NYU Sues YouTube For Reposting Video After Video Poster Sent DMCA Counternotice
from the not-how-the-law-works dept
You would think that a large university like New York University -- better known as NYU -- would have decently competent lawyers. Especially since NYU has its very own law school that is frequently one of the top ranked law schools in the country. So it's a bit surprising to see NYU file a copyright infringement lawsuit against YouTube that seems to, pretty clearly, go against the DMCA's rules (found via Eric Goldman).The lawsuit is mainly focused on someone named Jesse Flores, who apparently runs a YouTube account called Atheists Exposed. I think it would be fair to say that Flores does not like atheists, and the summary of that YouTube account my be subtitled "videos of atheists behaving badly." I'm not sure which video in particular upset NYU, but the university submitted a DMCA takedown notice to YouTube, claiming that some of his footage infringed upon its copyright. As I type this, the video in question remains down.
Flores, appears to have filed a counternotice on May 3rd -- in which he doesn't even claim fair use. Rather, he says that he received permission to post the video from the Veritas Forum at NYU, saying that it had the rights to the video in question.
NYU then reached out to Flores directly asking him to withdraw the counternotice. Flores, perhaps not too surprisingly, has refused to withdraw it. YouTube has made it clear that it will follow the rules in the DMCA -- specifically Section 512(g)(2)(B) and (C) -- which say that upon receipt of a valid counternotice (and the lack of a lawsuit filed against the uploader) the site is to replace the removed material in 10 to 14 business days after the counternotice. There are a few conditions around this, but none are that important in this case. There also is some question as to whether or not the site has to replace the content. The statute can be read that way, though some have argued that that's a weird result, since sites should have free control to refuse to repost any video if they so choose.
Either way, NYU noticed, YouTube took it down, Flores counternoticed, and YouTube has said it's putting the video back up. Under the very, very, very, very clear language of the DMCA, this means that YouTube is protected from liability if there is any infringement in the video. That's the whole basis of the safe harbors. They say "if you take down upon notice and follow these other rules, such as reposting it after 10 business days upon counternotice," then you're protected from a copyright lawsuit.
So, what did NYU do? It sued YouTube (and Flores). The suit against Flores, obviously, will turn on whether (1) he actually received a license, as he implies, or (2) if not, if the use was actually fair (and again, we don't know enough to say at this point). But including claims against YouTube? That's not just a non-starter, it's ridiculous, and makes you wonder if NYU's lawyers spoke to any of the copyright experts at NYU's own law school to explain that this is not how the DMCA notice-and-takedown process works. The most generous interpretation of this is that NYU's lawyers completely misinterpreted the DMCA (and YouTube's notification to NYU about the counternotice) and read the requirement of a lawsuit to include YouTube, so that the site knew not to put the video back up. What YouTube and the law actually require is merely evidence that a lawsuit was filed against the uploader. Including YouTube in the suit is an interesting way to provide "evidence," but it also goes completely against the DMCA's safe harbors.
I'm guessing that NYU will file an amended complaint fairly soon that drops YouTube from the complaint. But, still...
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Filed Under: 512, athiests exposed, copyright, counternotice, dmca, jesse flores, safe harbors
Companies: nyu, youtube
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Perjury?
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Re: Perjury?
If they lose they will just pay for it and file another false claim the next day. A lot of people do not know but most of these companies actually set aside a certain amount of projected capital just to spend them on cases they already know they are going to lose because it is more profitable to legally hold people down through the court system.
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Re: Re: Perjury?
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Depends on who you are.
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I mean, they try to prove that youtube is 1% guilty, but if Flores can't fork out the fine involved, they will request it from youtube and leave them to figure out how to get the rest of the money.
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https://en.wikipedia.org/wiki/Joint_and_several_liability
Not sure how it applies in the US, but there are cases where someone had to pay the full damages even if he was proven 1 or 2% liable.
And of course, you never know what a judge will rule...
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YouTube has a strong, multi-billion-dollar motive for insuring that the DMCA safe harbor provision is actually a safe harbor.
A smaller site would likely cave rather than face a lawsuit -- a lawsuit that is only affordable to larger corporations.
One aspect that is easy to overlook is that YouTube interest isn't fully aligned with their users. No specific video on YouTube is worth all that much to YouTube. They have so much content that removing even the 10 most popular videos just redistributes the views over the other available videos. So YouTube has little motivation to fight for an individual video.
