This morning it was observed that a number of videos using footage from the film Downfall to mock pop culture issues had been taken off YouTube for copyright reasons. But how do the creators of those videos go about challenging that decision, given that the meme clearly falls under fair use? Well, the Electronic Frontier Foundation has put together an awesome and exhaustive guide to how video makers can approach a takedown. But allow me to give you the Cliff’s Notes, along with some comments that pertain directly to today’s Downfall meme takedown.
First you have to figure out what kind of takedown you’re dealing with. In the case of today’s Downfall meme takedowns, both Corynne McSherry of the EFF and Ben Moskowitz of the Open Video Alliance believe that the videos were unavailable not because of a DMCA takedown notice, but because of YouTube’s Content ID matching program, which identified the Downfall footage being used and automatically took the videos offline.
There’s no clear way to determine what kind of takedown has happened to you, though, without carefully reading the language used on the takedown notice. So if the message on your video reads something like “This video contains content from [NAME OF COPYRIGHT HOLDER HERE], who has blocked it on copyright grounds,” then you’re dealing with a Content ID notice. You can also go to your YouTube account and look at your video listings — there’s a section that lists the videos which have been identified as Content ID Matches.
To dispute a Content ID removal with YouTube, click the View Copyright Info button for the video in the Content ID Match section or consult their help options. After some slightly terrifying legal language (“There are very few valid reasons for disputing a claim. Please review the information below, because submitting an invalid dispute could result in penalties against your account”), you will be asked to complete the below form.
Let’s say YouTube agrees that this was a wrongful takedown, and restores your video — but According to a YouTube spokesperson, once a user files a dispute the video immediately goes back online — but let’s say that the content owner doesn’t agree with that decision. Well, that’s when the copyright holder will file a DMCA takedown against you. To dispute this claim, you have to file a counter-notification, which McSherry said, “says to the content owner ‘If you think this is infringing, you can sue me.’ It’s calling their bluff.” If the content owner doesn’t file suit against you in the 10-14 days following your counter-notification, then YouTube will restore your video online.
The DMCA counter-notification process is a lot more complicated than protesting a Content ID takedown, though, and must include, per the EFF:
“Your contact information, a signature, a statement under penalty of perjury that the “material was removed or disabled as a result of a mistake or misidentification,” and your consent to the jurisdiction of your local federal court (if the copyright owner elects to sue you).
Which is why the EFF recommends consulting a qualified attorney before filing one.
On the surface, the Content ID system does provide YouTube a means of working with copyright holders to protect their content while also providing video producers with a less formal process to defend their work than the DMCA counter-notice. But according to McSherry, while someone who seeks to file a DMCA takedown has an obligation to consider fair use issues before sending the notice, the same doesn’t apply to Content ID takedowns — which means that the casual striking of content is becoming a lot more common, with just one recent example being the removal of audio from a lecture given by Lawrence Lessig last month.
“In [the case of Downfall], I’m not convinced Constantin Film consciously removed these parody videos. Maybe they are trying to stave off unauthorized views of their IP. But when the ContentID net is deployed, lots of dolphins get caught along with the tuna,” Moskowitz said.
McSherry meanwhile commented that the EFF has a Takedown Wall of Shame that celebrates the worst “bogus copyright and trademark complaints,” and that the Downfall parody removals would join it soon. “These videos are clearly fair use,” she said.
Despite the fact that all this and more information is out in the open, and available both via sites like the EFF and YouTube’s own help section, Moskowitz doesn’t believe that many people know what their options are when it comes to disputing takedowns. “To YouTube’s credit, the process of reinstating a video after a ContentID flagging is pretty straightforward and clear,” he said. “But users are easily discouraged, and maybe even frightened. It’s also worth noting that ContentID is a para-copyright enforcement regime. Once the videos are reinstated, copyright holders can return with a proper DMCA takedown and force videos offline again.”
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