Guide to YouTube Removals (Updated Nov 2012)

Step 2: Decide if your video is fair use

If your video was blocked for copyright reasons, either by an automated Content ID match or by a DMCA notice, you will have to decide if your video falls under the "fair use" exception to copyright, or if you had some other kind of authorization to use copyright content (such as getting permission from the copyright holder).

As described on the ChillingEffects website, "when a copyright holder sues a user of the work for infringement, the user may argue in defense that the use was not infringement but 'fair use.' Under the fair use doctrine, it is not an infringement to use the copyrighted works of another in some circumstances, such as for commentary, criticism, news reporting, or educational use." These specific purposes are highlighted in the law as particular types of uses which are strong examples of fair use, but they are by no means the only types of uses which are considered "fair use." Whether something qualifies as fair use typically depends on a case-by-case judgment of the facts.

Fair use is codified at Section 107 of the Copyright Act, which gives a non-exclusive set of four factors courts will consider in deciding whether a use is fair or not. These factors are:

1. the purpose and character of the use,
2. the nature of the copyrighted work,
3. the amount and substantiality of the portion used, and
4. the effect of the use on the potential market for or value of the copyrighted work.

ChillingEffects gives a good overview of the four factors, on which my summary below is based (italics indicate quotes from ChillingEffects).

FACTOR 1: THE PURPOSE AND CHARACTER OF THE USE

"This factor considers whether the use helps fulfill the intention of copyright law to stimulate creativity for the enrichment of the general public."

This and factor four are probably the most important parts of the fair use test. The key to this prong of the test is whether the use is (1) commercial or non-commercial, and (2) transformative rather than merely derivative. Non-commercial use of copyrighted material is much more likely to be considered fair use than commercial use, since particularly in video there is an established market for licensing material for commercial use. However, this does not necessarily mean that a commercial use cannot be fair use, but the burden of proof will be higher.

The most important part of this prong is whether the new use is transformative, which means that it must somehow alter the original work either quantitatively or qualitatively. "The more transformative the use, the more likely it is to be fair, whereas if defendant merely reproduces plaintiff's work without putting it to a transformative use, the less likely this use will be held to be fair." Even if a use does not necessarily alter the original in substance, if it does something to add a new meaning or message to it, it is still likely to be considered transformative.

FACTOR 2: THE NATURE OF THE COPYRIGHTED WORK

"The more creative, and less purely factual, the copyrighted work, the stronger its protection. In order to prevent the private ownership of work that rightfully belongs in the public domain, facts and ideas are separate from copyright--only their particular expression or fixation merits such protection. Second, if a copyrighted work is unpublished, it will be harder to establish that defendant's use of it was fair."

This is probably the least important part of the fair use test, and rarely makes the difference between a use being considered fair or not. Basically if your use of copyrighted material involves facts rather than creative works like movies or music, and if it involves published material rather than unpublished material, it is slightly more likely to be considered fair use. Note: Since the original creation of the Fair Use Doctrine, Congress has amended it to explicitly say, "The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors."

FACTOR 3: THE AMOUNT AND SUBSTANTIALITY OF THE PORTION DEFENDANT USED

"In general, the less of the copyrighted work that is used, the more likely the use will be considered fair. If, however, the defendant copied nearly all of, or the heart of, the copyrighted work, his or her use is less likely to be considered fair."

This prong is closely related to whether your use is transformative or not, and is also very important. The key here is that in order to be fair use, you must use no more of the original copyrighted work than necessary for your purpose. Incorporating small amounts of copyrighted material into a larger presentation is much more likely to be considered fair use than something that makes use of the entire original. This prong not only looks at how much of the original you used quantitatively, but also qualitatively, and a use is less likely to be fair use if you used "the heart" of the original work.

However, even if you do use the entire original work, this prong can be outweighed by the first prong if your use is sufficiently transformative. A good example of this would be anime music videos and film mashups, which in my opinion qualify as fair use for the video portion because quantitatively they only use brief clips of much larger works, and for the music portion because even though they use entire copyrighted songs, the addition of the video footage qualitatively imparts a new message and is sufficiently transformative to outweigh the fact that the entire song is used.

FACTOR 4: THE EFFECT OF DEFENDANT'S USE ON THE POTENTIAL MARKET OF THE COPYRIGHTED WORK

"This factor is generally held to be the most important factor. This factor considers the effect that the defendant's use has on the copyright owner's ability to exploit his or her original work. The court will consider whether the use is a direct market substitute for the original work. The court may also consider whether harm to a potential market exists.

This factor is key to the whole analysis, and considers whether the new use of copyrighted content directly competes with the original work. To decide this, ask yourself if your use of copyright content would be likely to serve as a substitute for the original. In the context of online video, could someone watch your video instead of buying the original work and still obtain the same value as from the original? If the answer to that question is yes, your video is likely not fair use. If it is no, that weighs significantly in favor of your video being considered fair use.