What could really hurt them is being named on ten thousand lawsuits across the U.S. That's a billion dollar nightmare. If even one suit works, everybody with a law degree would be rushing to the courthouse for a piece of the gold rush.
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One of the conditions is that the copyright owner not have brought suit. But here, it did.
512(g)(2)(c):The counternotice was filed on May 3, and the lawsuit was filed on May 12. That's less than 10 business days.
I know you're way smarter than NYU's lawyers--heck, smarter than all the lawyers you routinely mock. So what am I missing here, counselor?
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That YouTube was included in lawsuit for pointing out that they would put the video up if they were not notified of a lawsuit. All NYU needed to do was notify YouTube the they were taking the case to court, while including YouTube in the suit is premature ejaculation.
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All we have to go on is the complaint, and we don't know all that was said when NYU talked with YouTube. That said, whether YouTube qualifies for the safe harbor is an affirmative defense that YouTube will have the burden of proving. The complaint alleges that YouTube is liable for the original posting and that it told NYU it was obligated to repost the content after 14 days. That YouTube might be able to prove a DMCA defense doesn't mean there's anything wrong with naming YouTube as a defendant. It's still prima facie infringement on YouTube's part.
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Is it though? It's a claim of infringement on the part of one entity vs a claim that it's not infringement on the part of the other party, on the basis of copyright owners being yet another party and that permission has been given for use.
Youtube is a third party to all this and has prima facie evidence of nothing.
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Of course, if the initial assumption is wrong and NYU's lawyers are morons, then including YouTube is a little more understandable.
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Right off hand, I'd say a fully functional brain.
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I welcome you to join the discussion in a productive way.
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The suing of YouTube. Suing Flores is fine (though he claims to have a license, but we'll see if that turns out to be true). The issue is the suing of YouTube (which I thought I pointed out in the post).
NYU can sue Flores and tell YouTube, at which point YouTube WILL NOT replace the video. But adding YouTube to the lawsuit is just bad lawyering.
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Think of all of the things they can do with a billion dollar settlement...
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You did, very clearly. (hence the functional brain comment)
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NYU can sue Flores and tell YouTube, at which point YouTube WILL NOT replace the video. But adding YouTube to the lawsuit is just bad lawyering.
Don't move the goalposts. Your original claim was not "bad lawyering." It was that the suit against YouTube is "a non-starter" that "goes completely against the DMCA's safe harbors."
Since we don't have the facts, we can't really analyze NYU's case. But we can read the complaint, which states: "YouTube asserts it is required by § 512 (g)(2)(B) to 'replace' or republish the Work within 14 days of the date of the counter-notice."
Taking that at face value, if YouTube really told NYU it was going to repost the video within 14 days, then getting an injunction makes sense on NYU's part. How is that bad lawyering? Or are you just assuming facts?
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Since we don't have the facts, we can't really analyze NYU's case. But we can read the complaint, which states: "YouTube asserts it is required by § 512 (g)(2)(B) to 'replace' or republish the Work within 14 days of the date of the counter-notice."
We can also read IN THE SUIT YouTubes notice to NYU which states quite clearly:
So, no, it's clear that YouTube never said that it would post the video back up even if NYU sued Flores. It said it would repost it if they did not sue Flores, as is exactly what's required for the safe harbors.
And NYU still sued them. That's bad lawyering.
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We're providing you with the counter notification and await evidence (in not more than 10 business days) that you've filed an action seeking a court order against the counter notifier to restrain the allegedly infringing activity.
So, no, it's clear that YouTube never said that it would post the video back up even if NYU sued Flores. It said it would repost it if they did not sue Flores, as is exactly what's required for the safe harbors.
And NYU still sued them. That's bad lawyering.
You're simply assuming facts. Yes, the counternotice YouTube forwarded to NYU mentions 10 business days. But the complaint explicitly states that YouTube told NYU it was obligated to repost the video within 14 days. Since 14 days is not mentioned in the counternotice, it would appear that there was other communication between YouTube and NYU. You don't know what was said in this other communication. You're simply making up the facts. That's not what a good lawyer does.
The only reason I point this out is because you insulted the lawyer from NYU and claimed that he doesn't understand the DMCA. That would be fine if you actually had the facts to back it up. You don't. It appears to be another case where you're claiming you're so much smarter than someone else without the goods to back it up. It's not a good trait on your part, Mike.
