At least in this case, YouTube seems to be following the DMCA's notice-takedown-counter-repost dance. Fourteen business days (512(g)'s outer limit) from my counter-notification, I received this email from YouTube:
Dear Wendy,
In accordance with the Digital Millennium Copyright Act, we've completed processing your counter-notification regarding your video http://www.youtube.com/watch?v=a4uC2H10uIo. This content has been restored and your account will not be penalized. For technical reasons, it may take a day for the video to be available again.
The NFL has apparently chosen not to sue to keep the video offline. Once again, therefore, viewers can see the NFL's copyright threats in all their glory.
I'm left wondering how many other fair users have gone through this process. On Chilling Effects we see many DMCA takedowns, some right and some wrong, but very few counter-notifications. Part of the problem is that the counter-notifier has to swear to much more than the original notifier. While NFL merely had to affirm that it was or was authorized to act on behalf of a rights-holder to take-down, I had to affirm in response that I had "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." A non-lawyer might be chilled from making that statement, under penalty of perjury, even with a strong good faith belief.
Thanks for all the comments!
Posted by Wendy at March 06, 2007 06:37 PM | TrackBackThis was really cool, Wendy. When I was involved with the Diebold memos, I didn't counter-notice because, naturally, I couldn't convince myself that my use was fair.
Posted by: joe on March 6, 2007 07:49 PMWell I sure as hell could:
http://www.equalccw.com/liebold.html
My site was the only continuous survivor of the Diebold DMCA flurry. And I wasn't just posting the memos, but full downloadable install sets of GEMS.
Posted by: Jim March on March 7, 2007 11:20 PMI don't know why the big fuzz about this Super Bowl prolbem.
Posted by: NewsFlashMusic on March 8, 2007 12:50 AMThanks Jim,
I appreciate your contributions to the e-voting and copyright debates.
I'm not entirely sure whether to congratulate or not... ;-) Let's assume, for a second, that the video hadn't been put back. What would your next step be?
Posted by: tlr on March 9, 2007 05:12 PMWhat if I have a good faith belief that the material was taken down as the result of deliberate and intentional disregard of my fair use rights by the copyright holder or his agent? Does that constitute a mistake under 512(g)? :)
Posted by: billb on March 9, 2007 07:31 PMI'm not a lawyer in any sense of the word, but what allows Wendy to act like she is entitled to youtube.com's server space and bandwidth? One would think their ownership of the domain/hosting allows them to dictate what they would like to display (or in this case, not display) on their site. Not trying to troll, just genuinely curious.
Posted by: jake on March 12, 2007 05:00 PMbillb: that's one of the tough questions of 512, but you could say that a claim denying fair use was "misidentification" of the material as infringing, or "mistake" by the service provider in responding to the incorrect takedown.
jake: I'm not claiming a right to YouTube's server space, merely hoping that their policies will be freely chosen, not the product of improper pressure from copyright claimants.
Posted by: Wendy on March 12, 2007 05:19 PMI'm not sure I get what you mean about the purported asymmetry as to how much a notifier v. counter-notifier has to swear to. As I read the statute, a notifier has to include a statement that: "the complaining party has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law." Which means that they have to swear out a good faith belief that the use they're asking to have taken down isn't fair use.
Posted by: chris newman on March 12, 2007 11:44 PMOdd - when I go to the linked page on March 13th to see the video, it still says "This video is no longer available due to a copyright claim by National Football League".
Posted by: Jesse on March 13, 2007 01:19 PMFollowing up on Jesse's comment, it does appear that is is unavailable again on YouTube. The Chronicle of Higher Education has an update describing how the content was put back and then taken down again. (http://chronicle.com/wiredcampus/article/1930/a-professor-attempts-a-goal-line-stand)
Posted by: Peter Murray on March 14, 2007 02:23 PMHi, excellent site, added to favorites!
Good luck.
