AS between Napster & Youtube …
Public, corporate, and legal opinions on this have changed significantly since napster was effectively put to death. Corporate would *love *to put the genie back in the bottle. Napster was caught with it half in/half out, and it got shoved back in a little bit.
Since then the genie has pretty thoroughly escaped and corporate is now dealing with containment around the edges.
The DMCA requirements are pretty strict. In fact, if someone hates your guts its pretty much impossible to upload anything - legal or not - to youtube since youtube pretty much takes any DMCA notice at face value.
Youtube does not encourage violations of copyrights. Take a look at youtube front page. In my case, the top line is all official (football) videos by broadcasting corporations.
As to “shifting the burden”; how exactly should someone who is not the owner of material X determine if the uploader is infringing? This is exactly why the safe-harbor exemptions exist.
Stealing cars is a criminal offense against government. The government decides whether it will punish you for committing the crime or not, and it has the burden of catching you and prosecuting you if you do steal a car.
Even though phone companies can disconnect your phone whenever they want, it’s still not up to them to monitor all phone conversations to make sure nothing illegal is taking place. But if someone reports a problem, then they will disconnect phone service if necessary.
A couple other points of note: YouTube HAS been responsive in taking down copyrighted material, whereas Napster was, IIRC, trying to argue that they couldn’t and shouldn’t have to.
The fact that Napster was used almost exclusively for copyrighted material whereas YouTube has a lot of “legit” content probably matters a bit as well.
I don’t know the details of the legal case against Napster but IIRC they were not storing any content, just facilitating exchange of content among their members. Not sure how they could reasonably remove any content that they didn’t have in the first place.
Could you expand on this?
Well, to be clear, it’s all copyrighted material, even the home-made cat videos. The difference is, the cat videos are put up by their creators, who have undoubted control of their copyrights. TV shows are often put up without permission of their copyright owners, who can then decide to request a takedown, or decide to retroactively grant permission to post the content by not requesting a takedown.
Correct. They would be unable to remove the content, only block it -which is near impossible right now.
This is mostly true.
The copyrights need to be claimed. The person who posts the cat videos may not necessarily have a copyright on it. The person in the cat video may not even have a copyright on it. Furthermore, many live performances (music, drama, and otherwise) on Youtube are unlicensed and in breach of the copyright of the original material.
Al Yankovic is a rash across YT, very much with his permission.
I’ve had a couple videos taken down, even though one was a Downfall Hitler parody, which I’ve since heard is protected as parody, and one was an MMA fight video I don’t think anyone is trying to market.
YT now being owned by Google means it’s very much worth it to sue them, but many companies have decided that having the movie trailer (duh) or the music video, or even funny clips online are a bonus, not a drawback. I would guess that every major record label has its videos online, which certainly is a change from when CBS records told MTV it was going to pay for every airing of the video, IIRC from the autobiography of Walter R. Yetnikoff.
Anyone can file a DMCA claim against any video but filing an improper DMCA has consequences. See what happened to Michael Savage for example. You can also follow the saga of thunderf00t and VenomFangX
IANAL… There are a few exemptions from copyright, parody being the most obvious.
The case against Napster, Limewire, etc. was simple - while they claim they are there to allow all sorts of open sharing, in fact they were basically baltant trading houses for copyright material. 99% of their material was popular songs or similar copyright material posted for trading without any permissions. According to lawsuits which took them down - they did not seem to even try to eliminate cpyright material, and in one case a company’s email suggested that the reason they were there was )obviously) to allow trading of copyright material without permission. So they were “inducing infringement”.
With youtube, you have the opposite. They don’t allow downloads (although there are ways to do so). They discourage copyright infringement and will actively enforce it (by cancelling accounts, as others mention). They will take down material when notified by the copyright owner with a DMCA takedown notice. A significant amount of their material is dancing cats, granny’s birthday or “He bit me! Oww!” which if violating copyrights (whats song does that cat dance to?) is only incidental and not an attempt to redistrbute the same product as the owner.
