Monday, May 11, 2009

Twelve business days after counternotice, why hasn't YouTube re-posted Founding Bloggers' CNN critique?

It's been 12 business days since Founding Bloggers submitted a DMCA counternotice disputing a copyright infringement claim by CNN, and yet the video in question -- which incorporates 1 minute 20 seconds of CNN footage to criticize reporter Susan Roesgen in what is almost certainly a fair use -- remains inaccessible:

Under Section 512(g) of the DMCA, a host maintains its safe harbor from copyright liability if it keeps the allegedly infringing material down for at least 10 business days following receipt of a counternotice. As YouTube describes the process:
After we send out the counter-notification [to the sender of the takedown notice], 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.
Since CNN has not (as far as I'm aware) sued Founding Bloggers over the video -- which I consider a fairly solid case of fair use -- YouTube faces virtually no risk of liability from re-posting it. And YouTube has recently demonstrated that it is even willing to re-post videos that make fair use of third-party material even before the 10-business-day window has closed.

Why hasn't YouTube re-posted the video? I'm not sure; in my experience they do re-post videos after the 10 days expire, though sometimes it's necessary to prod them with a polite reminder. Until I'm provided evidence to the contrary, I'll consider this a case of simple inadvertance.

And if YouTube does re-post, is that the end of the story? Not necessarily. Even after the re-posting, the target of a DMCA notice can sue the sender of a bogus takedown notice under 17 U.S.C. § 512(f), which provides a cause of action for "knowingly materially misrepresent[ing] under this section...that material or activity is infringing." (This is what happened in Lenz v. Universal.) In theory, CNN could also still sue Founding Bloggers for copyright infringement. But I consider that highly unlikely, for at least three reasons: 1) CNN would almost certainly lose, given the strength of Founding Bloggers' fair use defense; 2) even if CNN won, such a "victory" would actually harm its interests as a news organization that makes fair use of others' video countless times every day; and 3) by failing to go after the numerous others who have re-posted the same video, CNN has signaled that it wants this all to just go away -- quietly. The question remains: will Founding Bloggers let them?

1 comment:

  1. Sometimes YouTube has to be sent a reminder if they don't respond to the Counternotice. In September 2007, followers of Kent Hovind's Creation Science Evangelism ministries sent out about 20 DMCA complaints against critics of Kent Hovind in order to get their videos pulled from YouTube. (Hovind is now doing hard time for tax evasion.)

    One of those hit goes by the name of desertphile. He sent a Counternotice but YouTube didn't restore the video. He didn't pursue this again until about a year had gone by. He then sent another notice and YouTube restored the video right away.

    The DMCA says that to enjoy its protection against a copyright lawsuit, YouTube must replace the video no less than 10 NOR MORE THAN 14 business days following the receipt of a counternotice. However, YouTube really won't face any penalty if they ignore the part which says they should put the video back up no more than 14 business days after filing a counternotice. I mean, theoretically, they will not have the DMCA's protection against a copyright lawsuit, but who is going to sue them if they don't restore the video in a timely manner? Certainly not the copyright holder who sent the DMCA complaint. And the person whose video was removed really can't sue them for copyright infringement either.

    So unfortunately, there really is no penalty if YouTube ignores the part about reposting the video.


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.