Youtube's joke of a fair-use appeal process

Remember last month, when I was working on a screen saver and I reviewed all nine Hellraiser movies and made a supercut of every on-screen appearance of the Lament Configuration?

As soon as I posted it, it was immediately blocked with seven content-ID matches. So I filed a DMCA fair-use counter-claim, because this video -- made of dozens of 5 second clips from these films for the purpose of analyzing the special-effects techniques that went into them -- is clearly fair use.

Well, yesterday they finally replied, and I thought you'd be interested to know what that looks like, because it is the excrement of a bull and it stinketh:

Copyright Notice: The Lament Configuration, Supercut

Your video may include clips that are owned by a third party. To watch the matched clips please play the video on the right. The video will play from the point where the matched content was identified.

Your video is blocked in some countries.

Copyright details:

  • 1:53: Visual content administered by:
    Starz Media LLC: Claim released.
  • 10:18: Visual content administered by:
    MegaTube: Claim released.
    Miramax : Dispute rejected, claim has been reinstated.

  • 0:17: Visual content administered by:
    Starz Media LLC: -

  • 8:10: Visual content administered by:
    MegaTube: Claim released.

  • 4:05: Visual content administered by:
    egeda: Dispute rejected, claim has been reinstated.
    Image Entertainment: Dispute rejected, claim has been reinstated.

I have no idea who "MegaTube" is (those words are impossible to search for) but I'm guessing they're one of those companies that just files copyright claims on everything in order to get adwords on it, and give up as soon as someone complains.

For the others, and to nobody's great surprise, how this works is you say "Fair use!" and Youtube asks their corporate overlords what they think. Then MPAA content mafia then replies, "Well yes, that looks like fair use to me, too! We're so sorry that our robot, with no human oversight, accused you of being a dirty thief." Just kidding, they don't even believe in the concept of fair use, so they say "no".

The conversation we just had (and by "we" I mean "me and the robots") is:

  • Robot: YOU ARE A THIEF
  • Me: This is fair use because XYZ
  • Robot: NO

Nice that there is no explanation or justification for their opinion.

So after that, you have three options you can click:

  1. OK, got it (in a giant box, bigger than the other links below it)
  2. If you think this is an invalid claim, you can file a dispute.
  3. If you still think this is an invalid claim, you can file an appeal.

I already clicked #2 last time, so I don't know why it's still there, so let's see what happens when you click #3... You get a page that has an "Error Dialog"-style box, with a big yellow MTA "warning triangle" and everything, that says:

Appeal reinstated claim

Are you sure you want to appeal?

You will be required to provide your contact information to the claimant.

An appeal will result in either:

  • the release of a claim on your video
  • OR a legal copyright notification from the claimant. In this event your video will be taken down and you will receive a copyright strike on your account. If you have received additional copyright strikes, this may suspend your YouTube account Learn more

OH NOES! If I dare to dispute their rejection of my claim, they're going to know who I am and there's going to be a legal hoo-ha something-or-other!

Ok, first of all, it's obvious that they're just trying to scare people with the way they're phrasing this here. "If you click this button, terrible things will happen to you! The sky will darken with lawyers!" They intend most people reading this, who don't understand how this works, to interpret that as "if you click this button, someone's going to sue you."

But second, let's look at the proposition they are actually making to me right now:

  • Me: I believe this video is fair use.
  • Youtube: Other corporations disagree, and we trust them implicitly. Your choices:
    1. Agree with us that you are a dirty lying dirty thief, and we'll still allow it to play in some countries.
    2. Disagree with us, and we're going to take it down everywhere forever. And I hope you know that this will go down on your permanent record.

How does that make any sense at all? If today it's reasonable for it to be un-blocked in some countries, how does my filing of an appeal change that?

That's just them being vindictive, and trying to discourage anyone from ever filing an appeal.

So let's ride this turd-train to the end and see what happens. I clicked continue, and got this form:

Your full name and contact information will be shared with Image Entertainment,egeda.

  • Your full legal name
  • Email address
  • Street address, City, State/Province, ZIP/Postal code, Country

You originally disputed the claim based on fair use. Please explain why your use of content is subject to fair use according to the following statutory factors. Learn more

  • Purpose and character of use:
    (I said: "Nonprofit, educational use. It is an analysis of how certain visual affects were achieved in nine different films.")
  • Nature of copyrighted work:
    (I said: "The material examined is from all of the nine "Hellraiser" films.")

  • The amount and substantiality of the portion used:
    (I said: "Each clip is extremely short, roughly 5-20 seconds each.")

  • The effect of the use upon the potential market for, or value of, the original work:
    (I said: "None.")

  • Please confirm your agreement with the following statement:
    I acknowledge that filing an appeal may lead to legal proceedings between me and the complaining party to determine ownership. I am aware that there may be adverse legal consequences in my country if I make a false or bad faith allegation by using this process. I understand the personal contact information I provided above will be shared with the complaining party for purposes of my appeal and consent to this disclosure. I acknowledge that this information may be transmitted outside my home country as part of this process.

  • Type your full name to serve as your electronic signature

Incidentally, one of the countries in which this video is now blocked is The United States of America. I wonder what countries it is not blocked in? (Update: Apparently it's only blocked in the US.)

Previously, previously.

Update: Even though my counter-claim is still in progress and unresolved, in early November I got another takedown from Image Entertainment, who had already issued one. I guess that I can expect to be receiving exactly the same complaint from exactly the same robots for the rest of my life, no matter what happens.

Fabulous system you have here, Youtube. Just glorious.

Update 2: On Nov 20, I got email from Youtube saying:

In accordance with the Digital Millennium Copyright Act, we've completed processing your counter-notification regarding these video(s):

This content has been restored unless you have deleted the video(s). Your account will not be penalized.

...which sounds great -- except for the fact that as of Nov 25, that URL still tells me "This video is not available in your country."

Update 3, Dec 1:

I had replied to that message asking, "Then why does that video still tell me 'This video is not available in your country'?" and they sent me back their usual boilerplate:

Thank you for your message.

A content owner claimed content in your video using YouTube’s Content ID system.

Specifics of the policy applied to your video are in the copyright notices section of your YouTube account. There, you may click the underlined link to the right of the video's Edit menu to learn more about the claim.

If you believe that this claim was made in error, you can dispute it directly from that page. If you dispute the claim, the claimant will have 30 days to review your dispute.

Please note that some Content ID claims can affect your account standing, causing you to lose access to certain YouTube features.

Please note that YouTube does not mediate copyright disputes.


The YouTube Legal Support Team

I wrote back, "I have *already done this*. Why else did you just send me this message saying "we've completed processing your counter-notification" for this same video? How many times are you going to make me jump through this same hoop?" I eagerly await their reply.

In the meantime, I submitted the exact same appeal against the exact same tormentors, Stars, MegaTube and Miramax.

How many more months do you think they will drag this on? How many people do you think would be as stubborn as I am, to keep up with this fight?

Update 4, Jan 2: It appears that the video is again available. I guess that the fourth (or fifth?) time I disputed the claim has finally timed out. Though I received no notification telling me that this was the case. I wonder how long this will last.

It has now been four and a half months since this process began.

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