This this afternoon I recieved this when I opened up my YouTube page on my phone.
Let’s say good ol’ Rob took offence instead. He does own the copyright to most of the content I used in the video. Could he, if he wanted to, file a DMCA over it and take it down? The answer is no.
DMCA and the U.S. Copyright Act of 1976 accounts for “fair use” pursuant to 17 U.S.C. § 107 of the U.S. Copyright Act of 1976.
Notwithstanding the provisions of sections 17 U.S.C. § 106 and 17 U.S.C. § 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include:
- the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
- the nature of the copyrighted work;
- the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
- the effect of the use upon the potential market for or value of the copyrighted work.
The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.
There’s 4 factors determining Fair Use:
1. The purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes
Courts typically focus on whether the use is “transformative.” That is, whether it adds new expression or meaning to the original, or whether it merely copies from the original.
2. The nature of the copyrighted work
Using material from primarily factual works is more likely to be fair than using purely fictional works.
3. The amount and substantiality of the portion used in relation to the copyrighted work as a whole
Borrowing small bits of material from an original work is more likely to be considered fair use than borrowing large portions. However, even a small taking may weigh against fair use in some situations if it constitutes the “heart” of the work.
4. The effect of the use upon the potential market for, or value of, the copyrighted work
Uses that harm the copyright owner’s ability to profit from his or her original work are less likely to be fair uses. Courts have sometimes made an exception under this factor in cases involving parodies.
So under Rob’s theoretical DMCA claim, he would be not able to file a takedown legally.
When filing a DMCA, you are signing a legally binding document, under penalty of perjury, that you understand DMCA and U.S. Copyright Law and it clearly is an infringement of your copyright. Title 17 U.S.C. Sec. 512(f)
(f) Misrepresentations. – 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.
And knowingly is important, but it can’t be used as a defense in YouTube’s policy. When filing a DMCA Takedown on YouTube there’s three checkboxes you must tick to file it:
By checking the following boxes, I state that:
∗ I have a good faith belief that the use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law;
∗ This notification is accurate; and
∗ UNDER PENALTY OF PERJURY, I am authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
∗ I acknowledge that under Section 512(f) of the DMCA any person who knowingly materially misrepresents that material or activity is infringing may be subject to liability for damages.
∗ I understand that abuse of this tool will result in termination of my YouTube account.
So legally, such a defense will not hold up in court.
So what happens next? I notified VTV he had 24 hours to repeal his takedown or I will file a counterclaim. This clock ends December 20, 2013 at 14:00 PST. Within 10 days of the filing 4 things will happen:
My information will be provided to Neil.
My video will be reinstated
The strike against my channel will be lifted
VTV’s YouTube account(s) may suffer termination.
In order for the video to be removed thereafter, he would have to file a lawsuit against me and risk reimbursing my legal fees or lost monetary damages I might suffer (days lost from work, traveling…etc.) I’ll also file an injuction preventing him from filing further DMCAs against myself.
Now I’m no fan of censorship. Having his channel terminated I don’t like, but it’s my only option to fight this blatant form of censorship against me. VTV did not like the YouTubePoop I made, which is in full compliance of U.S. copyright law and abused the legal framework to remove it. I can’t stand idle while people abuse this system and so I will be following through. So I have my hands tied. Sorry VTV. You can still stop this. Stop being a bitch, and be a man. Repeal the takedown.
Here’s a link to the video that was taken down. Once this has been resolved it will be viewable again.
UPDATE: Because I was a little drowsy from donating blood (because I’m a greedy capitalist who only cares about money and not ever helping anyone) I couldn’t stay up until 2:00 PM, so I filed my counter claim at around 6:00PM when I woke up.
UPDATE: VTV responds.