How the DMCA made YouTube

Happy birthday YouTube! The Digital Millennium Copyright Act sends its love.

Read the whole story

 

[RogerGraham]

Does anyone else have the (minor) problem with these Feature stories, that the link doesn't change to being greyed out once you've clicked the link?

 

[ivantod]

Whatever you do on YouTube, please for your own sanity just don't read the comments! You can thank me later!

 

[Static and Noise]

RogerGraham[/url]":1qkblnhe]Does anyone else have the (minor) problem with these Feature stories, that the link doesn't change to being greyed out once you've clicked the link?

Yes.

 

[Tiernoc]

So I've always heard from the commonly represented side (at least here) about the blatant and massive abuses of the DCMA. What I don't often hear about are the positives that the DCMA provides (outside of the vague term "Safe Harbor").

Is there a valid case for the DCMA to exist as it currently does today? Is there anyone here who would argue that it SHOULDN'T be changed or repealed?

 

[KingSkippus]

Oh, there would still be a YouTube, a Twitter, etc. They would all just be hosted in some more progressive country.

 

[trimeta]

Tiernoc[/url]":2vi3ymtc]So I've always heard from the commonly represented side (at least here) about the blatant and massive abuses of the DCMA. What I don't often hear about are the positives that the DCMA provides (outside of the vague term "Safe Harbor").

Is there a valid case for the DCMA to exist as it currently does today? Is there anyone here who would argue that it SHOULDN'T be changed or repealed?

I don't think anyone would say that it's perfect, but as this article demonstrates, we need a law similar to the DMCA to allow for user-generated content on websites. IMO, imposing real penalties for abuse of the notice-and-takedown system would go a long way towards fixing the DMCA...that, and removing the blanket restrictions on removing DRM.

 

[neodorian]

ivantod[/url]":t78alnes]Whatever you do on YouTube, please for your own sanity just don't read the comments! You can thank me later!

I personally use a browser add-on called AlienTube that replaces the comment section with comment threads from whenever the video has been posted to Reddit.

Reddit comments aren't perfect by any means but usually the threads range from a little juvenile to somewhat interesting. YouTube comment threads range from spam to worthless trolling.

 

[psd]

"The cool thing about these guys is that they have really, really long trunks. And that's pretty much all there is to say," says Karim.

With that, the flood gates of asphyxiating banality washed upon the inter webs and out onto the world at large claiming gainful livelihoods and meaningful personal relationships in its wake.

 

[David Crowell]

After YouTube pulled two of my bike polo videos because there was faint music playing in the background (it was behind a bar, there was music at the bar), I've decided to never post another video there.

 

[Violynne]

I can't agree to the opinion the DMCA helped build the internet. If anything, it completely changed it for the worse (and we're still dealing with its ridiculous overreach).

I'm not talking about the copyright aspect of it, but the initial investment behind it.

Before the DMCA was passed into law, a few friends and I were working on an online service related to the medical/hospital industry. We had several backers, including two states, which paid for the time and equipment we needed in order to build our systems.

When the DMCA passed into law, we continued forward for a few months before we got word our backers were pulling out.

The reason: they didn't want the liability. Once lawyers started getting into the text of the DMCA, it became crystal clear and and all new projects could be shut down or hindered through legal channels if any portion of the DMCA wasn't followed. Even if said defense was to challenge, the reality is that the majority of DMCA issues will go to court.

We had no choice but to scrap the project, and return the unspent monies. I'm firmly with the belief this law is what caused the majority of dot com bubble bursts.

The law is so broken, it's now becoming a problem. I just recently read an article to which John Deere and other companies are writing to the Copyright Office to explain "Farmers don't own the tractors they paid for because we own the software that runs them."

This isn't just related to John Deere. Too many corporations are making the "We own it, not you" claim and it's downright disgusting.

Unfortunately for consumers, we don't have a choice to fight against this atrocious stupidity.

The DMCA should be repealed, but it never will. Instead, we're going to see it get worse, just as it will for any other "protectionism" because things are starting to get global.

To those who bypass this law to make our products work the way we want them to: thank you.

To companies who continue to screw us over: rot in hell.

