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.

Regards,

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.

Tags: , , , , , ,

66 Responses:

  1. Blake Winton says:

    Seems to play fine in Canada, which strikes me as fairly odd, given how closely we're trying to follow the US in these matters.

  2. Bart Schuller says:

    not blocked in The Netherlands.

  3. Sven Wallman says:

    Video plays fine in Sweden.

  4. Jon says:

    Plays well in Germany. And usually half of the videos you post are blocked over here. Because they contain music which someone owns.

  5. eSyr says:

    Plays fine in Russia.

  6. Jon Millett says:

    Not blocked in Chile. Thanks for posting this.

  7. Plays here in the UK.

  8. I think we can all agree that the process is flawed, but YouTube is not the enemy here. Technologists across the country need to encourage voters to demand reform.

    If YouTube doesn't do this "stinky" process, the courts tell them the laws in this country are against them. They've fought this fight, and made considerably good progress all-things-considered.

    Really it's up to everyone to A) Meet their congressmen... lobbyists can, so can you. B) Get influential in your community... so your congressman/congresswoman knows you're influential C) Remind them that bills impacting copyrights and fair use matter to you.

    I've heard every sob story about how that doesn't work. Usually it's from people who ten years ago said Wal-Mart would never face competition from Amazonian rivals, etc, because they're too big to fail or be outgunned legislatively.

    YouTube's appeal process is a joke - don't just gripe to Google... get to know your legislators.

    • a commenter says:

      > I think we can all agree that the process is flawed, but YouTube is not the enemy here.

      You can either be a slave to the process, or you can fight for reform. YouTube chose the former. They are the enemy here.

      The legal fear here is that they'd lose their DMCA safe harbor protections, which could happen whether or not they had a robot overlord demanding you never post anything copyrighted ever. Google simply bent over backwards to keep Hollywood happy. And that makes it Google's problem.

    • Tom Lord says:

      > "YouTube is not the enemy here."

      Christopher can you please show me the court decision that says Google, with one of the highest rates of profit on the market, not only must have a takedown/appeal process but also requires that the process must be extremely dickish and biased in favor of a few corporate leaches?

      • The YouTube appeal process is the result of several court rulings and lengthy appeals... Google has to ensure they are compliant with multiple federal district court rulings. Rulings that, at times, may even conflict with one-another.

        I would say Viacom v. YouTube would be the most paramount, but there are so many others I couldn't begin to create a list... but I'm sure Google Legal has one.

        • Tom Lord says:

          The YouTube appeal process is the result of several court rulings and lengthy appeals...

          And placing a higher premium on their rate of profit than on not being dicks to customers. Did you read jwz's tale of woe or are you mostly just reciting standard "defend youtube" talking points?

          Read the "copyright strike" system behind the link. That's Google's creation, not a court's. Its punitive, unconditional "lose your youtube privileges" aspects are about cost control at the expense of users. See jwz's comments that begin "But second, let's look at the proposition they are actually making to me right now: [....]"

          • It may be Google's creation, but the creation was built to comply with said rulings and their interpretations of DMCA Safe Harbor. If you have a better system (that complies with said rulings), publish a white paper and Google will probably implement it... or hire you.

            Google is not out to get users. Google agrees with fair use in these cases, but court interpretations of DMCA Safe Harbor led to them having to implement this nutty process. It's not their fault - it's their best solution. If you have a better one (that will clear the courts), I'm all ears.

            • Tom Lord says:

              Here's my "white paper": They should spend more money looking carefully at escalated appeals. If a losing appeal was nevertheless consistent with the user being a reasonable person, then they not penalize that user. If the appeal was winning, they should remember that that user has a track record of getting these things right. They should not have a rigid, automated policy of "copyright strikes".

              If they are unable to do this profitably they should make a priority of shutting down the service or altering it in ways that better serve users, not advertisers and Big Media partners.

              They could call this plan "Actually making an effort not to be evil rather than an effort to train minions to accept a redefinition of evil."

              If they are unable to make a priority of something like that, the rank and file should get organized, get some solidarity, and walk off the job.

              I can haz Google job now?

              • A content provider can't arbitrate an appeal for you. Legally, they can't. If, at the end of the day, the content provider still insists that you are infringing, it's between you and the content provider. All they can do is act as the go-between.

