YouTube's Deal With Universal Blocks DMCA Counter Notices

[nsane.forums]

When content is removed from the Internet following a DMCA complaint filed by a rightsholder the user who uploaded the content gets a chance to file a counter-claim. If successful this should reinstate the content but on YouTube things now appear to be working somewhat differently. It transpires that YouTube has a special deal with Universal which sees content taken down at the record label’s request and DMCA counter notices blocked with no chance of appeal.

Over the past few years and during the last 12 months in particular the DMCA notice has become a key tool for rightsholders to fight copyright infringement online. However, on thousands of occasions the original notices are flawed, targeting incorrect or non-infringing ‘fair use’ content.

In these instances someone targeted by a wrongful DMCA takedown is usually given the chance to file a counter-claim stating why content should not have been removed. Content then has the opportunity to be reinstated or removed if the dispute cannot be settled.

While counter-claims provide a balance to a DMCA complaint, there is evidence to suggest that YouTube, one of the biggest receivers of copyright notices online, is in some cases disallowing them.

When a video is uploaded to YouTube it’s put through the company’s Content ID system and compared against digital fingerprints provided by copyright holders to check for infringement. YouTube user John McKelvey has discovered that if you fall foul of signatures provided by certain rightsholders then your content gets taken down – and remains down – even if no copyrights have been infringed.

Here’s what happened. McKelvey has been publishing an ongoing series of hip hop history videos, each taking a look at classic, rare or overlooked records. One featuring Eric B. & Rakim caused the latest issues.

Fair Use

“This video, like all my other videos in the same vein, are Fair Use in a number of ways at the same time,” McKelvey told TorrentFreak.

“First of all, I only play a short portion of the songs (in this video, I play clips of three songs, though UMG’s claim was only against one of them), within the context of a scholarly, critical review of the record. The video is non-commercial/non-profit; I didn’t even have YouTube ads on the video.”

Furthermore, McKelvey has gone to some length to ensure that his videos feature only incomplete clips, all of them deliberately recorded at below MP3 quality so no one will be inclined to rip them. At every available opportunity he encourages people to buy content and refuses to upload MP3s, even though he says viewers are constantly asking him to.

Unfortunately Content ID doesn’t understand the concept of fair use (or being ‘fair’ in general) and when the system scanned a video of McKelvey chatting about an old Eric B. & Rakim vinyl it was flagged up as infringing and disabled.

McKelvey sent TorrentFreak copies of his correspondence with YouTube as he tried to get his video back online. The responses from YouTube highlight a worrying development, one which means that certain labels are ALWAYS right in copyright disputes, even when they’re wrong.

Text of counter notice filed by McKelvey

My video is NOT a competitor to sales of the [Eric B. & Rakim] song. It directly encourages viewers to buy it for themselves. Anyone seeking a pirate copy would in no way be happy with my video as a substitute.

YouTube email to Universal advising of McKelvey’s counter-notice

We received the attached counter notification in response to a complaint you filed with us. We’re providing you with the counter notification and await your notice (in not more than 10 business days) that you’ve filed an action seeking a court order to restrain the counter notifier’s allegedly infringing activity. Such notice should be submitted by replying to this email. If we don’t receive notice from you, we may reinstate the material to YouTube.

YouTube mail to McKelvey 11 days after filing of counter-notice

Thank you for your counter-notification. The complainant has reaffirmed the information in its DMCA notification.

YouTube has a contractual obligation to this specific copyright owner that prevents us from reinstating videos in such circumstances. Therefore, we regretfully cannot honor this counter-notification.

——————

McKelvey was then invited to sort the matter out with Universal directly via the [email protected] email address and was pointed to this page as explanation. It appears to have been published or updated April 2 and contains the following text:

YouTube enters into agreements with certain music copyright owners to allow use of their sound recordings and musical compositions. In exchange for this, some of these music copyright owners require us to handle videos containing their sound recordings and/or musical works in ways that differ from the usual processes on YouTube.

In some instances, this may mean the Content ID appeals and/or counter notification processes will not be available.

——————

No right to reply

So, it seems that where YouTube has a record label deal (and that could be any label, no list is provided), those labels are allowed to take down any content they like for any reason they like – infringing or not – and YouTube will block its users from having the right to reply.

As noted by FairUseTube, while YouTube has a legal obligation to remove allegedly infringing content on request the same cannot be said for accepting counter-notices or reinstating content. Nevertheless, the one-sided nature of the process is bound to increase frictions between those defending right to fair use and those who feel rightsholders are constantly eroding it.

“I was shocked when the reply came in saying how it didn’t matter if my video was Fair Use or not, because they had some secret contract with the labels and were refusing to honor my counter-notice anyway,” McKelvey says.

“It was very frustrating, because it showed me that it no longer mattered whether I had a legal right to post my videos. At least in this case, YouTube has stopped siding with the users because they’ve apparently been bought off by UMG. It’s also frustrating because this new policy was not disclosed to us, so we’re set up to file useless counter-notices only to have them work against our channels,” he concludes.

