Hacker News Reader

> "Guilty until proven innocent" is exactly how "DMCA safe harbor" is designed.

No, it's not. Google has gone so far above and beyond the DMCA's requirements here that it's hard to even see the DMCA at play at all.

If they were only following the DMCA rules, the video uploader would have the opportunity to send a counter-claim to Google, saying that they don't believe the content is infringing. Google then would put the video back up, without taking on any liability. If the original DMCA claimant still believes there's infringement going on, then their only recourse is to file a lawsuit against the uploader (not against Google, as Google has done their duty under the safe harbor provisions).

But instead, Google has decided to bend over backwards and create this Draconian mess that prioritizes the will of the big copyright holding cartels.

>, then their only recourse is to file a lawsuit against the uploader (not against Google, as Google has done their duty under the safe harbor provisions).

Your assessment is incorrect for the legal options a DMCA claimant will use and doesn't match how previous legal proceedings actually played out.

E.g. Viacom still filed a lawsuit against Google because they disputed that 'safe harbor' applied Youtube.[1]

Google did settle with Viacom (helped by offering ContentID as a tool) but they didn't win any definitive court ruling on "safe harbor" that makes Google lawsuit-proof in the future.

[1] Example articles from 1st page of results: https://www.google.com/search?q=viacom+lawsuit+google+%22saf...

https://www.finnegan.com/en/insights/blogs/incontestable/goo....

https://arstechnica.com/tech-policy/2014/03/viacom-and-googl...

https://en.wikipedia.org/wiki/Viacom_International_Inc._v._Y.... (from https://www.nytimes.com/2010/06/24/technology/24google.html):

> Viacom said it was not seeking damages for any actions since Google put in its filtering system, known as content ID, in early 2008.

Obviously other media giants weren't going to let Viacom be the only one with access to this profit machine, so now pretty much all global media giants have access to Content ID.

This seems very relevant, Googled settled, and probably that involved the preemptive use of content ID.

The US took down kickasstorrents and arrested its founder in Poland despite them following the DMCA. You have to suck up the media companies to be allowed to host a service these days.

The DMCA is complicated, but you may not qualify as a safe harbor if you have actual knowledge of infringing content or if you're aware of facts or circumstances from which infringing activity is apparent. Running a website called "Kickasstorrents" may not qualify.

But in the realpolitik sense, I agree. Foreign company, angry US business interests, etc. I doubt this was argued out reasonably in a court beforehand.

Torrents aren't necessarily illegal so I'm not sure why running a website called "kickasstorrents" is relevant.

I've seen a lot of software legally distributed using torrents where even the software creators link to torrents that you can use.

>Torrents aren't necessarily illegal so I'm not sure why running a website called "kickasstorrents" is relevant.

Because we all know that website and what torrents it had. That "torrents aren't necessarily illegal" are neither here, nor there. Their torrents were illegal.

(Not that I'm against it, but well, it's not like they're fooling anyone with the "torrents aren't necessarily illegal" defense for their particular case. That wasn't some FOSS/PD software torrent site, and that wasn't why people visited it, or why it was run...).

Their torrents were illegal.

Was that true in the countries where they had a local presence?

Torrents themselves are NOT illegal. They contain no copyrighted data. At all.

It's close enough though that it's a pretty easy case to make for contributory infringement.

That certainly isn’t settled law.

Good luck arguing that in court

That's more like a drug dealer caught with 200 plastic bags of cocaine saying plastic bags are not illegal, they contain no drug substances at all. Sure, but most of the torrents they had there pointed to copyrighted data, and facilitated their download, which is illegal.

More like someone telling people who their dealer is, except the dealers give away copies of books for free, some legal but most illegal.

I did download an Ubuntu ISO from there more than a decade ago, and some films that I presume were in the public domain due to their age.

