Sunday, April 28, 2013

Disappearing videos

Before I get started on this, this isn’t a rant: it’s just a description of what has happened to two of my videos, one of which I took down voluntarily, the other of which was taken down by force with a copyright infringement complaint. Other people might rant and rave about such things: I tend to think that there are more things worth ranting and raving about.

The first video to disappear was that time-lapse video some may have seen of a bus journey. The actual time-lapse footage was bracketed between short real-time segments showing general views of bus stations. In those sequences, several people were visible. One of those people approached me last week and asked me to take the video down, for reasons he didn’t specify. It was a polite request, and I complied; not because I necessarily had to (I didn’t deliberately focus on him; he just happened to be in shot) but because the video had probably already run its course and it serves no purpose to gain a reputation. In Germany, the right to one’s own image is actually enshrined in law, and although crowd scenes and people randomly walking into shot are usually legally fine, people take this right extremely seriously. There is an aversion in this country to anything that smacks of a “Big Brother” society. No problem: I can re-edit it to remove the offending shot and upload a new version, if I so wish.

The second video disappeared the very next day. It was a video of me talking about successfully monetizing videos, and if you go there now (at the time of writing this), you will see a message referring to a complaint by New Voyage Communications.

Now, this isn’t the usual run-of-the-mill Content ID match, which is an automated process over which even the claimant doesn’t have full control: this is an actual complaint of copyright infringement pursuant to the Digital Millennium Copyright Act.

Basically, New Voyage saw my video (unless they made a typo in the claim form and were actually trying to take down somebody else’s video), decided that it contained material that rightfully belongs to them and which I was using without their authorisation, and notified YouTube. This in turn means that YouTube is obliged to disable access to my video until the dispute is resolved. It’s important to note that YouTube is not at fault here: this is a legal dispute between me and New Voyage, and YouTube is merely fulfilling its legal obligations in order to avoid being held responsible for users’ infringing activities.

Quite why New Voyage thought my video contained their intellectual property I have no idea. The work they say I infringed is their documentary Tesla, Master of Lightning, which I hadn’t even heard about when I made my video. My best guess is that it’s my intro with the lightning bolts, with appropriate sound effect. (I haven’t seen the documentary, so I don’t know if that’s a possibility, but it sound plausible.)

One of the things this has taught me is that if you ever do receive a DMCA takedown notification, you cannot fail to notice. You get an e-mail for a start (in fact, I received two, one in English and one in German, for some insane reason); when you next visit YouTube you are confronted with a page full of a text, explaining what has happened.

At this point, I would urge anyone in this situation to actually read the text. All too often, the YouTube Help Forums are full of people saying they have received what they call a “copyright strike”, but it quickly becomes clear that they have no idea whether it’s a DMCA takedown or a Content ID match, and that they simply didn’t read the notification before dismissing it. Very often, they ask questions that are actually answered in the notifications they didn’t read, which is really frustrating. One user even copy-pasted the notification, complete with the “Click here to learn more” link, into the forum and asked what it meant and what he was supposed to do.

With this notice, there is an “I acknowledge” button, which you must click on before you can proceed. There is actually a problem here, because this “I acknowledge” button is not the same as the “I acknowledge” button on a Content ID match notice.

On a Content ID match, “I acknowledge” means that you acknowledge that the match is correct and you do not dispute it. They key thing here is that not clicking on that button does not prevent you from continuing and using YouTube. But if you do click on it, you can’t then dispute the match using the form provided by YouTube (although there is nothing stopping you from contacting the claimant directly, as they can release their claim any time they want).

If you are unable to do anything at all except click on “I acknowledge”, then this is a DMCA takedown, and “I acknowledge” simply means “I have read this text and understand that somebody is accusing me of copyright infringement.” There is no problem clicking on that.

You are then taken to Copyright School. If you are sent to Copyright School, even if you believe you did nothing wrong, I strongly urge you to watch the video: as infantile and annoying as it is, it does explain what the legal situation is, in very simple terms. In reality, it’s a lot more complicated, but the video does bust several quite dangerous myths and misconceptions. You then have to answer a series of true/false questions: take time to read the questions properly, and remember them. When you’ve done that, the correct answers are given with a short explanation of each: again, read this stuff, as the Help Forums are full of people who plainly haven’t read it and don’t understand why they’re being penalised.

When that’s done, you can access your account, where you will find you have a copyright strike, and you may also have lost some of your privileges. The video can still be found in your Video Manager, but it will be listed as having been removed. Many people make the mistake at this point of deleting the video, thinking this will remove the copyright strike: again, had they read the information they were given, they would know that this is not the case. A copyright strike may expire of its own accord after at least six months; if you want it removed sooner, you will have to have the dispute resolved in your favour. This is best done by submitting a counter notice, but this can only be done if you have legitimate grounds for doing this. In the entry in your Video Manager, you just click on “Submit Counter-Notification”: this takes you first to a page of text which — and I can’t stress this highly enough — you must read. It is very important that you do so: everyone concerned will assume you have actually done so, so if you do something wrong at this point, it’s your fault.

The counter notification form asks for private contact details, which you are required to give by law. This includes your home address and telephone number. If this worries you, you can have a lawyer submit a counter notification on your behalf, but those fields must be completed honestly and accurately. If you give very obviously false details, your counter notification may be rejected.

There is a field where you must tell YouTube why you are filing a counter notice, and a second field where you may tell the claimant why you are countering. You have a maximum of 200 characters in each field, so make it brief and to the point. Do not threaten or beg: just neutrally state your reasons. “No portion of the word allegedly infringed was used in my video” is a good reason (if it is true, obviously), and you don’t need to say any more than that.

Some people worry that if they abuse this form, they can be sued or prosecuted. Technically, this is true; but for that to happen, you’d have to be abusing the system on an industrial scale. In fact, I have never heard of this ever happening. That said, if you are not certain whether you can legitimate file a counter, you should really ask a legal expert before doing this.

What happens next is that once the claimant receives your counter, they have at least ten working days to respond. They can, if they wish, withdraw their complaint. If YouTube hears nothing at all, YouTube is at liberty (but is not legally required) to restore your video. This usually takes longer than the minimum ten working days.

If the claimant insists on their claim, they must go to court and obtain an order restraining you from your (allegedly) infringing activities. If that happens, you would need to defend yourself in court if you want a chance of regaining your video.

And this is where I could come unstuck, because of course I am in Germany. However, I can appoint somebody in the States to put my defence to the court.

But there is another, oft-overlooked, weapon in my arsenal: I can e-mail the claimant myself, which I plan to do in the next couple of days. Again, don’t threaten, beg or cajole: simply state your case as neutrally as you can. If possible, get somebody who knows a bit about law to at least read through your mail before you send it.

So that’s where I stand right now: counter notice submitted, polite e-mail in the works. I’ll let you know how this pans out.

Update 11 May: Ten working days after I received notification that my counter notice had been sent to the claimant, the complaint has been withdrawn, the copyright strike removed and all my privileges restored.

1 comment:

  1. I really admire the way you are taking this all so calmly! I can imagine it is not a very pleasant situation to be in, and I hope that it all gets resolved satisfactorily :-)

    I must say I'm curious as to how the person in the first video managed to find your channel. Is it someone you know personally, or did he just coincidentally stumble across the video?