 

[BigOlBlimp]

David Crowell[/url]":22elx4ht]After YouTube pulled two of my bike polo videos because there was faint music playing in the background (it was behind a bar, there was music at the bar), I've decided to never post another video there.

Yeah I had a video I took in a bowling alley pulled because they were playing music there.

It didn't really bother me but it seemed a little odd.

 

[TomXP411]

Tiernoc[/url]":x2s0i0dv]So I've always heard from the commonly represented side (at least here) about the blatant and massive abuses of the DCMA. What I don't often hear about are the positives that the DCMA provides (outside of the vague term "Safe Harbor").

Is there a valid case for the DCMA to exist as it currently does today? Is there anyone here who would argue that it SHOULDN'T be changed or repealed?

The DMCA definitely has value. I strongly believe in the safe harbor provision, for example. I also believe in the DMCA takedown process, at least in principle, even if it is currently being abused.

What I have a hard time with is the fact that the DMCA guts fair-use principles by making it illegal to copy a DVD or Blu-Ray disc, even if you are only making a backup or making a copy for your iPad or laptop.

I don't think anyone can fairly say that the DMCA is perfect, as it stands. There is certainly room for improvement, but I also don't think it's all bad.

 

[Static and Noise]

neodorian[/url]":3ropsino]

ivantod[/url]":3ropsino]Whatever you do on YouTube, please for your own sanity just don't read the comments! You can thank me later!

I personally use a browser add-on called AlienTube that replaces the comment section with comment threads from whenever the video has been posted to Reddit.

Reddit comments aren't perfect by any means but usually the threads range from a little juvenile to somewhat interesting. YouTube comment threads range from spam to worthless trolling.

Another alternative is the Firefox addon Comment Snob. It lets you filter comments according to the following:

Number of spelling mistakes
All capital letters
No capital letters
Doesn't start with a capital letter
Excessive punctuation (!!!! ????)
Excessive capitalization
Profanity
Filtering on custom words and phrases

 

[Entegy]

Content ID's auto-flagging has one giant flaw: If the video is monetized, it immediately grants all ad revenue from the video to the claimant until the dispute is resolved. And the uploader, even if they win the dispute, does not get that money back.

That needs to change. The money should be held in escrow until the dispute is resolved. Otherwise, the DMCA can easily be abused to steal money from popular videos at the height of their popularity as disputes can last up to 90 days.

 

[spikestabber]

The problem with the DMCA is that even if you follow the law to the letter, the content industry can persuade the courts that your business does not comply based on "knowing or *should* have known" it was used to commit the infringement copyright. Such a court decision can shut anyone down if the MPAA/RIAA don't like you.

Also, Youtube is loaded with infringing full length movies, many from Disney, etc. They auto play these films for you all the time with their interest algorithm. They are hardly angels. ContentID appears to be extremely biased who it hits.

 

[autochthonic]

Tiernoc[/url]":asz84e1v]So I've always heard from the commonly represented side (at least here) about the blatant and massive abuses of the DCMA. What I don't often hear about are the positives that the DCMA provides (outside of the vague term "Safe Harbor").

Is there a valid case for the DCMA to exist as it currently does today? Is there anyone here who would argue that it SHOULDN'T be changed or repealed?

Aside from the article you just read about how the DMCA made modern social media possible?

Sidenote: no compilation of internet cat videos is complete without the "Hey" cats, and links to the "GIFs with sound" videos would've been relevant as well.

 

[smunter6]

So DMCA is a good thing for YouTube, even though when it did operate explicitly within the bounds of the safe harbor, it still got sued, racked up $100 million in legal fees, and then settled out of court (failing to set any precedent about the legality of its operations) after implementing a take-down scheme that is incapable of differentiating fair use from infringing?

I don't buy it.

 

[trimeta]

smunter6[/url]":hxqbfged]So DMCA is a good thing for YouTube, even though when it did operate explicitly within the bounds of the safe harbor, it still got sued, racked up $100 million in legal fees, and then settled out of court (failing to set any precedent about the legality of its operations) after implementing a take-down scheme that is incapable of differentiating fair use from infringing?

I don't buy it.