Interestingly, copyright for video is very complicated, and the remastering process necessary to convert from film stock to digital generally has enough creative input legally to be considered valid for copyright protection. I don't think it's currently possible for a digital film to be aged out of copyright.

Well, my drug dealer also sold me a watch once. But 99% he had crack for sale.

> Their torrents were illegal.

Illegal in the US.

And most of the world, where international agreements hold.

> No, it's not. Google has gone so far above and beyond the DMCA's requirements here

Media companies insist that Google do more and more and they are willing to drag google into court and will lobby congress to force google and (everyone else) to bow to their whims.

Extorting 14 year old kids and broke college students for settlement money is nice and everything, but Google has very deep pockets and the the media cartels would love to get their hands on Google's money just like they want to take billions from ISPs

I do blame google for going along with it when they have the clout and resources to fight them, but the real issue is our horribly broken copyright system

Google decided to cozy up to the music and film industries to support Google Play Services. They are forced to bend to their will for their contract.

If YouTube was divorced from Google, YouTube would be friendlier to creators.

Counter argument: some of the top performing content on YouTube is made by the establishment. But then again, Google created this status quo by using their algorithm to promote content that satisfies their partners.

You are forgetting that YouTube was nearly got sued out of existence, until it bent over backwards to please the publishers.

Your theory that it went beyond the requirements of the settlement with Viacom is interesting, but unless you have insider information as to the terms of it, it is at best, speculative.

Would you stake billions of dollars on the legal theory that if YouTube followed the DMCA to the letter of the law, publishers would not be able to successfully sue them?

> Counter argument: some of the top performing content on YouTube is made by the establishment. But then again, Google created this status quo by using their algorithm to promote content that satisfies their partners.

Counter-anecdote: None of my recommended content on YouTube is from established media companies. YouTube's profiling of my account definitely puts me squarely in the "Tom Scott and Technology Connections" demographic - but even so on the times when I've let YouTube's auto-play do its thing I've never been steered towards mainstream media from Viacom and the like (unless you count the occasional clip from a decades-old Discovery Channel docu or unauthorized BBC Top Gear upload)

-----------

What weirds me out about "normal-persons' YouTube" that I see when borrowing non-tech-sector friends' devices is there's a lot of top 40 that's right there - I wonder if that's what you're seeing?

> If YouTube was divorced from Google, YouTube would be friendlier to creators.

If YouTube was divorced from Google it would have ceased existing a decade ago.

I was in Google and helped YT with their search ads (not the pre-roll and "inside the video" and all that stuff everyone hates). Anyhow, I did try looking into their actual "egress" costs and I pity the fool who has to deconstruct that for a court case.

It's immensely complicated, because videos are cached all around the world. Someone in Bangladesh watching YT videos is not always fetching them from the US, you can be sure of that.

So "profit" is definitely an opinion, not a fact. If YT was divorced from Google, it would become a fact.

> If YouTube was divorced from Google, YouTube would be friendlier to creators.

YouTube's primary means of profit is as a music platform playing RIAA protected copyrighted music mostly owned by Sony, Universal and other media conglomerates.

YouTube's profits are fully dependant on whether these conglomerates allow their popular artists to host music on the platform so your idea is very very misguided.

>"Guilty until proven innocent" is exactly how "DMCA safe harbor" is designed.

Google doesn't do DMCA: Under DMCA the alleged copyright owner whose alleged rights were allegedly violated has to file a notice and then the alleged infringer gets to file a counter notice. Then the alleged owner can either sue the alleged infringer or fuck off. The hoster - google here - would avoid liability from either direction as long as they followed the procedure, and processed valid notices and counter-notices in a timely fashion.

DMCA notices and the takedown process are NOT "guilty until proven innocent", they are "guilty until the claim of innocence", which is a big distinction.

Google is actually in violation of the DMCA when they let alleged copyright owners decide on appeals and issue "copyright strikes" as the DMCA mandates they have to stay neutral and follow the notice/counter-notice procedure. What they do here is editorial oversight on behalf of the alleged copyright owner and against the alleged infringer, which goes against the DMCA and probably Section 230.