ChillingEffects also notes: The burden of proof here rests on the defendant for commercial uses, but on the copyright owner for noncommercial uses. ... It is important to note that courts recognize that some market harm may come from fair uses such as parodies or negative reviews, but that such market harm does not militate against a finding of fair use." This means that in the context of a lawsuit, the copyright holder would have the burden to prove that your use does harm their market. This market harm must be shown to come from direct competition between your work and the original. It is not enough to say that your use criticizes the original and might make someone not want to buy it. That is still fair use.

Deciding if your video is fair use

On YouTube, they key things to consider is if your video is transformative (i.e. you modified the source material in some way or did something to give it a different meaning or message), whether it is noncommercial (you aren't making money from it), and whether it competes with the market for the original work (i.e. someone could watch your video and get the same benefit as buying it). The Center for Social Media publishes an excellent Code of Best Practices in Fair Use for Online Video, which lists the following six uses as being probable fair use:

1. Commenting on or critiquing of copyrighted material
2. Using copyright material for illustration or example
3. Capturing copyrighted material incidentally or accidentally
4. Reproducing, reposting, or quoting in order to memorialize, preserve, or rescue an experience, an event, or a cultural phenomenon 
5. Copying, reposting, and recirculating a work or part of a work for purposes of launching a discussion
6. Quoting in order to recombine elements to make a new work that depends for its meaning on (often unlikely) relationships between the elements

In addition to these things, here is a list of common types of videos on YouTube which in my personal opinion would likely be considered fair use (or at least should be under common sense logic and current online practice). Ultimately, though, it would depend on what arguments a court would be willing to accept, and the case for some is stronger than others.

1. Anime music videos and film mashups
   • The video portion of such videos is very likely fair use as they only use small, highly edited portions of the original video footage. The audio portion is less likely to be fair use as these videos typically use an entire song, yet is still arguably fair use because of the non-commercial, transformative use of the song, low probability of harm to the market for the original song, and the impossibility of the average amateur video creator to license the song.
2. Parody videos (such as a political parody using satirical lyrics set to a copyrighted song)
   • Note that courts have drawn a distinction between parody (which comments on the original work) and satire (which comments on an unrelated subject), and have held that parody is more likely to be fair use. However many satires are still likely to be fair use based on their non-commercial, transformative nature, low possibility of harming the market for the original, and impossibility of licensing. Political parodies/satires are also likely to be protected against copyright claims by the higher first-amendment protection traditionally granted to political speech.
3. Filming yourself singing a copyrighted song (lip-sync videos may be less likely to be fair use)
   • This is questionably fair use since normally professional recording artists who perform cover recordings would be required to obtain a compulsory license and pay a fee set by statute to a performing rights organization in order to make a cover, and obtain a syncronization license from the record lable to use it in any kind of video production. However, at least in my opinion, it is doubtful this requirement was meant to apply to amateur performers like teenagers singing copyrighted songs in their bedrooms, and such people arguably could not be expected to navigate the complexities of the licensing process, which would be incomprehensible to the average person simply seeking to post a video of themselves singing a song on YouTube. Accordingly, I think a valid case could be made for fair use.
4. Movie reviews containing clips of copyrighted films
   • This counts as commentary and criticism of the original film and is very likely fair use.
5. Video game walkthroughs and tutorials with commentary
   
   • Even though video games are copyrighted, it is now a widely accepted practice on YouTube to post walkthroughs and tutorials ("let's plays"). Both the player's original commentary and the fact that their gameplay creates a unique subjective experience with the game make the use transformative. As long as you include your own original commentary about the game and don't just post straight raw footage from the game, it is likely fair use. It is possible that even un-commented gameplay is still fair use, though this is less certain.
6. Posting short news clips in order to comment on a current event
   • This also falls under the commentary category of fair use, though there likely would need to be some original comment on the clip rather than just posting the straight unedited clip.
7. Non-commercial podcasts and V-logs containing brief uses of copyrighted songs (especially for purposes of comment about the song)
   
   • This is likely fair use because of the minimal nature of the use and non-commercial aspect. If the podcast or V-log is for profit it is less likely to be fair use.
8. Home videos or documentary-type videos which capture copyrighted material in the background, such as a TV show playing on a TV or a song playing on the radio
   • When copyrighted material is incidentally captured in the background of a video (for example, a baby dancing to a Prince song as in the case Lenz v. Universal ) courts have held it to be fair use. This would also include things like home recordings of a school talent show or dance performance that happen to include performances of copyright songs.

