Video Stays, Video Goes – YouTube and Infringing Videos

03 January 2010

“How come some YouTube videos that use copyrighted songs get to stay online and some get taken down?”  It is a question this Ipper has heard often lately.  Good question, and one that was recently answered by YouTube’s Chief Counsel, Zahavah Levine, at last month’s Supernova in San Francisco.

Standard Procedure for Infringing Works

Those familiar with the DMCA (Digital Millennium Copyright Act) know that there are provisions in the copyright law that allow safe harbors to third-party websites on which users may place infringing content.  (17 USC § 512.)  these safe harbors protect the website from liability for users’ infringement.  To qualify a safe harbor, websites must have a notice and take down procedure.  Simplified, notice and take down works like this:  Rightsholders provide notice to the website that the site contains material infringing their copyright and the website takes down the infringing material.  The user who posted the material can send a counter notice to the website explaining that the material does not infringe and the website should not have removed the material.  The website then replaces the material.

YouTube’s Extra Twist

In addition to having a standard notice and take down procedure as required for the Copyright Act’s safe harbors, YouTube also has another notice-type system that gives rightsholders more control over their copyrighted works and YouTube users the ability to post more works, or UGC (user generated content).

Rightsholders who are concerned that their works might be infringed in videos uploaded to YouTube may submit their works to YouTube for inclusion in a special library.  YouTube uses technology to scan each video uploaded to the site and check the video for matches between content in the video and content in YouTube’s special library.

Once a match is made, YouTube follows the directions given to it by the rightsholder.  The rightsholders have a number of options regarding what YouTube should do when it discovers uploaded content that matches a copyrighted work in the special library.  Rightsholders can opt for actions such as having the videos removed, receiving royalty payments or advertising revenue from the advertisements run next to the uploaded video, and having links to places where a viewer can purchase authorized copies of the copyrighted material used in the video.  [This is why the “Forever” wedding dance video was able to become viral and make Chris Brown lots of money, instead of simply being removed for infringement. More on the wedding dance video here.]

After than, a notice is sent to the video uploader notifying the uploader of the match that was made.  The uploader is offered an opportunity to dispute the action taken.  For example, the uploader might claim fair use or having a license to use the copyrighted material.  YouTube informs the rightsholder about the dispute and gives the rightsholder the opportunity to review the video.  From there, the rightsholder can choose to follow the regular DMCA notice and takedown procedure.

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