Google doesn't care that they are in violation, because they are TooBigToGetSued by the content creators they host (well, most of them), but they are in danger of getting sued by the RIAA/MPAA and big media, and know chances are good big media would find a jury that makes the wrong decision in a lawsuit.

They also want big media to put their stuff (from music videos to movie trailers) on their platform, so they play extra nice with them, even gave them their quasi-universal internet-age DRM (widevine) they craved so much, along with ContentId.

That might be how the system worked if YouTube actually followed the law to the letter - instead YouTube actually preempts most of the DMCA claims by aggressively using Content ID to pre-flag content as soon as you attempt to upload it to their system. This approach might be better for users as a lot of content owners just assume that Content ID will catch everything they care about and thus file less post-release claims letting content creators mostly pre-vet whether a video will cause a flag on their channel buuut - it doesn't actually stop anyone from filing DMCA claims anyways.

I think it's important to distinguish what the law says and what is actually going on in the world though - since the actual DMCA system is only very occasionally relevant to creators (and usually tied to soft claims - like reading out copyrighted material or static content - like images).

"The law to the letter" is a legal fiction. There's your interpretation of what the law is, the content creators' interpretation of what the law is, and you can spend millions of dollars in legal fees and risk billions in damages to find out what the law actually says for your particular case.

That is - essentially - what I said right above. What the law actually states does still apply in the extreme case - and it applies more truly on a lot of other platforms... but YouTube has essentially preempted most DMCA claims by offering a service that proactively checks for violations - a service in no way required by the DMCA.

It is not required by the DMCA, sure, but it (or the like) is required by the various content owners who have the power to sue (or not sue) YouTube. Following the DMCA's requirements only helps after spending millions of dollars on legal fees and if you manage to persuade the courts. In lieu of that, YouTube has decided to just give IP owners what they want.

DMCA lets you file a counter-notification if you're sure that you're right (I don't know why nobody ever does this) but YouTube Content ID is much worse.

Because filing that counter-notice requires you to provide personal information, in case the person who filed the original DMCA wants to serve you with a legal notice.

From https://www.copyright.gov/512/:

> [...] To be effective, a counter-notice must contain substantially the following information:

> (iv) the user’s name, address, and telephone number, and a statement that the subscriber consents to the jurisdiction of Federal District Court for the judicial district in which the address is located, or if the subscriber’s address is outside of the United States, for any judicial district in which the service provider may be found, and that the subscriber will accept service of process from the person who provided notification under subsection (c)(1)(C) or an agent of such person.

It'd be interesting if someone set up a series LLC that would stand in for the original user by assignment, fund legal defense as much as the original user is willing to, and would just declare insolvency in the event of a bad judgement.

https://en.wikipedia.org/wiki/Piercing_the_corporate_veil

Sure, but the LLC wouldn't need to know the meatspace identity of the user. And for the LLC management it would be a bona fide arms length business. So the troll would be stuck doing discovery on the online account, which if things were setup correctly (likely for the situations where having to dox yourself is problematic), it wouldn't lead back to the user either.

There's two possible cases:

1. multiple creators assign their works to one LLC. This would probably avoid the piercing the corporate veil problem, but it would be a pretty juicy target for litigators. If they successfully win the lawsuit, they can potentially seize all works that were assigned to it, and take them down or resell them. If this happens to a video you spent weeks working on, I think I'll be pretty pissed.

2. each video/creator assign their works to one LLC. This would avoid the "juicy target" issue described above, but you'll have to be super careful to avoid piercing the corporate veil .

I'm arguing that (2) should be fine. Piercing the veil is only a concern if the managers/owners of the overarching LLC could be found liable. But this would be a bona fide business for them, so why should they? Piercing the veil of an individual series to go after the original uploader would be a definite possibility, but the whole point of this setup is for the original uploader to not have have to dox themselves to file a counterclaim.

