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By Chris Cooke | Published on Wednesday 7 April 2021
Lawyers working for musician Maria Schneider have claimed that YouTube’s policies for dealing with repeat infringers on its platform are insufficient for the Google video site to enjoy safe harbour protection. That claim has been made in Schneider’s ongoing legal action over who has access to YouTube’s Content ID rights management tools.
Schneider teamed up with Pirate Monitor – an anti-piracy firm which, it turned out, was basically a front for film director Gábor Csupó – to sue YouTube last year. The lawsuit argued that, while YouTube’s Content ID system is pretty good at helping rights-owners find and deal with any videos on the site that contain their content without permission, too few creators and rights-owners have access to it.
Anyone who doesn’t qualify for access – which includes most independent creators – must manually monitor the video site for unlicensed uses of their content and then manually issue takedown requests. And whereas Content ID is a sophisticated takedown system, the lawsuit claimed, YouTube’s processes for dealing with manual takedowns are not fit for purpose.
Websites like YouTube are obliged to operate takedown systems of course, if they want to benefit from the copyright safe harbour and avoid liability for the infringing content swimming around their servers. By only offering Content ID access to the major players and operating a shoddy takedown system for everyone else, the argument went, YouTube should be deprived that all important safe harbour protection.
Another thing that safe harbour dwelling websites need in order to benefit from the safe harbour provisions in the US Digital Millennium Copyright Act is a decent repeat infringer policy, whereby they sanction users who repeatedly upload infringing content. It was a failure to meet that requirement that led to US internet service provider Cox Communications losing its safe harbour protection and being ordered to pay the major labels $1 billion in damages for infringement undertaken by its customers.
In a new letter to the court, Schneider’s lawyers argue that – as well as failing to provide a decent takedown system for those creators denied access to Content ID – YouTube’s systems for dealing with repeat infringers aren’t up to much either.
“YouTube publicly touts Content ID as handling the vast majority of its copyright enforcement issues; but infringing uploads identified by Content ID are never counted as ‘copyright strikes’ that YouTube tracks when identifying repeat infringers for termination”, it states. “Instead, the only way YouTube issues a copyright strike toward termination is on the basis of the vastly smaller number of takedown notices submitted after a copyright holder manually finds infringement. Infringement caught by Content ID is excluded entirely”.
What does that mean? Well, Schneider’s lawyers argue, “Defendants’ failure to assess penalties, including copyright strikes and termination for these repeat infringers: (i) fails to satisfy the reasonableness requirement to track and terminate repeat infringers as required for the safe harbours; (ii) encourages and incentivises users to continue posting infringing content; and (iii) creates the constructive (if not actual) knowledge of infringement that is an independent basis to deny access to the DMCA safe harbours”.
The letter to the court is actually urging the judge to force YouTube to hand over an assortment of documents in relation to its copyright takedown procedures.
“Plaintiff respectfully requests”, the letter begins, “that the court compel defendants to produce: (1) takedown notices that copyright holders have submitted requesting defendants remove infringing videos and documents related to such notices; (2) documents and data concerning defendants’ knowledge of uploaders who are repeat infringers as evidenced by multiple instances of infringing uploads identified by YouTube’s Content ID system even though YouTube did not penalise or ban them; and (3) document and data retention policies”.
Most attention to date in this legal battle has fallen on Pirate Monitor and Csupó. YouTube accused the director of employing sneaky tactics in an effort gain access to Content ID. Aiming to demonstrate that his anti-piracy agency was a big enough operation to get that access, he allegedly uploaded his own content to anonymous YouTube channels and then manually filed takedowns against those videos.
Such conduct, YouTube argued, proved why it was right to be careful about who it gives Content ID access to, given that once a rights-owner has that access they have the ability to block or monetise other people’s videos.
As the allegations built about Pirate Monitor’s conduct, it ultimately bailed on the litigation, leaving Schneider as the only named plaintiff. Lawyers working on the case are now obviously keen to put the claims against Pirate Monitor behind them and proceed with their core arguments.
Regarding Schneider, to date YouTube has argued that independent music-makers can in fact get access to Content ID via a distributor. And, what’s more, Schneider herself has done that. This means she, like other independent artists, can block and monetise videos containing their music via the automated system, albeit only when working with a business partner.
It now remains to be seen how the Google firm responds to the specific claims about its repeat infringer policies.