The scary part? That *was* the good case. Without the DMCA, it could have been a lot worse.

 

[smunter6]

trimeta[/url]":3cmg3jz6]

smunter6[/url]":3cmg3jz6]So DMCA is a good thing for YouTube, even though when it did operate explicitly within the bounds of the safe harbor, it still got sued, racked up $100 million in legal fees, and then settled out of court (failing to set any precedent about the legality of its operations) after implementing a take-down scheme that is incapable of differentiating fair use from infringing?

I don't buy it.

The scary part? That *was* the good case. Without the DMCA, it could have been a lot worse.

How much worse? Are there any examples of pre-DMCA internet copyright lawsuits? What exactly would have happened and what would have been the consequences?

 

[SgtCupCake]

The DMCA sucks but it could be worse. Unfortunately, for those guys trying to make a living off of making Youtube video's, it can be quite neabulous whether their content infringes on anything. They can often be caught with an invalid DMCA takedown notice which removes all earnings from the video until the DMCA claim has been removed. I know that AngryJoe has had his ass bitten more than once, and I would hardly consider his content to be infringing.

 

[Alfonse]

smunter6[/url]":32iatqy8]

trimeta[/url]":32iatqy8]

smunter6[/url]":32iatqy8]So DMCA is a good thing for YouTube, even though when it did operate explicitly within the bounds of the safe harbor, it still got sued, racked up $100 million in legal fees, and then settled out of court (failing to set any precedent about the legality of its operations) after implementing a take-down scheme that is incapable of differentiating fair use from infringing?

I don't buy it.

The scary part? That *was* the good case. Without the DMCA, it could have been a lot worse.

How much worse? Are there any examples of pre-DMCA internet copyright lawsuits? What exactly would have happened and what would have been the consequences?

I don't know of any actual lawsuits about it, but just think about it.

Without the DMCA, there's a legitimate legal case to be made that YouTube would be responsible for any and all infringing material. After all, it was uploaded to YouTube servers. It was handed out by YouTube's infrastructure to YouTube users. If that material is infringing, then YouTube is clearly a party to the infringement. And indeed, is the primary means by which the infringement is being carried out.

It would be very hard to convince a jury that YouTube is not a party to the infringement. Since you know, they clearly are. The only defense YouTube would have is essentially jury nullification: to argue that there would be no way for YouTube to exist if it had to pre-police all data uploaded to it, so you should find the defendant not liable.

I'm not a lawyer, but I'm pretty sure that's not an argument you're allowed to make, since the law isn't required to allow your business model to exist.

The DMCA's Safe Harbor provision basically says "take it up with the person who uploaded the content, not the middle-man".

Note that Safe Harbor also allows web servers to be rented to other users, and thus protects the owner of the server from liability for the content that a user has uploaded. There's probably some caselaw on issues like that pre-DMCA.

 

[dewke]

smunter6[/url]":3l35ak7n]

trimeta[/url]":3l35ak7n]

smunter6[/url]":3l35ak7n]So DMCA is a good thing for YouTube, even though when it did operate explicitly within the bounds of the safe harbor, it still got sued, racked up $100 million in legal fees, and then settled out of court (failing to set any precedent about the legality of its operations) after implementing a take-down scheme that is incapable of differentiating fair use from infringing?

I don't buy it.

The scary part? That *was* the good case. Without the DMCA, it could have been a lot worse.

How much worse? Are there any examples of pre-DMCA internet copyright lawsuits? What exactly would have happened and what would have been the consequences?

Think of all those RIAA and MPAA lawsuits. Every content provider and ISP would be subjugated to them.

Yes the DMCA sucks a bag of dicks, but it would have been far worse.

 

[jdietz]

If you don't like it, the only solution is to not use YouTube.
Some creators don't like YouTube and host videos on their own site. Usually rights holders don't care enough to take enforcement actions against these independent sites. That's because it requires actual effort - a lawyer to send either a notification that a lawsuit has been filed in a court, or otherwise a cease and desist notice. The DMCA safe harbor process is only for sites hosting other people's content like YouTube.

In my opinion, YouTube makes it too easy for rights holders, and too hard for independent creators.