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Have you read 512? Either you haven't or you're a troll.
The 14 days is IN THE LAW. YouTube is simply saying what the law says, which is that upon receiving a counternotice, if it does not receive evidence of a lawsuit against the uploader, it will abide by 512(g)(2)(C) and put back the video within 10 to 14 business days.
It's telling NYU exactly what it's doing *in order to retain the safe harbors.*
Suing YouTube is bad lawyering. It either ignores or misunderstands the safe harbors. NYU is going to drop YouTube from the suit fairly soon once some adult realizes what happened, or it's going to get laughed out of court for including YouTube quick.
The only reason I point this out is because you insulted the lawyer from NYU and claimed that he doesn't understand the DMCA. That would be fine if you actually had the facts to back it up. You don't. It appears to be another case where you're claiming you're so much smarter than someone else without the goods to back it up. It's not a good trait on your part, Mike.
I stand by the story. NYU fucked up. You rushed in to defend them because that's what you do, and now you fucked up too. Man up and admit it.
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"Yeah, how dare you do to me what I do to you all the time!"
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Other than needing to be right to have that smug attitude. Nice, to see you fail again, though. Genius.
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if NYU wants it down, just file a contentID claim, not a DMCA notice.
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Sounds more like another nutjob exposing himself. LOL.
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Why would the fact that some assholes are atheists mean that all atheists are or that atheism is the root cause of them being assholes?
It's especially funny when you think who is complaining here: a christian who believes in a god that endorses slavery, rape, genocide...
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As for atheism (a bona fide religious belief system), there are a variety of viewpoints which come under the general heading of this. Please specify which specific one you are into. Some versions are benign, some are toxic.
As for Stalin, Pol Pot, etc. There are many who profess belief in some supernatural entity but in actuality have no belief in such and act in like manner. If you want atheists and atheism to have the benefit of the doubt, do likewise for the various other religions.
One aspect of atheism that I find of interest is that there is little or nothing within the that specific world-view that gives rise to me having to have a high moral standard to live up to. In fact, the vast majority of atheists that I have met seem to be unpleasant, unhappy, self-focussed and basically cruel individuals. Mind you this same statement applies to many who profess a belief in a god, god's or God. There doesn't appear to be any joy in their lives or anything else that would convince me that their world-view has anything of worth (belief in no god or belief in a god).
It was those who had a personal relationship that backed up their belief that seem to have something different, unexpected, powerful and life-changing. This is what made me look at it more closely and discover that Jesus is not a long way off, but willingly walks day by day with those who are His. Does that mean a life of no trouble, no trials, no difficulties, no pain? No. But it does mean that no matter what comes, there is help in it. Does being a Disciple of Jesus Christ mean you are protected from all the evil that happens? No, but it does mean that you can have joy and can and should be a help to others in those times, even when facing extremes.
The actions of many who claim to follow Him are very much examples of choosing their own path not His. They are no more His followers than the members of the local coven down the road. Certainly, many in the west are ignorant of the reality of what it means to be a follower of The Way, unlike many of the believers in other parts of the world.
There is an old saying, there are no atheists in a foxhole. The test of ones beliefs will always lie in whether or not one changes ones belief system when given the choice of change or die. If one chooses to change then whatever belief system they profess doesn't hold any value to them. But if it is valuable to you then you won't give it up.
For those who don't believe Jesus Christ ever existed, I have a political question for you. If He didn't actually exist, why did the Roman government of that time not use that fact as one of the weapons against Christianity. The extant records that do exist seem to indicate that the Roman government of that time recognised His existence as an actual person.
One of the major problems for Christianity at that time was it propensity for being politically incorrect. To be acceptable in the eyes of the Roman government, it only required accepting (what we would and do call today) the Cult of Emperor Worship. However, Christians of the day would only bow down to Jesus as God, never to a man. This meant that there were many who faced the lions (and other wild beasts), crucifixion, burning at the stake, boiled in oil, torn apart, executed in many different ways for that particular belief. All without lifting a hand against those who brought these things upon them.
Whether you want to believe in Jesus or you don't, that is an individual choice and something that is yours alone. You are responsible for it, not anyone else. However there are consequences for whatever you choose and you need to live by it.
If you want to call Christianity a farce and that Atheism is the way, then you'd better be prepared for the relevant debate.
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And your attitude is the exact thing he's complaining about. In extreme cases, people of faith (or the wrong faith) experience discrimination.