                If you think "add more humans" to the customer service aspect is the fix, you really need to provide a viability assessment, factoring in the number of hourly complaints with the workforce, scope of effort, and people needed to implement without causing an at-fault situation for the content provider.

                That's what will get you a job, provided you can show (with data) that it will actually improves the workflow.

                • Douglas Knight says:

                  The strike system is the opposite of it being between the user and the copyright owner.

                  • You have the right to press on and continue the matter with the copyright owner though. The strike system is a way for Google to avoid having to disclose the personal contact info of people to the CP's for lawsuits (a la Kazaa a decade ago).

                • Tom Lord says:

                  This is an interesting factoid ("A content provider can't arbitrate an appeal for you. ") that literally has nothing to do with anything that I've said.

                  As for "viability assesments, factoring in yadda yadda" what part of "if you can't build it in a way that doesn't suck, don't build it at all" eludes you?

    • Douglas Knight says:

      Bullshit. This process is 100% created by Youtube and has nothing to do with the law.

      Youtube has the option of following the DMCA process, which is very simple: (1) content goes up; (2) companies complain; (3) content goes down for 2 weeks; (4) if jwz says he has the right to publish the content, it goes back up and the companies' only recourse is a lawsuit.

      PS - Jaime, this has nothing to do with DMCA, so don't call it DMCA, even if Youtube lies and says it is DMCA.

  9. a person says:

    Works in Romania.

  10. Dave says:

    Works in Ireland.

  11. ric8ard says:

    Works in Switzerland. Btw, did you ask Coil for permission to use the unreleased themes? ;) (oh wait, they're dead... :_( )

  12. Tiago says:

    Working in Brazil.

  13. Rich says:

    Yup, video plays fine here, because I downloaded it and converted it to a free format.

    The effect of the use upon the potential market for, or value of, the original work:

    You should have said it enhances the market value. I for one had never heard that the films after #3 even existed, and now I have.

  14. Eliot says:

    What you can do to check where a video is working or not is use the youtube json api. Here's a link for your video, all you have to do to check other videos is replace the ID in the url. http://gdata.youtube.com/feeds/api/videos/xHyFLEMDXDQ?v=2&prettyprint=true

    Cmd F to find "restriction" and you'll see the tags which say what countries it's blocked in. Currently your video is only blocked in the US

  15. Ranunculus says:

    The law says if you file a counterclaim then the provider has to put it back up in 10-14 days unless the rights holder gives notice that they have filed an action seeking a court order. 17 USC 512 (g)(2)(c)

    • Douglas Knight says:

      Only if they want to claim DMCA safe harbor provisions. Since most video and music copyright holders are happy with the situation, they don't really care.

  16. Renan Birck says:

    Seems to play fine in Brazil.

  17. So how did they reply?

  18. Daniel says:

    Blocked in Sweden

  19. Omer says:

    Works just fine in Israel.

  20. Fernando J. Pereda says:

    Works in Spain.

  21. Billy says:

    Works in Australia

    • Cheshire Noir says:

      Correction: WORKED in Australia. Now blocked because of copyright claim from Image Entertainment.

  22. Apreche says:

    Your interpretation of options A and B is incorrect. We have posted many fair use videos on YouTube that have had claims against them. Every single one of these claims has been lifted. Let me explain.

    Me: I believe this video is fair use.
    Youtube: Other corporations disagree, and we trust them implicitly. Your choices:
    Agree with us that you are a dirty lying dirty thief, and we'll still allow it to play in some countries.
    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.

    Here's what they really mean.

    If you appeal a video all the way to the end past all the scary pages, there are two possible results.

    Option A: All claims against your video are removed. The end. Your video is happy!

    Option B: After receiving your contact info, the claimant came after you with actual lawyers in actual courts. You'll have your day in court, if you want it. If you don't fight in court, or lose in court, your video is taken down and you get a strike. If you win in court, you win!

    Every single time we have appealed a video all the way to the end, and that's many times, all claims were removed. Not one claimant has ever actually dared to go all the way and attack us through the legal system. Thus, Option A is the result of appealing all the way. It's a real risk that they could come after us, but we're ready for them. Since we're only appealing videos that we believe are actually fair use, we'll fight. If you're not willing to fight, then you can't really complain that you lost.

