Fight the [Automated] Powers That Be

David Abrams, Chilling Effects Clearinghouse, April 27, 2010

Abstract: Google has clarified the procedure for disputing automated YouTube takedowns. By checking a box in the dispute form to indicate you believe your use of the copyrighted material is protected by fair use or is allowed for some other reason, YouTube will reinstate the video and the copyright holder will have to follow the formal DMCA takedown procedure if he or she believes you are mistaken.

As I explained in an earlier Weather Report, Goggle's YouTube video posting website employs automated scanning software that attempts to identify copyrighted material and remove it without human intervention.  The problem with this system is that it leaves the poster with little recourse against the copyright holder if he or she believes the use of the material falls under fair use or some other exception to copyright infringement (such as the take downs of artists posting videos of their own works).  Google has now acknowledged this problem and clarified how a poster can insist that the copyright owner use the more formal DMCA takedown procedures if he or she believes there is actual infringement.  Essentially this allows a poster to force the copyright holder to make a decision whether the material is used in an illegal manner rather than merely allowing an automated algorithm to take down any video that it concludes includes copyrighted material, no matter  how that material is used.

As Google explains it, "Content ID makes it easy for users to dispute inappropriate claims.

• When you receive a notice in your account via Content ID, we tell you who claimed the content, and direct you to a form that lets you dispute the claim if you so choose.
• If you believe your video is fair use, check the box that reads "This video uses copyrighted material in a manner that does not require approval of the copyright holder." If you're not sure if your video qualifies, you can learn more about fair use here.
• Once you've filed your dispute, your video immediately goes back up on YouTube.
• From this point, the claimant then makes a decision about whether to file a formal DMCA notification, and remove the content from the site according to the process set forth in the DMCA."

If you believe the automated algorithm incorrectly concluded your video included copyrighted material or your video used copyrighted material appropriately within the bounds of fair use but was taken down nevertheless, you should consider following this procedure to force the copyright owner to evaluate your use.  Of course, the owner may just issue a knee-jerk DMCA takedown notice without any further consideration, but at least one court case has suggested that a failure by a copyright owner to at least think about fair use before sending a takedown notice could be a violation of the DMCA's requirement 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."