That some people cloak themselves in religion to lend themselves a respectability they don't deserve while behaving badly doesn't mean their bad behaviour is due to their religion. It's due to their attitudes.
I should point out that any belief system, including atheism, can and does get abused as an excuse to wield authority over others. In your case you're dismissing Anonymous Coward, May 17th, 2016 @ 1:17am out of hand based on half-baked assumptions about people of faith in which the term "sky fairy" figures to a greater or lesser extent, am I in the ballpark?
Don't be so smug. Neither having nor not having a faith makes you better or worse than anyone else. It's what you do with it that counts.
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This is a message that I wish more people would take to heart.
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The only thing that matters is how people behave.
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Your point? They sure as hell aren't exempt from criticism.
I should point out that any belief system, including atheism
And there you fail again. How can NOT believing in one single thing be a belief system? Atheism deals with one issue only: atheists don't believe there's sufficient evidence to prove that a god exists. That's it.
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There's "criticism" and there's "firing or refusing to give people a job because of their beliefs."
I've also heard of people being treated as mental patients because of their faith. How can that be right?
And there you fail again. How can NOT believing in one single thing be a belief system? Atheism deals with one issue only: atheists don't believe there's sufficient evidence to prove that a god exists. That's it.
That's not true, per your own comments and that of the other AC. The truth, in many cases, is atheists absolutely excoriate people of faith, going way past criticism to actually personally having a go at us. If it's merely a case of not having enough evidence to work with, surely to goodness you'd be asking for such evidence and checking it out. You're not. You're dismissing us out of hand and lashing out at us.
When I don't have enough evidence of a particular thing I seek out information on that thing. I keep asking questions until I get answers. I've had to change my mind on drug policy from a prohibitionist stance to a "treat it as a health problem" one. Why? Someone provided me with evidence.
If you don't want evidence and are not willing to check it out because you're annoyed with certain people of faith for behaving badly, fair enough. Let's agree to disagree.
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https://www.amazon.co.uk/New-Evidence-That-Demands-Verdict/dp/0785242198
Have fun debunking that.
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Go back to school, Wendy. Don't waste your brain on this silly stuff.
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Oh, so you're really not allowed to live out your homophobia (based on some 2000 year old text and the say-so of an immoral god, no less) to discriminate against people's sexual orientation that's none of your damn business anyway? Tough shit!
I've also heard of people being treated as mental patients because of their faith.
[citation needed]
You're dismissing us out of hand and lashing out at us.
Dude, you guys had 10 times more time than homeopathy to come up with evidence for your beliefs and literally all you got is a self-contradictory book. Whose fault is this?
And stop with this ridiculous persecution complex already.
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https://www.openbible.info/topics/slavery
And no, owning people as property and being allowed to beat them so they die > 2 days without being punished is in no way "Indentured servitude".
"However there are consequences for whatever you choose and you need to live by it."
And right on with the threats. So tell us, what consequence is there for someone not believing in Jesus?
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Ain't Copyright Great?
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Many organizations get away with filing DMCA complaints against video uploaders without fear that uploaders will file counternotices. NYU assumed that the uploader would simply back down, out of fear of litigation.
Now, NYU has found itself in the middle of a screwup.
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It is fair use
This means any video can be posted, because people will talk about it, comment on it, criticize it, etc.
Certainly Christians seems to get all butt-hurt when people correctly point out they worship a fictitious god, and venerate a supposed "savior" who is nothing more these days than a dusty pile of bones somewhere in the Middle East (if Jesus existed at all...there is no proof he ever was a real person). Nor was this supposed "Jesus" (not his real name) character unique....there were several dozen other prophets who existed hundreds or thousands of years before Jesus supposedly lived who all had the same traits attributed to them: Born of a virgin on Dec. 25th, healed the sick, raised the dead, died and rose again after 3 days, etc.
But that is all academic.
NYU has no case.
Youtube Should turn around and sue the crap out of them.
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Re: It is fair use
It's not quite that extensive. Commentary and criticism apply not to the reaction to the video, but the purpose behind posting it and using copyrighted material within it.
You can't just post anything and claim that it falls under fair use by saying 'People will comment and criticize it', the use of copyrighted material has to be for a use that falls under fair use, like posting a clip or excerpt for discussion, parody or critique.