    • Sean Barrett says:

      I think (but I'm not 100% sure) that jwz's (a) and (b) were between (a) not appealing and (b) appealing, not between the two "OR" cases in youtube's appeal page. But even then, yes, it sounds like your outcome is very different from what he thinks is on the table in the case of (b). Thanks for sharing it, as that seems to make this a bit less gross.

      • anonymouse says:

        In particular, it's not about what the options actually are but about how Youtube is trying to scare people away from even trying, despite (because of?) the fact that the appeals generally end with all claims being removed. Maybe to discourage people from trying to fight the system so that others can say things like "If you're not willing to fight, then you can't really complain that you lost."

    • This is great to know. I've been researching this, under the concern that companies are allowed to make copyright claims against vast numbers of random videos, with the game plan that if a claim is disputed, they drop it, but if the claim isn't disputed, they can start aggregating monetization revenues. My worry was that if I published a video containing work created entirely by myself, and a random company put a claim against it, then I'm in an untenable situation of risking the standing of my channel if I dispute and they raise their bet. Thanks.

  23. LafinJack says:

    That's just them being vindictive...

    And never get in a vindictiveness fight with jwz.

    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.

    This is wrong. There may be adverse legal consequences for the video poster, but there will never be adverse legal consequences for shotgun filing thousands (tens of? hundreds of? millions?) of spurious DMCA takedown orders.

  24. Jered says:

    Works fine in China.

  25. Ben Hubbard says:

    Works fine in Burkina Faso...

  26. Marcos Dione says:

    Works fine in SE France.

  27. Seba says:

    Works just fine in North Korea.

  28. Rand says:

    So, what I want to know is when do YOU get THEIR contact details? It's not fair that they get all the info on you, but you are not allowed to know who the big bad wolf is that is coming after you.

  29. makc says:

    Not blocked in Montenegro. I guess I'll go download it before it changes.

  30. Zip, the What-is-It says:

    This may be coming from an ignorant monkey-man, but, what if you flopped the video left/right? Would the robots still recognize the copyrighted material? The human eyes would, and, I think, the visuals work fine either way. I realize this is a bigger situation you're engaged in, but the flop might get the video unblocked from Amerikkka.

  31. Works fine in france. You could consider moving out of US I think haha

  32. Nico says:

    Funny fact.

    1. AFAIK German law does not know the concept of "fair use".
    2. Plays fine in Germany while blocked on the US ;)

  33. Julian Calaby says:

    Me and my kangaroos can watch it fine in Australia

  34. Bayrolles says:

    Not blocked here in Carcosa.

  35. db48x says:

    That's quite a wide variety of VPNs.

  36. Dero says:

    Works fine in Agartha.

  37. Derek Balling says:

    What you're describing for #3 is how the process is supposed to work.

    They are supposed to assert - under penalty of perjury - that they are the exclusive rights-holder and that they have not given you permission to use the work. (the claim)

    You have the right, under the DMCA, to file a counter-claim - under penalty of perjury - that you do have legal rights to use the work (whether based on you having a license, being the rights-holder yourself, or through some fair use exceptions). (the counter-claim)

    To file a legitimate counter-claim -- just as to file a legitimate claim -- the content provider must get an actual legal declaration from you, just as they have from the rights-holder. And once you do that -- if your counter-claim doesn't hold up, then you're on the hook potentially for beaucoup cash and damages.

    It's certainly behooves YouTube to make sure that the person who is going to assert "yes, I'm really allowed to use this video" on the second go-round is really really sure they know they're in the right and are prepared to fight it in court if it comes down to it, because that is the next step. They don't want people just clicking #3 and going "yeah, I know, but I think this is fair use" (even though it's not) "and I want my video up there!", only to find themselves getting heinous statutory damages attached to them in short order.

    You're clearly in the right on this one, so clicking #3 is making a valid fair use claim, though. So keep up the good fight on it. :)

  38. LafinJack says:

    Tried every available country choice at http://www.proxfree.com/youtube-proxy.php , but seems to be gone everywhere now.

    Anyway, found this and thought you might like it: http://www.thepuzzleboxmaker.com/hellraiser-puzzle-box/

  39. Wyatt Ward says:

    Years ago, I uploaded a video of me playing the original Castlevania for the NES/Famicom. Apparently, Sony Music Entertainment holds a copyright on the background music of stage 3. So my video is blocked in Germany. I appealed and was instantly denied, just like you. Youtube is a JOKE.