Saturday, May 23, 2009

Must YouTube re-post videos following a counternotice?

Warning: this post will soon head deep, deep into the DMCA weeds. It may interest no one but me and the Masked Analyst. But here goes...

Here's the issue: if the subject of a DMCA takedown notice sends a counternotice, and the copyright owner declines to sue within the statutory 10-14-business-day window, do YouTube and similar hosts have a legal obligation to re-post the allegedly infringing material?

I think the answer is no. If YouTube prefers to permanently remove all videos subject to a takedown notice -- whether or not the copyright claim is valid or the poster submits a valid counternotice -- I believe it can do so without risk of liability.

Here's why: when we think of the DMCA safe harbors, we think of the safe harbors for the hosts or ISPs, i.e., defenses from infringement claims by copyright owners. But the DMCA counternotice provision, 17 U.S.C. § 512(g), is different. Section 512(g) provides a safe harbor from claims not from copyright owners, but from "subscribers," e.g., the people who post videos to YouTube. (I'm assuming arguendo that YouTube qualifies for the DMCA safe harbor, this minor matter notwithstanding.) Let's start with the statute (which is a true headache-inducer):
No liability for taking down generally.— Subject to paragraph (2), 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.
Note that 512(g)(1) refers only to liability for "disabling of access to, or removal of, material." It's only the subscriber -- not the copyright owner -- who might be annoyed by the removal, and might potentially have a claim for which the host would desire a safe harbor. And if the statute isn't a model of clarity, the legislative history provides further support for my point. The House committee report (p. 59) provides:
In such instances, to retain the immunity set forth in new subsection ([g])(1) with respect to the subscriber whose content is taken down, the service provider must take three steps.
(My emphasis; the report refers to a version of the bill before Section (f) became (g).) The Senate committee report (p. 60) is in accord:
In such instances, to retain the immunity set forth in subsection ([g])(1) with respect to the subscriber whose content is taken down, the service provider is to follow up to three steps.
(emphasis added; same point re (f) and (g)). The statute goes on to set forth the steps that the host must take if it wants a safe harbor against a claim from a subscriber: 1) notify the subscriber of a takedown notice; 2) accept counternotices and forward them to the copyright owner and "and inform[] that person that it will replace the removed material or cease disabling access to it in 10 business days"; and 3) replace the material after 10-14 business days, unless the copyright owner sues in the meantime.

But remember: the host only needs a safe harbor from the subscriber if that subscriber would (absent the safe harbor) have some claim against the host. But what claim could a YouTube "subscriber" (really a misnomer, since users don't pay a dime) possibly have against YouTube for removal of a video, whether infringing or not? YouTube/Google has good lawyers, and they made sure that subscribers agree that YouTube can remove (and keep down) videos for pretty much any reason YouTube chooses:
YouTube expressly disclaims any and all liability in connection with User Submissions.... YouTube reserves the right to remove Content and User Submissions without prior notice.
Similar sites are even more explicit. Here's MySpace:
MySpace may reject, refuse to post or delete any Content for any or no reason, including Content that in the sole judgment of MySpace violates this Agreement or which may be offensive, illegal or violate the rights of any person or entity, or harm or threaten the safety of any person or entity.
(my emphasis). And Veoh:

Veoh reserves the right to suspend its performance of the User and +Video Content or any aspect thereof under these TOU at any time, without giving prior notice, for any act which Veoh, in its sole discretion, determines to be harmful to any end user of the Veoh Service, the Veoh Service itself or which Veoh determines in good faith violates or fails to comply with any applicable law or regulation. Veoh may, without notice to You, remove or block any Video Content from the Veoh Service.
I can imagine a hosting site that has a different sort of contract with its subscribers (particularly ones who pay), such that it might be in breach if it removes a subscriber's material and would face liability absent the safe harbor provided in Section 512(g). But a typical free-to-the-user UGC site like YouTube or MySpace has no need for the 512(g) safe harbor, because it faces no risk of liability from a user if it removes his or her video; the terms of use already provide a solid defense to such claims. Thus there's no real obligation to follow the steps set out in 512(g) -- including the re-posting provision.

Now, as a matter of policy and practice, sites like YouTube generally do re-post videos 10-14 business days following a counternotice, unless the copyright owner sues in the meantime. (But note YouTube only says it "may" -- not "will" -- replace the video (my emphasis).) Why? To keep their users happy. And maybe even to mollify pesky bloggers.

Am I wrong? If so, why?


  1. Thank you for this thorough analysis of the issue. I agree with it without reservation as it applies to all sites other than YouTube. You are screwed if LiveLeak or Veoh or any other site besides YouTube fails to restore your video upon receipt of a counternotice. Your observation that they can remove any video for any reason is a good one. However, YouTube may be different.

    I've posted a lengthy essay discussing why they are different on my website. It's a bit too long to re-post here, but the short answer is this. YouTube has a unique position on the web which may subject it to unique rules. Not only is it amongst the top five websites in terms of traffic, it is the ONLY website where Congress and other governmental agencies have set up shop in order to communicate with their constituents. Congressional leaders have posted a video asking for both text comments and video responses from YouTube users. And YouTube's May 21 blog states:

    "Our federal leaders and civil servants aren't just on YouTube to distribute video; they're here to engage with you in a way that only YouTube makes possible. So leave your comments, rankings, and ideas for these agencies on any of their videos to ensure that your voice is heard on the issues you care about. Reach out to your local government as well and encourage local officials to start posting footage to YouTube. By exposing everything from committee hearings to planning meetings, we can make our civic lives more open than ever before. Ultimately, it will help us hold public servants accountable for the jobs we've hired them to do."

    YouTube's status as a defacto quasi-governmental agency might (and I think SHOULD) subject YouTube to rules and regulations that would not apply to other sites. If, for example, the video in question was directed towards a member of Congress, then YouTube should certainly be held liable for failure to restore the video. YouTube's TOS is a contract of adhesion, and if YouTube failed to restore a message to Congress then it would shock the conscience. Even if the video is not specifically directed towards Congress, it would shock MY conscience at least if YouTube failed to restore a video that takes a position on an important political issue. The video doesn't have to be directed specifically toward Congress in order to have a message intended to sway public opinion or change the political landscape.

    Google may be a private company, but can they make a decision not to restore videos that take a particular political position that they don't like?

    Go to my website for a more detailed look at this question. (Scroll to the bottom of the main page, click on "Video Transcripts and Miscellaneous Essays", Then click on "Does the DMCA legally obligate YouTube to restore videos upon receipt of a counternotice?"

  2. I wrote a journal article on the DMCA takedown notices, if you have time, you might want to check it out. I would love to hear your thoughts on it too.
    It's a pdf - . I agree with your assessment that YouTube does not need to repost, but I really think it stems from the fact that they don't need to post anything they don't want to in the first place.


Comments here are moderated. I appreciate substantive comments, whether or not they agree with what I've written. Stay on topic, and be civil. Comments that contain name-calling, personal attacks, or the like will be rejected. If you want to rant about how evil the RIAA and MPAA are, and how entertainment companies' employees and attorneys are bad people, there are plenty of other places for you to go.