While YouTube now openly admits having preferential deals with labels, that hasn’t always been the case. In December 2011 the Google-owned company initially allowed Universal to blatantly censor Kim Dotcom’s ‘Mega Song’. It was later reinstated.

The “infringing” video (on Dailymotion)

http://www.dailymotion.com/video/xylfk0_eric-b-featuring-rakim_music

View: Original Article

[Ambrocious]

Just compliance and serfdom training...nothing to see here, move along.

[insanedown58]

Google is to blame.

[humble3d]

NBC Universal Warns File-Sharers of Criminal Prosecution :(

NBC Universal is one of the copyright holders involved in the "six strikes" copyright alert system but the warnings it sends out to subscribers of non-participating ISPs stand in stark contrast to the educational approach of the program. A threatening email warns the alleged file-sharers that they risk substantial monetary damages, criminal prosecution and Internet disconnections.



After years of negotiating and planning the "six strikes" copyright alert system finally went live last month.

Under the program, copyright holders will alert ISPs about infringing material being shared on their networks and the providers will send friendly and educational alerts to affected customers.

However, since not all ISPs are participating in the program, several copyright holders also send out separate DMCA notices to other Internet providers. These notices are not new, but the threatening language used by the movie studio goes directly against the goal of the copyright alert system.

As can be seen below, NBC Universal takes quite a different approach in the notices that fall outside the scope of the copyright alert system. Let's take a look at a notice a BitTorrent user received a few days ago for allegedly downloading a TV-show.

In the first paragraph there's already a mention of possible legal action.

"This notice provides you with the information you need in order to take immediate action that can prevent serious legal and other consequences."

Later on NBC Universal makes the threat of legal action more concrete by stating that the infringer risks massive fines and even criminal prosecution. Again, this appears to induce fear more than educating the recipient.

"The illegal downloading and distribution of copyrighted works are serious offenses that carry with them the risk of substantial monetary damages and, in some cases, criminal prosecution."

Perhaps not as threatening as criminal prosecution, NBC Universal also points out that illegal downloading can lead to the termination of one's Internet account. Interestingly, ISPs and copyright holders participating in the copyright alert system have specifically stated that disconnections are absolutely not going to happen under their program.

"Copyright infringement also violates your Internet Service Provider's terms of service and could lead to limitation or suspension of your Internet service."

While the above statements are all correct, it's clear that there's now a great divide in how subscribers of different Internet providers are approached.

Those who don't fall under the copyright alert system get a more threatening treatment than those who do. Of course the latter group will eventually face so-called mitigation measures, but one has to wonder which of the two notices is more effective.

TorrentFreak contacted the MPAA for a comment on the different approaches of their member companies outside the copyright alert system, but we have yet to hear back from them.

The full notice NBC Universal sent out is pasted below. For reference, the Copyright Alert email that's sent out to Comcast users when they are caught pirating can be found here.

—

You are being contacted on behalf of NBC Universal and its affiliates ("NBC Universal") because your Internet account was identified as having been used recently to illegally copy and/or distribute the copyrighted movies and/or television shows listed at the bottom of this letter. This notice provides you with the information you need in order to take immediate action that can prevent serious legal and other consequences. These actions include:

1. Stop downloading or uploading any film or TV shows owned or distributed by NBC Universal without authorization; and

2. Permanently delete from your computer(s) all unauthorized copies you may have already made of these movies and TV shows.

The illegal downloading and distribution of copyrighted works are serious offenses that carry with them the risk of substantial monetary damages and, in some cases, criminal prosecution.

Copyright infringement also violates your Internet Service Provider's terms of service and could lead to limitation or suspension of your Internet service.

An industry website, www.respectcopyrights.org, offers step-by-step instructions to ensure that your Internet account is not being used to violate the copyright laws. The site also can point you to an array of legal choices for enjoying movies and TV shows online. You can also learn there how movie theft damages our economy and costs thousands of Americans their jobs.

If, after visiting www.respectcopyrights.org you still have questions, or if you believe you have received this notice in error, you may contact NBC Universal by email at [email protected] or by calling (818) 777-XXXX. Please cite the Reference ID noted at the top of this letter in the subject line of any email or voicemail you may leave. You should take immediate action to prevent your Internet account from being used for illegal activities. Today, there are many ways to enjoy movies and TV programs legally.

The undersigned has a good faith belief that use of the NBC Universal Property in the manner described herein is not authorized by NBC Universal, its agent or the law. The information contained in this notification is accurate. Under penalty of perjury, the undersigned is authorized to act on behalf of NBC Universal with respect to this matter.

This letter is not a complete statement of NBC Universal's rights in connection with this matter, and nothing contained herein constitutes an express or implied waiver of any rights, remedies or defense, all of which are expressly reserved.

Sincerely,

*******

c/o NBC Universal Anti-Piracy Technical OperationsNBC Universal Warns File-Sharers of Criminal Prosecution - by TorrentFreak