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This guide describes the three primary ways in which videos are blocked or removed on YouTube and what to do to get your content restored. It is based in part on the Electronic Frontier Foundation's Guide to YouTube Removals, which, while now outdated, is also an excellent resource on this subject.
This guide outlines the process for fighting YouTube removals in three steps:
As always, please be aware that it is possible that a copyright owner could sue you at any point in this process, even if you take no action to contest the removal. This is somewhat more likely to happen if you draw attention to yourself by disputing the takedown or filing a counter-notice, and the costs of defending yourself in a copyright lawsuit can be considerable, even if you are ultimately found not liable. Therefore please think carefully about the possible consequences of any action you may take, and if you are in doubt about the legal status of your video, please consult a qualified attorney before taking any action.
That being said, according to the Electronic Frontier Foundation, no ordinary YouTube user has ever been sued by a major entertainment company because they contested a takedown notice. That's not to say it can't happen, especially with smaller more idiosyncratic copyright holders who may have a different agenda. Please keep this risk in mind.
First you need to figure out how and why your video was blocked, which is important to know in deciding what to do about it. YouTube generally removes videos for one of three reasons:
Last Updated on Thursday, 01 November 2012 13:34
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:
ChillingEffects gives a good overview of the four factors, on which my summary below is based (italics indicate quotes from ChillingEffects).
"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.
"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."
"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.
"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.
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:
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.
Videos that are NOT likely to be fair use include:
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
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.
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.
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.
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.
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.
The best method to submit counter-notices to YouTube is to use the handy webform YouTube has provided for this purpose.
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.
Note: YouTube also requires a statement of the rationale behind your counter-notice, or else they will reject the counter-notice. In the case of a fair use claim, a statement like that above saying why your video is fair use should be sufficient. Your rationale must be specific to your video, and not merely a generalized statement about fair use. YouTube also requires that counter-notices sent by email use the following subject line: "YouTube DMCA Counter-Notification."
If you do wish to write your own counter-notice, a sample counter-notification may be found at: http://www.chillingeffects.org/dmca/counter512.pdf. (That link is actually another counter-notice generator, which you can use to create a counter-notice when you can then email to YouTube.)
Once you have submitted a counter-notification, the copyright owner has 10-14 business days to respond and notify YouTube that they plan to file a lawsuit seeking an injunction prohibiting you from posting your video (in most cases, highly unlikely). If they fail to do this within the allotted time (YouTube's policy says 10 days even though the law gives them up to 14), YouTube will restore your video. In my personal experience, this whole process takes about three weeks.
Please be aware that after you file a counter-notice, the only way the copyright owner can keep your video off YouTube is to sue you. While no regular YouTube user has yet been sued over a YouTube video, there is a possibility that filing a counter-notice could provoke them into filing a lawsuit. Please keep this risk in mind when deciding whether or not to file a counter-notice.
The DMCA requires copyright owners to certify that they have a "good faith belief" that the material in question is infringing when filing a DMCA takedown notice. If a copyright owner files a takedown notice against a video that is clearly fair use or otherwise obviously non-infringing, they could be liable for fraudulent misrepresentation of the video's copyright status under the DMCA. There is at least one legal precedent (the case Lenz v. Universal in California) where a judge has ruled that a copyright owner could be held liable for issuing a fraudulent takedown notice against a 30-second home video of a toddler dancing to a Prince song being played on the radio. While the final outcome of the case has yet to be determined, this raises the possibility that if your video is falsely taken down even though it was obviously fair use, you could sue the copyright owner for damages. Please consult your attorney if you would like to pursue this option.
Last Updated on Sunday, 02 December 2012 21:28