Pooling like (1) might be an interesting approach to strengthen things further. You don't need to own a copyright to defend against a copyright claim, so the work merely needs to be licensed to the LLC series. A nontransferrable license to upload a work to a web host has little commercial value. In the worst case, a successful claimant would get the ability to contact webhosts to seize control of other accounts it then owns, and the ability to disrupt defense of other claims by seizing incoming funding. But given how useless such results would be, would it even be worth it for a troll to press that far?

You could add additional interested parties into the mix by playing the public good angle. Donate to this foundation to protect user generated content against SLAPPs, etc.

> (I don't know why nobody ever does this)

Even if your use is obviously and unambiguously fair use, the legal fees to defend yourself will range at least in the $10,000-100,000 range. (And many fair use cases aren't actually all that obvious, sadly).

We need something like anti-SLAPP for fair use, where someone with an obvious fair use defense gets to have the malicious accuser pay their legal fees for them.

Realistically most of these trolls will not sue you. And in the rare case that they do sue you, they'll drop the lawsuit if they see you have a real lawyer. It's all scare tactics.

Exactly. This goes also for legitimate copyright owners if there's a good case for fair-use. Content-ID claims (or DMCA notices) are free, so they just send them out with little review. But they are sure to take a second look before committing to a $10k-100k court battle. They have much more resources than you, but their resources are still limited and better spent on cases that are clear cut, or on sending more DMCA notices.

Sounds like a great business model if you could pay a lawyer to keep the trolls at bay.

Sorry, but it's not as if a Content ID claim is the end of the road.

You can appeal a Content ID claim. If your appeal is rejected, you can even appeal that — which forces the claimant to either issue a DMCA takedown or concede. During the pendency of the dispute process all ad revenue is held in escrow for whomever 'wins' in the end.

It's a great system, and I say that a full-time producer of content for YouTube.

Also with a DMCA you can only take a video down, not take the ads-money instead. Content-ID creates very bad incentives.

ContentID does the same thing and then falls back to the DMCA process if you and the copyright owner can't agree. It's more steps I guess but not all that different.

> There will be false-positives, there will be false claims, but they choose to play it safe.

Google choose to serve their corporate partners. They don't have to scan anything. They can have zero-friction counter notices that reactivate disputed content immediately. They can choose to only accept real DMCA notices under penalty of perjury.

The people calling the shots don't want to deal with what the law requires so Google bent over backwards to build an extra-legal system that gives all the power to one side.

Based on recent experience, Amazon KDP is similar. However, you can talk to somebody on Amazon KDP. It may take a while but after a few bussiness day someone will reply your emails.

If you have the resources and the DMCA claim was false there are further opportunities to pursue a resolution.

https://www.dmlp.org/threats/crook-v-10-zen-monkeys

for an example

Youtube does not use the DMCA nor does it comply with the DMCA.

The DMCA requires the service provider reinstate the content 14 days after the dmca is contested unless the claimant follows through on the claim by filing a lawsuit in court. Youtube does not do this.

The DMCA also explicitly states that it's protection against liability doesn't apply to service providers that do not properly implement the counter-claim reinstatement process, and as such, youtube is not covered by the dmca's shield.

> The DMCA also explicitly states that it's protection against liability doesn't apply to service providers that do not properly implement the counter-claim reinstatement process

No, it doesn't.

It says that the liability shield against the user whose material was taken down only applies when material is restored according to the counternotice process, and the liability shield against copyright claimants does not apply if material is restored other than according to the counternotice process.

But since providers tend to be able to structure their relationship with users so that they have no liability for taking material down for any reason, they rarely need that side of the safe harbor. DMCA safe harbor has an illusion of symmetry, but since the underlying liability tends not to be symmetrical, neither is the safe harbor in practice.

While I hadn't caught that part of it, technically what i said is still correct.