February 15, 2007
DMCA Saga Act II: Counter-Notification

Under the Digital Millennium Copyright Act's safe harbor provisions, Internet service providers are immunized from monetary liability for users' copyright infringements if the ISPs follow notice-and-takedown procedures set out in Section 512. 512 also includes a counter-notification-and-putback procedure, 512(g), by which ISPs are encouraged* to replace material if they get a counter-notification asserting "good faith belief that the material was removed or disabled as a result of mistake or misidentification of the material to be removed or disabled."

So, having received a mistaken DMCA notification, I sent my counter-notification to YouTube, generated with the Chilling Effects counter-notice generator. 512(g) instructs the ISP to replace the material in 10-14 business days. Check back in March to see if YouTube reposts those Super Bowl copyright warnings.

*The encouragement? They're immunized from suit by their users if they put back. Alert readers of TOSs will notice, however, that the ISPs terms of service usually provide this immunity already, even if the ISP dumps a user for no reason at all. 512(g) doesn't have much bite.

Posted by Wendy at February 15, 2007 05:57 PM | TrackBack

This story is on TechDirt!


Posted by: Anonomous on February 15, 2007 09:16 PM

I noticed that YouTube asked for more details than the counter-notice provides. Just for sake of clarification - are you providing the additional information to YouTube or just relying upon the normal counter-notice?

Do you have any thoughts about the additional information YouTube asked for?

Posted by: trsm.mckay on February 16, 2007 02:51 PM

trsm.mckay: I didn't see anything in YouTube's request that isn't in 512(g), so I believe my response contained all the information requested by either (and no more). What were you thinking of?

Posted by: Wendy on February 16, 2007 03:55 PM

This is True is editorializing in your favor, and reports on a similarly overreaching copyright notice that the Associated Press has, and how AP did a C&D against them (and lost): http://www.thisistrue.com/blog-the_nfls_copyright_round_two.html

Kudos to you in your fight, which protects the rights of us all.

Posted by: Anonymous on February 16, 2007 07:30 PM

I'm amazed that companies like youtube don't work harder to have a fair, informal process of dispute adjudication. A start would be responding to relevant user emails. See

Actually providing humans to interact with users increases the cost of rapidly scaling a (web service) business. That's probably part of the problem. Perhaps potentially huge liability in a formal legal proceeding may also chill willingness to respond informally.

Posted by: Douglas Galbi on February 18, 2007 01:16 PM

Professor Seltzer,

You have my full support. If there is anything I can personally do to help in this counter notice/campaign, please let me know.

This message does not constitute a message from Cornell University, but personally from me.


Tracy Mitrano

Posted by: Tracy Mitrano on February 18, 2007 04:44 PM

I could be mistaken, but I believe the YouTube terms indicate that anything you upload becomes property of YouTube.

Following that logic, they are taking down their own content and not your content. You no longer own it. They have every right to take down their own content for any reason.

Those may be the rules this game is (or could be) played by.


Posted by: Peter Daly on February 20, 2007 04:00 PM

I see only two conceivable motives for YouTube to restore access to your file:

1) To protect itself from any liability to you based on its removal of the clip. As I can't think of any theory under which it has any such liability to you in the first place, section 512(g)(1)-(2) really provides no motive for restoration at all.

2) To protect its reputation as an open forum in which people can speak freely without unjustified interference from others. But judging from YouTube's general behavior in this regard (summary removal of material that is flagged as "offensive", etc.), I don't think they care much about that. The only motive I can see for them to care would be if that became a serious locus of competition between them and other similar sites, i.e., if large numbers of users decided on principle not to visit YouTube because of its policies in this regard. Which seems unlikely, though not impossible.

So my prediction is that they won't restore your clip. I look forward to seeing whether I'm right.

Posted by: chris newman on February 21, 2007 10:37 PM

Actually, if you look at the YouTube terms of use, you'll find they give users more DMCA rights than you might expect. Some research I did shows that for YouTube to be protected by the DMCA, YouTube must detail their users DMCA rights. See 17 USC 512(i)(1)(A)

My interest in the matter, by the way, is detailed somewhat in the articles at:


And at: http://www.sacbee.com/107/story/119967.html

Posted by: Allen Asch on February 23, 2007 06:05 PM
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