LA Times Tech Blog flubs the DMCA

The LA Times Technology blog has an interesting item about videos removed from YouTube following copyright claims by Warner Music Group. The Times focuses on:

a Web developer who does contract work for the U.S. Air Force filmed himself playing the "Star Wars" theme song on his banjo.

The banjo player, Will Chatham, from Asheville, N.C., posted the video to YouTube. It amassed 1.5 million hits, 8,000 comments, numerous blog-post references and an offer to play a gig at Lucasfilm's 30th anniversary "Star Wars" party. Oh, plus one notice of copyright infringement.

But Chatham isn't rolling over for WMG. Reports the Times:

Chatham, who plays in a bluegrass group called the Whappers (no, they're not signed to Warner), is fighting back. Since receiving the e-mail from YouTube regarding Warner's claim, Chatham has filled out copyright counterclaim papers. If Warner doesn't respond within 10 days, YouTube is obligated to put the banjo video back online, Chatham has learned.

But the Times gets the DMCA and YouTube's own policies wrong. What the DMCA actually says is that if YouTube wants to maintain its "safe harbor" from liability in a copyright suit by WMG, it must keep the video off the site for at least 10 business days following receipt of the counternotice from Chatham. (And it can't replace the video without losing the safe harbor if WMG files a copyright suit over the video within those 10 days.) But, contrary to what the Times says, YouTube has no obligation to put Chatham's video back. (Read Section 512(g) itself if you want a good headache.) As I've explained before, "YouTube has no obligation to host or broadcast anyone's video, and its terms of use make clear that it 'reserves the right to remove Content and User Submissions without prior notice.'"

As YouTube further explains the counternotice process:

After we receive your counter-notification, we will forward it to the party who submitted the original claim of copyright infringement. Please note that when we forward the counter-notification, it includes your personal information. By submitting a counter-notification, you consent to having your information revealed in this way. We will not forward the counter-notification to any party other than the original claimant.

After we send out the counter-notification, the claimant must then notify us within 10 days that he or she has filed an action seeking a court order to restrain you from engaging in infringing activity relating to the material on YouTube. If we receive such notification we will be unable to restore the material. If we do not receive such notification, we may reinstate the material.

Note that, contrary to what the Times implies, YouTube does not say that it "will" reinstate -- merely that it "may." Though, in my experience, if YouTube does receive a counternotice, and the copyright owner does not follow up with a lawsuit within 10 business days, YouTube will indeed restore the video. Come to think of it, I am not aware of a single instance involving a YouTube video in which a copyright owner has filed a lawsuit within the 10-14 business day post-counternotice window. Anyone else?

One last thing. The Times writes:

The legal definition of "performance" in situations like these remains a gray area and may continue to be until YouTube hobbyists begin to bring these cases to court.

I actually don't think there's much doubt that someone who posts a video to YouTube of himself playing a song has "publicly performed" the song as defined in Section 101 of the Copyright Act:

To “perform” a work means to recite, render, play, dance, or act it, either directly or by means of any device or process or, in the case of a motion picture or other audiovisual work, to show its images in any sequence or to make the sounds accompanying it audible.

***

To perform or display a work “publicly” means —

(1) to perform or display it at a place open to the public or at any place where a substantial number of persons outside of a normal circle of a family and its social acquaintances is gathered; or

(2) to transmit or otherwise communicate a performance or display of the work to a place specified by clause (1) or to the public, by means of any device or process, whether the members of the public capable of receiving the performance or display receive it in the same place or in separate places and at the same time or at different times.

The more interesting, and more difficult, question, is whether videos like Chatham's qualify as "fair use" and are therefore non-infringing under Section 107.

UPDATE:  C&C gets results!  The Times has printed the following correction:

A previous version of this post said that YouTube was obligated to restore a video if Warner doesn't respond within 10 days. YouTube may choose to put the video back online after 10 days but isn't required to do so.