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YouTube copyright notice

Posted: Sun Jun 09, 2019 7:46 am
by Mubuer
B uses a photo which belongs to A. In the video of B, the video content is criticism A. However, in this video, it is not necessary to use the photos taken by A, and the content of the photos is not related to the content of the comments. So A submitted a copyright notice on YouTube, and the video was removed.

Later, A received a YouTube notice “We're providing you with the counter notification and await evidence (in not more than 10 business days) that you've filed an action seeking a court order against the counter notifier to restrain the allegedly infringing activity. ……If we don't receive notice from you, we may reinstate the material to YouTube.” And receive the email from B, the content is that B believes that they belong to the reasonable use of Article 107 of the US Copyright Act because the video belongs to the news commentary program. And if A does not reinstate B‘s video on YouTube, B will bring a legal case to A

May I ask does A’s complaint violate the law? Does B have the right to file a lawsuit? If the court finally decides that B’s conduct is fair use, will A assume legal responsibility?


Re: YouTube copyright notice

Posted: Sun Jun 09, 2019 10:27 am
by AndyJ
Hi Mubuer,

The important thing to note is that as Youtube is a US company their general terms and conditions originally specified that their site will be governed by US law (specifically the laws of the State of California) but since 2007 they have adopted a policy of 'localisation' in which users in certain countries (including the UK) are subject to the law of their local jurisdiction. This is very confusing as A might be based in the UK and rely on the provisions of UK copyright law, while B might be based in the USA and rely on that country's copyright laws. Indeed it appears that the Digital Millenium Copyright Act (DMCA) takedown system has been used in your example, and that is a US law. Secondly the mention of section 107 of the US Copyright Act 1976, which covers fair use, implies that B is based in the USA, or at least intends to rely on US law in his defence.

This is important because under UK law the fair dealing exception (Section 30(1)) for criticism would appear not to permit this use of the photographs because the criticism has to be of a copyright work, and not a person or a way of life etc. Furthermore, the news reporting exception (s 30(2)) does not apply to photographs. Thus under UK law B probably wouldn't have a defence which allowed him to use the picture without permission. However the fair use doctrine in the USA (coupled with the First Amendment rights) provides much more scope for a copyright work to be used in circumstances such as you describe, without permission. The fact that this video has been referred to as news comment could mean that the fair use factor of transfornative use (along with the free speech aspect) would make this permissable. Because of Youtube's localisation policy it is hard to say who is in the right, because we don't know which law applies.

So turning to you questions, if A does want to fight the counter-notice, in theory he would need to sue B for infringement, which he could do either in the USA or in the UK (assuming that A lived in the UK, and B was in the USA). However if both parties were in the same country life gets a little easier since there is only one applicable law. As for B suing A this would really only work in the USA as B could ask a court there for summary judgment, meaning that a court would be asked to rule that A had no claim to copyright infringement, without undertaking a trial of the facts. It is much rarer for the UK courts grant a similar sort of order unless A had actually started proceedings against B.

Your second question was: does A’s complaint violate the law? No. assuming that A has reasonable grounds for beleiving infringement has occurred based on the law which A relies on, then he is perfectly entitled to have issued the notice to Youtube. That's how the DMCA system is supposed to work. The only time a DMCA notice would violate the law would be where:
Any person who knowingly materially misrepresents under this section—
(1) that material or activity is infringing, or
(2) that material or activity was removed or disabled by mistake or misidentification,
shall be liable for any damages, including costs and attorneys’ fees, incurred by the alleged infringer, by any copyright owner or copyright owner’s authorized licensee, or by a service provider, who is injured by such misrepresentation, as the result of the service provider relying upon such misrepresentation in removing or disabling access to the material or activity claimed to be infringing, or in replacing the removed material or ceasing to disable access to it.
source: section 512(f) US Copyright Act 1976
As a matter of interest, the weakness of the DMCA system is that very few people are ever sanctioned under this provision even though it is well-known that thousands of erroneous DMCA Takedowns are issued automatically each day. The problem is that since this is done automatically by bots and algorithms and no human is involved, section 512(f) can't be used as it only applies to 'any person'.

And as for you last question, I assume you mean, if B suceeds, will A be liable for B's legal costs? Again, it depends on the country issue and what kind of complaint is heard by the court. If A sues B and loses it is likely that costs might be awarded against him, unless the case was heard in the UK IPEC Small Claims court, when legal costs can't be claimed. But if B sued A in the US courts for summary judgment and won, then it is likely that both sides would bear their own costs. However if A is in the UK and B is in the USA (or vice versa) and cost were awarded against A by the other jurisdiction, it is unlikely that they could be recovered without further costly civil litigation.

Re: YouTube copyright notice

Posted: Sun Jun 09, 2019 3:23 pm
by Mubuer
I have a question. If B sues A, then the court how to determine whether A is a false knowingly materially misrepresents.

As A, he is not a professional lawyer. When judging whether it meets the "Fair Use", it is not as accurate as the court.

Re: YouTube copyright notice

Posted: Sun Jun 09, 2019 8:31 pm
by AndyJ
Hi Mubuer,

The main sort of misrepresentation would be that the person filing the DMCA notice was not the actual owner of the copyright. A would not misrepresent the facts just because it was not obvious that something was fair use. The balancing act which the court has to go through in order to decide fair use is relativerly complicated and a layman is not expected to be able to do this instinctively. This would be even more the case if A lived in the UK and was evaluating the issue from the UK legal perspective.

If B sues A for summary judgment (a pre-emptive strike, so to speak) then there are realistically only two grounds for doing this: firstly that B can prove that A isn't the copyright owner, or secondly, that the use of the disputed images was fair use. Any other more complicated counter-claim is likely to need a full trial and thus would not be suitable for a summary judgment hearing.