Videos that are NOT likely to be fair use include:

1. Posting unedited clips from movies and TV shows
2. Posting professionally produced music videos in their entirety
3. Using copyrighted music in the soundtrack to a commercial or some type of video which you stand to gain financial benefit from, which would likely infringe on the artist's synchronization right.
4. Posting so-called "lyrics videos"
   
   • If your video is merely a copyrighted song with the text of the lyrics on the screen and maybe a few pictures of the artist or the album cover, this is likely not transformative enough to be considered fair use, since you are not really adding anything new or changing the message of the original. These are also much more likely to serve as a substitute for the original, defeating a claim of fair use.

These things are only examples and are by no means a complete list of types of videos that may or may not be fair use. The most important thing to keep in mind is whether your video is (1) non-commercial, (2) changes or alters the original work in some way, (3) uses no more of the work than necessary for your purpose and (4) does not harm the market or substitute for the original work. With the last of these, it is important to keep in mind that even if you used an entire song to make an anime music video or film mashup for example, your video could actually have a positive effect on the market for the original song by serving as free advertising and motivating people to go out and buy the song.

Finally note that making money from a video does not necessarily preclude fair use, but it does reduce the chances of a video being found to be fair use. If the copyrighted material is highly factual and you are using it for news reporting or commentary, it may still be fair use to use it commercially, but a mashup that you make money from might not be. YouTube also has stricter rules for videos it allows to be monetized and generally requires you to prove that you have a license for the material, so claiming fair use may not be enough to satisfy YouTube that you have the right to use it.

Last Updated on Thursday, 01 November 2012 13:42

Step 3: Dispute the Copyright Notification

Once that you have determined that your video is in fact fair use, in order to get it restored you will need to dispute the copyright notice. This will be done differently depending on how your video was blocked.

Disputing a Content ID Match - View video tutorial

If your video was blocked by YouTube's automatic Content ID system, you will need to dispute the content identification. To do this, follow the following steps.

1. Go to your Video Manager page.
2. Click on Copyright Notices in the left side bar.
3. Find the video you wish to dispute, and click on the copyright status of the video, where it says something like, "Video blocked in some countries," or "Matched third party content." Note: As far as I know, the new "I acknowledge" button doesn't really do anything, so it doesn't matter if you click it or not.
4. Scroll down to the bottom of the page, and click the link that says "I believe this copyright claim is not valid."
5. From the list of reasons, select "My use of the content meets the legal requirements for fair use or fair dealing under applicable copyright laws" (or whatever other option is more suited to your situation). If you believe the Content ID match is simply wrong and your video does not contain any copyrighted content or the particular claimant does not own the copyright to it, select the option that best expresses the reason for your dispute.
6. On the next page, check the box for "I am sure..." and click continue.
7. On the next page, type a brief explanation of why you think your video is fair use. When disputing content ID blocks on my anime music videos, I usually say something like, "This video is fair use under U.S. copyright law because it is noncommercial and transformative in nature, uses no more of the original than necessary, and has no negative effect on the market for the original work."
8. Type your full name (your actual name not your YouTube username) into the signature box.
9. Check the box where it says you have a good faith belief that the material was disabled as a result of mistake or misidentification and click continue.
   
10. On the dispute summary page, click the continue button, and then click ok when it asks you to confirm.
11. Your video should then be automatically restored and should be viewable more or less immediately, though you may need to refresh the page a few times for it to work.

Go back to your Video Manager page and click on the video's copyright status again, and it should say that you disputed the claim, and it should give a date one month from the day your filed your dispute, by which the copyright holder must review your dispute and decide whether to release their claim or reinstate it.

If the copyright claimant reinstates their claim, your video will be re-blocked or monetized, depending on the policy set by the Content ID system. Until October 2012, this used to be the end of the line and the user was left without further recourse. Recently however, YouTube has implemented a new appeals process, under which you can file a second dispute against a reinstated claim and force the copyright claimant to either release the claim or resort to the DMCA notice and counter-notice process described below.

Appealing a Reinstated Content ID Claim (new as of October 2012) - View video tutorial

The appeals process is basically just a second dispute, telling the copyright claimant you are really serious that your video is not infringing their copyright. While it is yet another hoop to jump through to fight a false copyright claim, it is an improvement over the old system, which gave users essentially no recourse at this point.

