Are there lawyers who will take on cases for consignment only?
It's a calculation that little people will not be able to take on the big people.
This is why corporations have zero fear of incorrectly killing individual content on youtube, little chance of penalty and they can smother any attempt to fight them.
Nope, all you are supposed to have to do to get the content restored is submit a counter-notice. And it should be back in two weeks, not years.
But you can be sued by the rightsholder for posting infringing material.
The DMCA is really about protecting the ISP/host. The ISP can't be sued for hosting your infringing material -- so long as they take it down when receiving a takedown notice; and even when they put it back up after receiving the counter-notice from the original poster.
But YOU (the poster) can still be sued.
I am not sure how often ISPs/hosts have clearly identified counter-notice procedures, but that's the way the law is written.
Not years. It's back up ~10 business days after you file a counternotice or the service provider loses their safe harbor. The DMCA is designed so that disputed content is not taken down permanently without an actual injunction signed by a judge.
YouTube is not responding to DMCA notices, it's given media companies direct access to take down content through their own system, and it can do this because it has no obligation to host your material for free in the first place, infringing or not.
That's not how it works. If StackExchange wants safe harbor from being sued itself, it must put the content back online if it receives a counternotice. YouTube doesn't have this problem because it's not receiving DMCA notices in the first place. One can't send a counternotice when there was never a notice to begin with. Since Google gives all the major media companies direct access to their system, they don't have to use the DMCA process to remove content from the site.
Sure it is. Upon receiving the counternotice, StackExchange can just say "OK, we're no longer have the question offline because of the DMCA notice; as a separate matter we have decided that we decline to host this question". To believe otherwise would be to believe that a DMCA notice and counternotice somehow privileges the subject content above all other content on the site.
But it does privilege that content above all other if the service provider wants the liability protection. You either treat that content specially or you are open to being sued for having hosted it before you took it down. To meet the requirements of the act, they must actually "replace the removed material and cease disabling access to it" (H.R.2281 Sec. 501(g)(2)(C)). Doing what you said would fail to meet that, as would some kind of "it was available for a split second but you didn't see it" prank. Real judges don't take kindly to trying to weasel around the intent of a law.
Just like in many states you can fire an employee for no reason but you can't fire them for a discriminatory reason, you are in violation if you take down the content from the notice despite the counter.
OK, that makes sense (in a twisted way). But then, aren't Google and the media businesses balancing on the edge of something very nasty here? They have effectively made their own legal system alongside the real one. I'm not entirely sure how the US legal system works, but it sounds like something an EU court could strike down on.
Comments
So years later you can get content restored?
Are there lawyers who will take on cases for consignment only?
It's a calculation that little people will not be able to take on the big people.
This is why corporations have zero fear of incorrectly killing individual content on youtube, little chance of penalty and they can smother any attempt to fight them.
> So years later you can get content restored?
Nope, all you are supposed to have to do to get the content restored is submit a counter-notice. And it should be back in two weeks, not years.
But you can be sued by the rightsholder for posting infringing material.
The DMCA is really about protecting the ISP/host. The ISP can't be sued for hosting your infringing material -- so long as they take it down when receiving a takedown notice; and even when they put it back up after receiving the counter-notice from the original poster.
But YOU (the poster) can still be sued.
I am not sure how often ISPs/hosts have clearly identified counter-notice procedures, but that's the way the law is written.
See for some further explanation: http://www.dmlp.org/legal-guide/responding-dmca-takedown-not...
Not years. It's back up ~10 business days after you file a counternotice or the service provider loses their safe harbor. The DMCA is designed so that disputed content is not taken down permanently without an actual injunction signed by a judge.
YouTube is not responding to DMCA notices, it's given media companies direct access to take down content through their own system, and it can do this because it has no obligation to host your material for free in the first place, infringing or not.
But surely neither is Stackexchange obliged to host any discussions online. So this content may never reappear - counterfiling or not.
That's not how it works. If StackExchange wants safe harbor from being sued itself, it must put the content back online if it receives a counternotice. YouTube doesn't have this problem because it's not receiving DMCA notices in the first place. One can't send a counternotice when there was never a notice to begin with. Since Google gives all the major media companies direct access to their system, they don't have to use the DMCA process to remove content from the site.
Sure it is. Upon receiving the counternotice, StackExchange can just say "OK, we're no longer have the question offline because of the DMCA notice; as a separate matter we have decided that we decline to host this question". To believe otherwise would be to believe that a DMCA notice and counternotice somehow privileges the subject content above all other content on the site.
But it does privilege that content above all other if the service provider wants the liability protection. You either treat that content specially or you are open to being sued for having hosted it before you took it down. To meet the requirements of the act, they must actually "replace the removed material and cease disabling access to it" (H.R.2281 Sec. 501(g)(2)(C)). Doing what you said would fail to meet that, as would some kind of "it was available for a split second but you didn't see it" prank. Real judges don't take kindly to trying to weasel around the intent of a law.
Just like in many states you can fire an employee for no reason but you can't fire them for a discriminatory reason, you are in violation if you take down the content from the notice despite the counter.
OK, that makes sense (in a twisted way). But then, aren't Google and the media businesses balancing on the edge of something very nasty here? They have effectively made their own legal system alongside the real one. I'm not entirely sure how the US legal system works, but it sounds like something an EU court could strike down on.