Sunday, November 15, 2015

YouTube takedowns can continue because of "contractual obligations" as well as usual DMCA Safe Harbor rules

YouTube publishers will need to be aware of a rather arcane legal aspect of the Terms of Service issues.  YouTube can take down allegedly infringing videos for copyright under DMCA Safe Harbor, of course, but it can refuse to restore a video where a normally legitimate counterclaim (including Fair Use) is made, if YouTube has a “contractual obligation” to the original content owner.

The relevant case is Lenz v. Universal, which Amul Kalia explains here on Electronic Frontier Foundation, here. Note that the video in question can still be viewed on “Liberal Viewer” here.

This problem has not been reported much outside of EFF, but Michigan Standard has a story on it here.

Again, so far, embedded infringing videos don’t seem to cause much of a problem in practice.  I don’t embed videos that I believe are likely to be infringing (and sometimes you can tell – whole movies free from obscure accounts, with recent posting and relatively few visits), but I have no way of knowing prospectively that a video can’t be taken down.  Occasionally I get a “video does not exist” or video that has gone private.

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