 

[deas187]

It's interesting that over 17 years ago the entertainment industry was concerned enough about the effect of the internet in digital piracy that they lobbied strongly for the DMCA to help secure their IP rights. And over the following 17 years, they were un-able or un-willing to create products and web-stores to sell their music and movies directly to the consumer. All of the major outlets I can think of where I might buy downloadable music and movies were created by 3rd parties; iTunes, Amazon, BeatPort. There is no "Sony Music Entertainment" or "Paramount" website or store (that I am aware of) where I can go to directly and buy music and movies. For the consumer it's a good thing as content is centralized. But if I'm one of these massive entertainment companies, I'm kind of pissed that it's not my system and my web-store, over which I have complete control. Of course, iTunes and NetFlix need to acquire the rights to the content, and the movie studios and record labels wouldn't agree to the terms if they didn't think it was an acceptable deal, but it still has to chap their asses that it's not their system.

I am un-sure of what the above could imply. One possibility is that the big entertainment companies severely underestimated the potential of the internet and online distribution, even in to the mid-2000s and after they shutdown Napster. Another possibility is that they just did not care enough to build out the online sales and distribution systems themselves, although I find that one less convincing. A third possibility is that, knowing they are the 800 pound gorilla, the big entertainment companies decided to let others build out the systems, licensing the content where they chose to, and knowing they could externalize any risk they perceived through the courts and litigation.

 

[goglen]

As others have pointed out, the invalid DMCA notices via Content ID, etc, are the weak point. It robs the legitimate creator of their income (no refund of ad revenue), which encourages unethical behavior.

I was under the impression the DMCA had penalties for false takedown notices. The ad money should be held in the account and given to the proven owner. Companies should put up a bond for takedown notices, and should have to ascertain that a human reviewed it and is confident it is not fair use, etc.

At the very least, couldn't one press charges of theft (of income) if the notice was invalid?

 

[Ezzy Black]

Tiernoc[/url]":l1lohb1f]So I've always heard from the commonly represented side (at least here) about the blatant and massive abuses of the DCMA. What I don't often hear about are the positives that the DCMA provides (outside of the vague term "Safe Harbor").

Is there a valid case for the DCMA to exist as it currently does today? Is there anyone here who would argue that it SHOULDN'T be changed or repealed?

It certainly could be improved. While this article discusses the "safe harbor" rule and it's effects on innovation the DMCA is quite broad in its scope.

The most unnerving sticking point is, as another user mentioned, the use of the DMCA to deny an owner access to the software imbedded in a device they actually own.

The most famous case, of course, is DVD encryption. It's not illegal to make a copy of a DVD, but it's not only illegal to rip it, it is illegal to even attempt to break the encryption. Obviously there is a huge amount of water under the bridge here, but the fact remains, if you rip a DVD, you have broken the encryption.

The law is currently being used in things as diverse as routers and automobiles. Auto enthusiasts and tinkerers are breaking the law by modifying the computers inherent in all modern cars to change the performance of the engine that they own. This is a perfect example of how the DMCA doesn't just give more freedom to Internet companies, it takes some freedoms away from consumers as well.

 

[jonah]

It is insufficiently stated in this article just how much of a steaming pile of flaming poo the DMCA actually is.

Yes, it had a few positive externalities. On the whole, it's been used as a club to fine, jail, and enjoin people from doing all sorts of perfectly sensible things.

 

[deletefromcommentswhere1=1]

Thanks for a well written and informative article on a topic where it is rare to find a balanced take on the subject.

 

[macintologist]

300 hours of video are uploaded to YouTube every minute

How sustainable is this? How long should we expect to be able to upload hours of video to Youtube with free accounts, and unlisted private URLs? I use Youtube to offload a whole bunch of private videos of mine due to a lack of storage elsewhere.

 

[MyPasswordIs12345678]

Why did I just watch 10 minutes of cat videos?

 

[ironmaidenrocks]

I believe the judge in this case is called "Jeremy Fogel." http://dockets.justia.com/docket/califo ... 211/208062

 

[Fritzr]

Tiernoc[/url]":1sox6oir]So I've always heard from the commonly represented side (at least here) about the blatant and massive abuses of the DCMA. What I don't often hear about are the positives that the DCMA provides (outside of the vague term "Safe Harbor").

