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?