Have you ever tried to watch a video on YouTube, and been confronted instead with the “black screen of death” that states the video has been removed due to a copyright claim? Do you post videos on YouTube and wonder why advertising has been added to your video? Have some of your videos been blocked? Are you a copyright owner that is wondering what to do about a video on YouTube that infringes your copyright?

In our previous post on this topic (here), we talked about one of the latest social media battles in Australian politics, in which the Liberal Party requested that YouTube remove a Labor Party video, for the reason that the video allegedly infringed the Liberal Party’s copyright in a previous political advertisement.

There seems to be a bit of confusion in the media as to what actually happened. It has been implied that YouTube pulled the video of its own initiative, or that Labor voluntarily took down the video when it received the allegation. While we weren’t privy to any emails or notices of infringement, we thought it might be helpful to set out the YouTube takedown process for our readers.

YouTube videos may be taken down for two basic reasons. First, a video may be removed for violation of YouTube Terms of Use or Community Guidelines. This means that YouTube may remove a video that is inappropriate or offensive, shows gratuitous violence, or shows things such as drug or substance abuse.

Secondly, a video may be taken down for copyright reasons. YouTube has explained the basics of their copyright policy using a puppet video here. If you would like a non-puppet-based explanation, we will try to set out a basic summary of the two copyright processes.

YouTube may block videos if the video is matched to copyright owner content using the Content ID process:

  • Copyright owners that decide to take part in Content ID process can send YouTube reference files of their copyright content. The copyright owner tells YouTube what it wants to happen if infringing material is found – such as block the video, watch what happens to the video, or put advertising on the video.
  • The reference files are added to YouTube’s Database. Videos that are uploaded to YouTube are scanned against that database. If a match is identified, YouTube will take action depending on which option the copyright owner has chosen.
  • The uploader can dispute the Content ID claim. The content owner is then notified to review the video. If the content owner maintains their copyright claim on the video, then the uploader can appeal that decision. If the uploader appeals, the copyright owner must either release their claim on the video, or file a formal copyright infringement notification, under the process we will now describe.

Under the copyright notification and counter notification process:

  • If a copyright owner believes that their copyright has been infringed, they can submit a “copyright infringement notification” to YouTube. YouTube removes content automatically when it receives a complete and valid removal request.
  • The uploader of the video can send a “counter notification” to YouTube, requesting that the video be reinstated if they believe that the video did not infringe copyright. YouTube forwards the counter notice to the party who submitted the copyright complaint. It takes 10 days to complete the counter notice process.
  • A copyright owner may issue a “retraction” that means that they have changed their mind about the complaint. YouTube will then restore the video online.
  • After a counter notice, if YouTube doesn’t receive evidence from the copyright owner that they have filed a court action against the uploader of the video, YouTube may reinstate the video after 10 days.
  • A valid copyright infringement notification counts as a “strike”. However, strikes expire after 6 months, as long as the account holder completes the Copyright School and receives no additional strikes during those 6 months. If an uploader has had “three strikes” made against his or her account, YouTube will suspend that person’s YouTube account and remove all of their videos.

In having this notification and counter notification process, YouTube isn’t just taking the law into its own hands. Google is implementing s 512 of the US Digital Millennium Copyright Act (DMCA). Under the DMCA, an online service provider (OSP) is not liable for the copyright infringements of its users, provided that it meets certain conditions. These include that when the OSP receives a proper notice of claimed infringement by one of its users, the OSP must act expeditiously to remove or disable access to that material. The OSP must also give the user an opportunity to respond with a counter-notification. If the counter-notification is served, and the copyright owner does not file a court action within 10 to 14 days, then the OSP puts the copyright material back up online. Both the copyright notification and the counter-notification must include accurate information, under penalty of perjury.

The Content ID process is not a requirement of the DMCA, but is something that has been developed by YouTube. However, it links to the DMCA process, as the copyright owner is required to file a formal DMCA notification if the uploader appeals a rejected dispute.

As we stated in Part 1 of this blog post, YouTube’s take-down procedure is often criticised for its ability to be abused by content owners. On the other hand, it is a process that is intended to deal with mass online copyright infringement. It is not a straightforward area of the law, but we hope that this post has been able to provide a basic summary to our readers of YouTube copyright infringement and take-down processes.