On Tuesday, YouTube filed a lawsuit against one of its users for extorting others through false copyright strikes. After submitting unverified copyright claims on videos, the user in question would demand a payment (like $300 by Paypal or $200 in Bitcoin) or threaten a third copyright strike on their account, which would mean termination from the platform altogether.
The problem isn’t just that this user extorted others (though that’s terrible, too), it’s that platforms like YouTube arguably don’t devote enough effort to validating these claims, meaning users can freely submit takedown requests as a means of threatening other accounts.
Since the platform may not be vetting these enough themselves, what should you do if you receive a takedown request? Well, it’s a long and complicated road, even if you do own the rights to the content. For now, just the world we live in. But all that said, here’s how you can protect yourself:
What is a takedown request?
As UpCounsel writes on its website, a takedown request — sometimes referred to as a Digital Millenium Copyright Act takedown notice — is a notice provided to a web host, company, search engine, infringing party or internet service provider that they are hosting or linking to copyrighted material. This copyrighted material could include artwork, photos, videos, written words, etc. (You may have even received one from your internet service provider for torrenting movies or music.)
These requests can be sent without oversight by an attorney, meaning you or I could send one to a company claiming copyright infringement. To any person without a full understanding of worldwide copyright law, the threat of legal action or losing their accounts entirely can be highly intimidating.
And with this power comes a great potential for abuse — back in 2014, Gizmodo reported on the website AshleyMadison.com, which had user data leaked by hackers, threatening websites with DMCA requests to protect the names and other details of its users.
“ashley madison is using the DMCA in a way that it was never designed to be used in order to suppress reporting on the issue,” Andy Sellars at Harvard Law School’s Berkman Center for Internet and Society told Gizmodo at the time. “I think it’s a rather clean-cut case here. I think there’s clearly not infringement in these cases.”
According to Faiza Javaid, G/O Media’s deputy general counsel, the takedown notice should be sent by the copyright holder or that holder’s agent. Gizmodo has an example of one of ashley madison’s website’s takedown notices. (UpCounsel also has a template version on its website.) At the time of the report by Gizmodo, at least three websites received takedown notices and only one maintained the data on its website after receiving the notice.
As the DMCA writes on its website, typically, either the infringing party or the internet service provider will receive such a request and may take down the content. (Yes, your ISP can take down content if it receives notice and before you have a chance to plead your case.)
How do you determine if the request is legitimate?
If you’ve clearly infringed upon a copyright — for instance, by posting a photo without permission from the photographer — then your options are limited. You could remove the photo or risk further legal action (and needless to say it’s a lot easier to remove the photo than to hire an attorney). YouTube, however, may take down a video without your consent in response to a takedown request.
But there are lots and lots of exceptions, circumstances, and grey areas. As Gizmodo writes, you should ask yourself first: Is the material even copyrightable?
If your content falls under public domain, for example, you should be able to post it without issue. Public domain represents anything that’s owned by the public, rather than by an individual. This might happen if the copyright expires. If you can believe it, “Happy Birthday to You” only recently entered public domain after its publisher failed to acquire the rights to its lyrics and maintain a valid copyright.
Also, if your content falls under Fair Use, you may not have to remove it if you’re given the choice. One of the most common examples of ‘Fair Use,’ says Javaid, is work that parodies another work. (Think Weird Al Yankovic.) Commentary or criticism of a work is another example. (Quoting a line in a song in a review might be an example of Fair Use, for instance.)
Transforming an image so that it doesn’t sufficiently resemble its original might be considered another example. Again, it’s a grey area — when have you determined that an image is transformed enough so that you aren’t violating copyright?
If you’re unsure if your content falls under Fair Use, Public Domain or other permissible use, you can refer to this graphic we’ve written about before. Alternatively, yes, you can contact a lawyer for a little assistance, if you’re willing to pay for the privilege.
The material is not an infringement. What should I do?
Generally, after a DMCA notice, either one of two things will happen to the content in question: The web host will take down the content or they will issue a warning. If your content is taken down, you could send a letter back, as in a DMCA counter-notice.
“Before sending a counter-notice, be sure to carefully consider whether you are infringing on the other party’s copyright,” UpCounsel writes. “The counter-notice requires that you have a good faith belief that your material was wrongly taken down. If you send a counter-notice and the complaining party has a good case for infringement, you could trigger a lawsuit.”
Filing a counter-notice request is actually easy on most platforms. On YouTube and Instagram, the process is automated. Just follow the directions on and fill out the appropriate forms on their websites.
Will a counter-notice maintain the content on your site? Perhaps. On YouTube, a claimant (or individual alleging infringement) has 10 days to give the platform “evidence” of court action or the content may be reinstated. On Instagram, it’s between 10 and 14 days.
But as with the actual takedown notices, counter-notices can be easily abused, too. On one particularly bleak Reddit thread, a user claimed copyright infringement on a video, but the user hit back with a successful counter-notice and the video containing his copyright material was eventually re-instated. “That is how it goes, if you don’t go through with filing a lawsuit against the person over the video, the video can be re-uploaded all the time,” u/icon30 writes. “Huge YouTubers deal with this all the time.”
What if my content is still up?
If your content hasn’t been taken down, you could communicate with YouTube (or whichever platform) or the sender. As Legal Zoom writes, you should not ignore the letter.
Instead, you should show proof that you have the right to use the content (for instance, you could provide the proper licence from a stock agency that provided the photo in question).
And if you’re asked to pay, don’t give in just yet. Be sure to research the issuer of the notice thoroughly to avoid a scam; search places like Reddit to check whether others have received similar threats from the same individual. And if it comes to that point, it might be worth hiring a lawyer.
“Sometimes, you can work with actual photographers and negotiate something fair,” Javaid said. “Most good lawyers will contest or negotiate a settlement.”