1. If a disputed Content ID claim against a video has been reinstated by the copyright claimant, below the message on the Content ID match page saying the claim has been reinstated, there should be a link that says "I want to appeal a reinstated claim." Click this link and go through the process, following the instructions on each page.
2. If you have not previously done so, you will be required to verify your YouTube account with a cell phone number capable of receiving text messages before you can proceed with the appeal. If you do not have a cell phone or your cell phone provider is not supported, you may need to buy a prepaid phone from a supported provider to use to verify your account. Once you enter your cell phone number, YouTube will send a verification code via text message to the phone, which you should then enter in the box provided to verify your account.
3. Once you have verified your account, you will be required to enter your contact information (note: this will be provided to the copyright claimant) and provide a more detailed explanation of why your believe your video is not infringing. If you originally disputed the Content ID claim based on fair use, YouTube is going to make you prove you actually understand fair use by typing out a brief explanation of how your video meets each of the four factors of the statutory fair use test (see the previous section of this tutorial for descriptions of what each factor means). If you originally disputed the claim by saying you have a license to use the content in your video, you will be asked to provide a link to a license contract or other documentation that you have permission to use the content, which you can cut and paste into the provided text box.
4. Check the acknowledgment at the bottom of the page, type your legal name as your signature, and click Appeal to submit your appeal.
5. It should now bring you back to the Content ID matches screen. Your video should be viewable again pending the copyright claimant's response to your appeal. As with the original Content ID dispute, they will now have one month to respond (though it will probably be sooner), this time by either releasing their claim or filing a formal DMCA takedown notice. If they do the latter, your video will be removed once more and there will be a copyright strike issued against your account, just as if the video had been blocked by a DMCA notice to begin with. While this may seem like a bad thing, the advantage of this (compared to the way things used to work) is that it also gives you recourse to the DMCA counter-notice process, which is described below.  If you still disagree with the copyright claim, you can file a DMCA counter-notice and have your video restored, in which case the copyright claimant will have to actually sue you in order to get the video removed permanently. See the next section of this tutorial for instructions on how to do that.

One final note about the new appeals process. YouTube has stated that this process will not necessarily be available for every video with a reinstated Content ID claim. You may not be able to appeal reinstated claims if you have outstanding DMCA copyright strikes on your account. Also, from what I have learned, the appeals process does not appear to be available for claims that were reinstated prior to fall of 2012. Assuming that you are otherwise in good copyright standing and the claim was reinstated after YouTube implemented the new policy, the appeals process should be available on all new reinstated claims.

For more information about the new appeals process, please see this YouTube help page, YouTube's blog post about the changes, and my blog post giving my initial reaction to the new system.

Filing a DMCA Counter-notice - View video tutorial

A DMCA takedown notice is a formal notice of copyright infringement by a copyright owner. You should know if your video was taken down as a result of a DMCA takedown notice because you would have gotten an email from YouTube saying that there is now a "strike" against your account, which will also show up in your Account Status page. If this is the case, in order to get your video restored, you will have to file a formal DMCA counter-notice with YouTube.

There are two ways to submit a counter-notice. (1) The easiest and best way is to use YouTube's webform for submitting counter-notices (accessed via your Video Manager page). (2) You can also email your counter-notice to This e-mail address is being protected from spambots. You need JavaScript enabled to view it . If you choose to write a counter-notice yourself and submit it by email, ChillingEffects has an excellent Counter-notice generator, which you can use to generate a counter-notice to email to YouTube.

1. Using YouTube's Counter-Notice Webform (Recommended Method)

The best method to submit counter-notices to YouTube is to use the handy webform YouTube has provided for this purpose.

1. Go to YouTube's counter-notice webform, which you can reach by going to your Video Manager page or your Copyright Notices page and clicking on the link next to the video that was taken down.
2. Fill in all the required information. This includes your YouTube screen name, your true legal name and true residential address (note: this information will be sent to the copyright claimant), the email address associated with your YouTube account, the URL of the removed video, and the required statements swearing that your counter-notice is not fraudulent and consenting to the jurisdiction of your local federal district court.
3. Make sure to provide a justification for why you believe your video is fair use in the "message to YouTube" box. If you do not provide YouTube with a justification stating why you are filing the counter-notice, YouTube will reject your counter-notice without even forwarding it to the copyright holder. This message must be specific to your video. A generic statement describing fair use in general will not suffice. You have to describe why YOUR VIDEO is fair use, or else YouTube will reject your counter-notice. A good basic fair use rationale could be something like, "This video is fair use under U.S. copyright law because it is (1) non-commercial, (2) transformative in nature, (3) uses no more of the original work than necessary for the video's purpose, and (4) does not compete with the original work and could have no negative affect on its market."
   
4. Though not required, it is a good idea to include this same statement in the "message to the party that made the copyright claim" box, so they know your reasons for filing a counter-notice as well.
5. Type your first and last name at the end as your electronic signature and click submit.

2. Alternate Method: Write your own counter-notice

Note: Since YouTube changed submitting DMCA counter-notices to be done through your video manager page, I'm not entirely sure if this method still works.

If you do not wish to use YouTube's webform or you are submitting a counter-notice to a website other than YouTube, you can email a counter-notice to the site's copyright compliance address (in the case of YouTube, This e-mail address is being protected from spambots. You need JavaScript enabled to view it ). The Digital Millennium Copyright Act (DMCA) requires that a counter-notice contain the following specific elements, which are described on YouTube's help page here:

Last Updated on Sunday, 02 December 2012 21:28