In fact with one episode mentioned in the court case, they were hit with a takedown notice for 10,000 items in 1 day and removed them all in 24 hours. Almost like the studio lawyers thought “ha ha, we’ll overwhelm them with this list and can use the excuse it took them too long to remove all the videos when we get to court”.
They even removed the “Downfall” parodies even though parody is an explicitly protected category in the copyright act (while “fair use” is not, it’s case law).
So really, here we have the sort of service the DMCA Safe Harbor was meant for. They are nowhere near just a means to bypass copyright. Much of their content is original or contains significant original elements. They actively discourage offenders. They take down any material that the owner complains about. They even took down the “Downfall” videos even though they were obviously parodies. They are NOT Napster.
Significantly, a lot of real profesionally produced material is permitted or even posted by the owners on YouTube. It serves a legitimate purpose, for free generally. When Viacom sued them, they did not seem to have any suggestions for improvement of the service, just “shut it down” and “pay us money”. Since it is not a blatant rip-off machine, none of those happened.
So if it were nothing but a bunch of unathorized film and TV show clips, like Napster was basically 99% unlicensed music files, they might have been closed down.
I’ve seen the VFX vs TF00t drama. Sure the penalties for abusing the DMCA are harsh, if the claimant is actually in the US and you can find them and take them to court.
On youtube, if someone makes a DMCA claim against a video you posted, you can either lose the video, counter-claim and hope it doesn’t end up in court or counter-claim and hope you win in court. But a counter-claim means you first have to provide your personal details to the other party - and that’s a big deal to some people, considering these DMCA claims can and are misused by some pretty strange wierdos and you do not get any reliable information on who’s claiming copyright. And after 3 irrefuted DMCA claims, default policy is to disable your account and take all your videos offline.
These problems mostly stem from the unstated assumption in the DMCA that claimants will be traditional media companies that have some sort of reputation to maintain. But any asshole with an email address can file a DMCA claim, legitimately or otherwise.
From everything I’ve seen, YouTube will pull a copyrighted work if the owner of the copyright demands it (and shows proof of owernship, of course), but does not actively search for illegal videos. Some organizations are more strident about this than others. Avex is absolutely fanatical, Disney does a halfhearted purge every so often, and most of the film studios don’t even bother.
The problem? Actually getting the job done. Each member has his or her own playlist, meaning that you need to stamp out every copy of the video on every playlist it’s on. Again, you gotta do all the legwork; there are simply too many videos and playlists for YouTube’s owners to police the site, assuming that they had any intention of doing so in the first place. Worse, even if you do find and remove the copies, this does nothing to prevent other members from uploading more copies in the future. For highly popular or coveted works, you’re basically talking Whac-a-Mole From Hell.
And then, of course, there’s the whole issue of not majorly ticking off your customer base. As the whole Napster debacle has amply demonstrated, much of America has a pretty dim view of copyright zealotry. It’s easy to decry pirating Avatar or Lord of the Rings, but anyone who starts pulling movie trailers or 15-year-old music videos is going to catch hell. (“You can see this on TV!”)
So yeah, they’re illegal. If they stay, it means the owner doesn’t have a problem with that. And neither should you.
A lot of companies that provide niche products are also putting up stuff they own the licence to as advertising/to keep fans happy. For example Funimation are in the habit of putting up subtitled episodes of animes they’re dubbing (although they’re region locked so we still can’t see them over here in old Blighty :().
Quoth Sinisterniik:
Works are automatically copyrighted as soon as they’re created. Claiming the copyright is only necessary if you wish to later try to collect damages, but even without the claim, you can still go to court to get someone to stop using it.
That said, there is some material on YouTube which genuinely isn’t copyrighted. The largest categories here would be sufficiently-old material, material produced by the US government, and works that the owner has explicitly released into the public domain (though this category isn’t as large as it once might have been, with the advent of permissive licenses like Creative Commons and General Public License).
This is nonsense, pure and simple. You yourself mentioned the Whack-a-mole from Hell scenario. Just because someone hasn’t tracked down all violations every time they happen (or can’t afford to with all the ways and places stolen material can be) doesn’t mean the owner doesn’t have a problem with their work being used illegally.
It’s about time you outed yourself. How’s it going, Weird Al?