions, and have no intention/means of making money from it. Then guess who makes money on it? YOU TUBE. Guess who gets cheap advertising from it? SOME BIG CORPORATION whose ad is plastered over your video. Screw YouTube. They were moving in the right direction allowing for artists at least a little control over their material. I hope this helps bring about the kind of copyright reform we need - i.e, a system of tracking and paying out roylaties to artists and content creators whose work is exploited by folks like YouTube for profit.

By: revmitcz

revmitcz — Sat, 24 Apr 2010 14:08:08 -0800

In my opinion, a rational takedown process would require: a) due process (a legal decision from a judge before any action is taken) b) policing to be done by the police (don't dump the workload on online service providers) Ehh.. that might be a good backup solution, for bigger cases or those where the parties are far more affected by this than they tend to be - but I think that's taking it a bit far. What if, instead of contacting YouTube, the media company in question contacted his domain registrar or hosting company and had revmitcz.com suspended? What if they then contacted revmitcz's ISP and had his Internet access suspended until he could prove that the he did not violate copyright law? The YouTube video in question has been suspended since 2003. What if they took away his Internet access without due process for seven years and counting? That wouldn't just violate his rights and cost him money, it would devastate the livelihood, education and entertainment of his entire family. Just to clarify : YouTube didn't exist in 2003. The videos in question were taken offline around late 2008 (I think). I wasn't an official YouTube partner at the time, and the two of them combined only total about 2,000 views. So, even if I was using revenue share on those two, I'd be out about.. $5? Something like that. I realize it's the premise of the thing that you're talking about here but I wanted to at least clear that part up. What should happen in cases like mine is that I should be able to file a counter-claim that puts the onus of proof on them. I'm allowed to file a counter-claim, but it ends up boiling down to what I described before, in that if they don't respond, I've gotten nowhere. I should be allowed to say "I filed a counter-claim and received no adequate response from them. Here is proof of our correspondence" and after a period of time - say 2-3 weeks - they should have to come forth with some kind of proof, or the case is dropped. They should also not be allowed to make the claim again at a later date. The rational takedown process you assume above also does nothing to protect those making a legitimate copyright claim. I've had people steal my videos before. What if they're better marketers than me, and suddenly they've got 20,000 views on a video I've only had 400 views on? Not only do I not get the money they'd be making on said video - but going through the process you described earlier means months of lost revenue from advertising dollars AND lost viewers whose first experience of my content had no context or links to more content of mine. Meanwhile I'd sit around and lose out on the traffic, advertising, and viewer numbers that would be generated by my own original content and I'd have nothing to show for it. Throughout this thread, I think most agree that the system is by no means perfect, and could use a lot of work, but I don't think going from one extreme to another is the answer.

By: delmoi

delmoi — Sat, 24 Apr 2010 16:41:51 -0800

Why does no one here care that YouTube itself makes money off of the videos on their site?

Do they? A lot of people calculate that YouTube would lose money if they hosted their videos with bandwidth bought commercially. It's only google's massive infrastructure that allows them to be profitable, if they even are. Secondly, they do share revenue with "partners". People who have enough views for it to worthwhile to do.

a) due process (a legal decision from a judge before any action is taken) b) policing to be done by the police (don't dump the workload on online service providers)

The problem is that, obviously it would be impossible for a judge to look at every infringement case, and copyright infringement is a tort, not a crime (in general, there is "criminal copyright infringement now") and it's always been handled by lawsuits, not the police. Would you really want the FBI or someone enforcing copyright?

By: phearlez

phearlez — Sat, 24 Apr 2010 20:06:02 -0800

When DMCA notices are served, Google takes the video down. The content uploader can dispute, then the content goes back up... As much as the eff, etc were against enacting the DMCA, the DMCA take down process is pretty rational and I'd be sad to see it changed. Here's the problem: you left out the 14 day period between the uploader's dispute and the content going back up. I disagree strongly that it's rational based entirely on that required delay. It's a massive giveaway to people who are looking to suppress information sharing and I'm personally aware of one incident where it was explicitly and purposefully used to that end. The fact that a party can make things disappear to the cornfield for at least two weeks just by wishing it so is insanity. The penalties for doing so are horribly imbalanced against individuals. The penalties for bogus claims are enumerated as "one who knowingly materially misrepresents a claim of infringement is liable for any damages, including costs and attorneys' fees, incurred by the alleged infringer or ISP injured by the misrepresentation, as the result of the service provider relying upon the misrepresentation in removing or disabling access to the material or activity claimed to be infringing." What does revmitcz show for damages? Massive pain in the ass? If s/he is a working comedian then perhaps you could try to show some harm in disrupted advertising but how much could you possibly lay claim to? The lack of any statutory damages is insulting and a corporate giveaway. Rational is not a word I'd use to describe it.