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Re: It is fair use
For instance, there is no field where evolution should be more evident than the field of genetics. And guess what? Nothing in that field shows evolution is even remotely possible. In fact, it shows the opposite, that organisms can specialize, but never generalize and gain new information. Look at pure breed animals. They are the result of inbreeding and thus have genetic defects that follow them all throughout the generations. Genetic info, once lost cannot be gained.
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/sarc (because some believers will not see it)
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Let the conversation continue. On your mark, get set, GO!!!!
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Opinion
"if Jesus existed at all...there is no proof he ever was a real person"
There is more proof for Jesus than for any other historical person through the Middle Ages. If Jesus didn't exist, then you really need to look at people like Socrates, Plato, Aristotle, Caesar, etc., because they have less proof and (by your ridiculous argument) probably didn't exist either.
There is NO doubt that Jesus was at least a historical person. To deny it is to put yourself in the same category as holocaust deniers or flat earthers. Now I understand that you may not believe he was God on earth or a prophet capable of performing miracles, but to deny his existence just makes you sound like you know absolutely nothing.
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With jesus, all the writings came about decades after death - not a single one was written within at least two generations of his alleged life.
If you deem what there is of Jesus 'proof' he existed, then there's also 'proof' that Harry Potter existed, and what's more the writings about Potter are more concise, more accurate, less at odds with each other.
So if Jesus existed, so too did Harry Potter.
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You talk about decades for Jesus but ignore the centuries for some of the others.
The interesting thing about some of the modern scholarship is what I would call the "Emperor's New Clothes" blindness when coming up with new models or theories about historical figures and events. An example would be a review of the existence of the northern kingdom of Israel in the time period after the time of David and Solomon.
The particular authors (both Israeli) assert that the kingdom found in Northern Israel worshipped a couple of cow idols and had nothing to do with the jewish kingdom to the south (as in were not related at all.
When one reads their paper, one notices that the evidence they provide could have come straight out of the OT. their conclusion is that there is no relationship between the two kingdoms. They provide no evidence to support their thesis. If I recall correctly, they dismiss the written record as being of no help, even though the evidence provided matches the written documents.
Go figure that out.
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Teaching them to do it "right"
Yes, the dismissal for the case against YouTube will make the case relatively inexpensive--NYU will win no award. But it will cost YouTube lawyer hours; and at $600+ per, those are not cheap.
Suppose such lawsuits are filed regularly by NYU and others. That would tend to discourage the restoration of content after the filing of a counter-notice. Such restoration is not mandatory under the DMCA. For example, there have already been complaints that YouTube sometimes refuses to restore content after receiving a counter-notice; due to contract requirements.
In this specific case, it is already likely that the easy settlement would involve YouTube contracting to discontinue content restoration after an NYU DMCA. If enough big content providers follow the example, perhaps non-restoration will become universal policy.
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Re: Teaching them to do it "right"
... completely gutting the idea and purpose behind counter-notices in the first place, and driving yet another stake in any respect people might have for the law.
You seem to be looking at the long view here, but I'd argue that you're looking at it the wrong way. Much like patent trolls the best defense is to make it clear that you'll fight, even if it costs you, no matter what, so folding here would just encourage other companies to sue YT to try to force them to keep content from being restored on their service after a counter-notice has been filed.
Contrary to your position I'd argue that they are much better off presenting as strong a defense as needed, spending considerable resources if needed to make it clear that they are willing to do so, and thus discourage others from trying the same to bully them into keeping content down when a counter-notice has been filed.
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"We took the video down upon receipt of the DMCA notice. We never restored the video. We performed our statutory duty. Therefore, these claims against us are frivolous and we move to dismiss them in their entirety with costs to be paid by NYU."
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Re: Re: Teaching them to do it "right"
Oh, I agree, they'd be much better off presenting a strong defense.
But corporate bean counters are prone to argue for the cheap solution; and hand-wave "better off."
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Spend potentially large resources now for one fight, gaining a reputation as a company that is willing to spend when it comes to defending themselves legally and they drastically reduce the chances that someone else will try the same in the future.
Alternatively go the cheap route now and they get a reputation as a company willing to fold anytime someone comes asking, and as a result they get dragged into multiple cases in the future, which is likely to be quite a bit more expensive over the long term.
If the decision really does come down the the bean counters then hopefully they're smart ones able to look past the short term.
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Agnosticism, ha!
Kids these days and their anthropomorphic gods... Give me that old time religion, where gods were REAL tentacled horrors from another dimension!
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