youtube-copyrightWhen people talk about DMCA abuse it’s usually folks representing companies like Google or the Electronic Frontier Foundation. Time and time again this red herring is used as a cudgel to attack those who believe in copyright law.  However, as I’ve pointed out numerous times, if one really wants to examine  the law and its potential for abuse it’s worthwhile to explain why Google and the EFF have it backwards.

Bottom line, if an erroneous DMCA is sent all the recipient really needs to do to stop enforcement is to file a “counter-claim.”  Unless sender of the DMCA wants to spend money to go to court to enforce their rights, that’s it, end of the story.  This is why the characterization of who is “damaged” should be reversed.

dmca-tomboy-.007Let me show you an example that I recently uncovered that demonstrates my point.  French indie filmmaker Celine Sciamma’s  2011 film “Tomboy” was uploaded  to YouTube on July 13th of this year (all 122 minutes)  At the time the film’s U.S. distributor, a small independent company,  matched the infringing content via Content ID on YouTube and issued a DMCA “takedown” in order to remove the infringing copy from the site.  The uploader, who goes by the YouTube user name “Dirceu Alves” filed a “counter-claim” with YouTube saying he had the right to upload the film.

At this point, regardless of the fact the YouTube user filed an false counter-notice, per U.S. law, the only option remaining for the distributor to enforce the takedown is spend money and seek a court order against the uploader:

If the subscriber serves a counter notification complying with statutory requirements, including a statement under penalty of perjury that the material was removed or disabled through mistake or misidentification, then unless the copyright owner files an action seeking a court order against the subscriber [emphasis added],the service provider must put the material back up within 10-14 business days after receiving the counter notification.

Perhaps, because he appears to live in Brazil, Dirceu Alves isn’t too worried about being charged with perjury.  Note YouTube’s instructions for filing a counter-claim to a DMCA notice:

A counter notification is a legal request for YouTube to reinstate a video that has been removed for alleged copyright infringement. The process may only be pursued in instances where the upload was removed or disabled as a result of a mistake or misidentification of the material to be removed or disabled, such as fair use. It should not be pursued under any other circumstances. [emphasis added]

Despite the fact this YouTube user does not own rights to this film in the United States (or anywhere), because its indie distributor doesn’t have deep pockets to fight the matter in court, the pirated movie remains online.  Now, if the distributor tries to remove the pirated film, this is the notification from YouTube that appears:


According to a graphic overlaid at the beginning of the pirated film, the pirated copy originates from a Brazilian-based pirate website (offering illegal downloads).  There’s also a companion Twitter account and Facebook Page as well.  It’s not clear whether the YouTube account holder is one in the same, but the upload’s links to online piracy are obvious.


So, for all the hoopla surrounding DMCA abuse, maybe it’s time to look at who’s really damaged when the law is used under false circumstances–content creators who have limited resources to protect their work and their rights.  As I wrote in an earlier post on this blog:

…if one takes the time to read the DMCA, it’s easy to see that the law actually favors the reported party, not the other way around.  If online content has been removed in error, the owner can file a counter-claim.  That immediately puts the onus on the party that filed the original DMCA request to go to court and prove the legitimacy of their claim.  If that next step isn’t taken, the takedown becomes moot.   Filing a court case is a costly endeavor so it’s unlikely that those whose file false DMCA claims, whether in error or purposely,  would bother to spend money to enforce a bogus DMCA.  Conversely, those content creators who don’t have deep pockets have little recourse when it comes to enforcing a valid DMCA takedown  if the other party, representing an infringing (pirate) website,  chooses to file a counter-claim.