Is there a valid case for the DCMA to exist as it currently does today? Is there anyone here who would argue that it SHOULDN'T be changed or repealed?

It has had many positive results, but one change that would be nice...

Add real penalties for false takedown requests. Including a requirement that a takedown request take into account the possibility of fair use would be nice also.

The first would allow copyright holders to be able to do something about ad squatters claiming ownership and getting paid for their faked notice. It would also penalize inaccurate automated takedown systems and the many random posters sending out fake notices because harrassing others is 'fun'

The second would force automated takedown requests to be reviewed before submission. This should reduce the number of unintentional fake takedowns. At the moment, the fake takedowns are no problem for the automated systems as there is little or no real world penalty for depriving someone else of their rights under DMCA.

DMCA has many other provisions that could use some tweaking due to identified negative effects that are unrelated to the takedown portions.

 

[Fritzr]

Alfonse[/url]":3u2sor8z]

smunter6[/url]":3u2sor8z]

trimeta[/url]":3u2sor8z]

smunter6[/url]":3u2sor8z]So DMCA is a good thing for YouTube, even though when it did operate explicitly within the bounds of the safe harbor, it still got sued, racked up $100 million in legal fees, and then settled out of court (failing to set any precedent about the legality of its operations) after implementing a take-down scheme that is incapable of differentiating fair use from infringing?

I don't buy it.

The scary part? That *was* the good case. Without the DMCA, it could have been a lot worse.

How much worse? Are there any examples of pre-DMCA internet copyright lawsuits? What exactly would have happened and what would have been the consequences?

I don't know of any actual lawsuits about it, but just think about it.

Without the DMCA, there's a legitimate legal case to be made that YouTube would be responsible for any and all infringing material. After all, it was uploaded to YouTube servers. It was handed out by YouTube's infrastructure to YouTube users. If that material is infringing, then YouTube is clearly a party to the infringement. And indeed, is the primary means by which the infringement is being carried out.

It would be very hard to convince a jury that YouTube is not a party to the infringement. Since you know, they clearly are. The only defense YouTube would have is essentially jury nullification: to argue that there would be no way for YouTube to exist if it had to pre-police all data uploaded to it, so you should find the defendant not liable.

I'm not a lawyer, but I'm pretty sure that's not an argument you're allowed to make, since the law isn't required to allow your business model to exist.

The DMCA's Safe Harbor provision basically says "take it up with the person who uploaded the content, not the middle-man".

Note that Safe Harbor also allows web servers to be rented to other users, and thus protects the owner of the server from liability for the content that a user has uploaded. There's probably some caselaw on issues like that pre-DMCA.

Though most would agree that the way it was used was often illegal ... MegaUpload is an example of what can happen without DMCA protection.

 

[macintologist]

Why does the first Youtube video have an ID of jNQXAC9IVRw? Why not 1?

 

[Alfonse]

macintologist[/url]":3qgsobfm]Why does the first Youtube video have an ID of jNQXAC9IVRw? Why not 1?

Because it's not an index; it's a hash-code.

 

[elpolloloco51]

YouTube one time actually flagged an audio artifact (a clip sound) from a VHS tape I uploaded as 3rd party content, that was ridiculous!

Google needs radically overhaul their content ID system, because it is basically rogue and out of control . I am against pirated videos or people uploading music without permission. However, You tube's copyright content ID system goes beyond that, it punishes innocent YouTube uploaders even for accidentally filming faint copyrighted music, which is not fair at all. I rarely upload YouTube videos now in fear that I will have some strike or something because I unwittingly had music or something in it.

 

[InlineRanger]

deas187[/url]":3sqzejr6]It's interesting that over 17 years ago the entertainment industry was concerned enough about the effect of the internet in digital piracy that they lobbied strongly for the DMCA to help secure their IP rights. And over the following 17 years, they were un-able or un-willing to create products and web-stores to sell their music and movies directly to the consumer.

What you're describing is basically the studio system, where a few vertically integrated Hollywood studios dominated the industry until the 50s. The government used to work a little better back in the day and anti-trust laws forced studios to divest their distribution channels. Hence, why 20th Century Fox movies no longer air only in Fox theaters.

Copyright laws are broken and they're only going to get worse (along with a whole lot of other stuff) if the TPP gets passed.

 

[xizar]

jdietz[/url]":2cjsajlu]If you don't like it, the only solution is to not use YouTube.
Some creators don't like YouTube and host videos on their own site. Usually rights holders don't care enough to take enforcement actions against these independent sites. That's because it requires actual effort - a lawyer to send either a notification that a lawsuit has been filed in a court, or otherwise a cease and desist notice. The DMCA safe harbor process is only for sites hosting other people's content like YouTube.

In my opinion, YouTube makes it too easy for rights holders, and too hard for independent creators.

As someone who has created content for YouTube and been fucked by erroneous contentid flagging, I feel I have to point out that it's not "too easy for rights holders".

*I* hold rights to the things I create.

It makes it too easy for the organizations that have a fuckton of money and influence over google through the threat of legal intimidation that Google has acquiesced to because it's easier and cheaper that way.

 

[nomadofnorad]

Fritzr[/url]":1n411m03]

Alfonse[/url]":1n411m03]

smunter6[/url]":1n411m03]

trimeta[/url]":1n411m03]

smunter6[/url]":1n411m03]So DMCA is a good thing for YouTube, even though when it did operate explicitly within the bounds of the safe harbor, it still got sued, racked up $100 million in legal fees, and then settled out of court (failing to set any precedent about the legality of its operations) after implementing a take-down scheme that is incapable of differentiating fair use from infringing?

I don't buy it.

The scary part? That *was* the good case. Without the DMCA, it could have been a lot worse.

How much worse? Are there any examples of pre-DMCA internet copyright lawsuits? What exactly would have happened and what would have been the consequences?

I don't know of any actual lawsuits about it, but just think about it.

Without the DMCA, there's a legitimate legal case to be made that YouTube would be responsible for any and all infringing material. After all, it was uploaded to YouTube servers. It was handed out by YouTube's infrastructure to YouTube users. If that material is infringing, then YouTube is clearly a party to the infringement. And indeed, is the primary means by which the infringement is being carried out.

It would be very hard to convince a jury that YouTube is not a party to the infringement. Since you know, they clearly are. The only defense YouTube would have is essentially jury nullification: to argue that there would be no way for YouTube to exist if it had to pre-police all data uploaded to it, so you should find the defendant not liable.

I'm not a lawyer, but I'm pretty sure that's not an argument you're allowed to make, since the law isn't required to allow your business model to exist.

The DMCA's Safe Harbor provision basically says "take it up with the person who uploaded the content, not the middle-man".

Note that Safe Harbor also allows web servers to be rented to other users, and thus protects the owner of the server from liability for the content that a user has uploaded. There's probably some caselaw on issues like that pre-DMCA.

Though most would agree that the way it was used was often illegal ... MegaUpload is an example of what can happen without DMCA protection.

Without DMCA protection of what?

The company? MegaUpload had a DMCA compliance policy that went above and beyond what DMCA required, since they gave special, extra access to the big content companies to just go on and remove whatever they felt infringed without having to go through a review body at MegaUpload.

The content? Remember, while there was a mechanism to de-duplicate content (so that 50 copies of a given file would all point to one copy on their servers), but there was also a demonstrable fact that some copies of a given thing can be legit (i.e. you have licensed that content, and you've stored a copy purely as a personal backup that only you have access to there) even if other copies of that same thing might not be (i.e. someone STOLE a copy of that above licensed content from you and gave it to the other 49 people who then independently uploaded it), therefore it would be improper to just assume they were all infinging copies and delete all of them.

Or do you mean the fact that the content industry outright lied to the government about what MegaUpload WAS and had them destroyed in order to protect their own dinosaur industry from the coming of new technological innovation that's not under THEIR direct control and that THEY can't then be parasites over? That is to say, that the DMCA failed to protect MegaUpload against the injustice of being DESTROYED by a pack of lies and a bunch of law enforcement types that took those lies at face value?