Social Media Law Essentials – Youtube Copyright Strikes, Content ID and Infringement Explained.  Need an internet lawyer, call us at (877) 276-5084.

2024 Update:  What to know about Google DMCA takedowns

Introduction

Everyone knows Youtube is the greatest thing there on the web.  The ability to post, watch and share movies is nothing short of amazing.  However, there are copyright legal issues that can arise where one company claims another is infringing their audio or video in a movie.  This blog will discuss some of the major risk areas to think about, and the process for dealing with copyright infringement notices with Youtube which could lead to costly “strikes” (as they say in baseball, three strikes and you're out, meaning you or your business could love is Youtube channel.  We will also discuss the ContentID system and procedures to challenge claims third parties may make on your uploaded videos.

What types of works are copyrightable?

The first and most important thing to realize, is “what is a copyright?”  Basically, any work of art or authorship, fixed in a tangible medium of expression AUTOMATICALLY obtains copyright protection.  Yes, there are benefits that come with formally registering the copyright with the U.S. Copyright Office, but a writer, artists, illustrator, software designer, video producer, drone video-maker, singer, songwriter, etc. does not NEED to register for IP protection to be had.  This means, whenever a song, book, movie, film, music sheet, poem, cartoon, or other item is created, the “holder” of the rights will be able to stop other persons and companies from making infringing uses of their digital product or content.  Many prominent companies will monitor the internet for infringing uses, and send DCMA takedown notices, and initiate copyright complaints.

How does the Content ID system work on Youtube?

Basically, if your company is a big producer of digital content (ex. software, music, and video producers), such as a TV network, movie studio, music producer, recording artist, record label, video game production company, or singer-songwriter, etc., you may want to seek to partner with Youtube, and create a “CMS level account.” 

Setting up a “Content Management System” account provides access to an online dashboard that allows the creative content creators to upload “reference files” of their content which gets sent to the Youtube ContentID database.  The CMS user has the ability to set certain content restrictions, rules for what constitutes infringing activity, and can set their content to react a certain way of someone else uploads a similar copy of the copyrighted works on their Youtube channel.  For example, you can monetize an infringing use instead of doing a DMCA takedown, or suing them in federal court for willful copyright infringement.

So having a CMS level account is a great way for major music and entertainment companies to monitor and protect their rights online, while also allowing a certain amount of “infringing” activity to be permitted (which can often happen when the digital rights holder allows infringing uploads by another user to continue, but agrees to allow the placing of ads on the infringing video which revenues the copyright holder will be entitled to.  

NOTE:  To qualify for the YouTube ContentID partnership, the copyright holder must have "exclusive rights" to the copyrighted content, and be able to prove they own these rights.  According to YouTube:

"Content ID will match a user's reference content against every upload to YouTube. Copyright owners must have the exclusive rights to the material that is evaluated. Common examples of items that may not be exclusive to individuals include:

• ​mashups, “best of”s, compilations, and remixes of other works
• video gameplay, software visuals, trailers
• unlicensed music and video
• music or video that was licensed, but without exclusivity
• recordings of performances (including concerts, events, speeches, shows)"

Case Study

I have a baseball homerun video that was taken over twenty years ago when I was a college baseball player at Fresno State University (I later played three years in the Cincinnati Reds farm system).  The video was from the college world series in 1988.  That's a long time ago.  One day, for fun, I decided to upload the video on my legal youtube channel.  Once I posted the video, I noticed that “ads” starting running on my videos.  Since I hate ads myself, I never subject my subscribers to watching these.  However, now an ad was running if someone wanted to see my Omaha Nebraska homerun, they had to watch the video ad.

I was wondering what the heck was going on (since I didn't particularly like someone else taking control of my video), so I started to look into the Youtube Content ID scanning system.  I learned that a third party was claiming rights to the video (no it was not ESPN who shot the video, so it made me wonder if it was legitimate).   In my youtube account (in video manager), I went and noticed a “third party” had claimed I was using their copyrighted video.  Now I am not claiming I shot the video or that I owned it, but certainly, I thought this 1-minute clip was a “fair use” or possibly in the “public domain” and also was wondering why anyone (ESPN or T3MediaSports) would have ever uploaded a reference file on that video from almost twenty years ago.  At any rate, as I noticed in the youtube video management page, there was indeed a third company – T3MediaSports – claiming rights in the baseball video, and instead of setting their rules to report me and to try to take down the video off my website (ex. a DMCA takedown notice), they set their rules to “monetize” the video making money from ad revenue.

Now while I am suspicious about this company, and since they claim to have the rights and appear to consent to the use of the video, I am not going to say anything, and do not want to risk getting a “copyright strike” (being in good standing with Youtube, owned by Google, is a big thing, for one, I get to upload my legal videos, some that are over 15 minutes in length.  So you never want to lose that privilege, certainly over a video posted for fun.

So that is a basic overview of how the ContentID system works to protect the IP of another company.  Make sure to watch the video on this topic so you can see how it works visually.  So in sum, being caught with infringing content (such as a video gamer uploading a playing a video game tutorial on the web can be fun, but it could also lead to a take-down, strike, notice of copyright infringement, and sometimes even a lawsuit for damages.  So it is always the best bet to be very cautious and prudent when uploading your videos on Youtube, Vimeo, Dailymotion, Youku, Vube.com, LiveLeak or others.

Is the ContentID different from getting a separate copyright infringement notice from a third party rights holder?

Yes, the ContentID system allows a copyright holder to set various permissions on their videos (such as take no action, track the video stats, monetize the video, or even block the video).  These rights are protected through the ContentID system itself, and happens almost seamlessly).  But not all copyright holders are registered or allowed to use this special youtube feature designed for creators to protect the IP rights of some of the largest rights holders in the world.

But a smaller company, such as a photography business, or a drone video clips producer, may find his or her clips being used in an online video and may want to stop that type of infringing activity.  Not being a CMS account holder, the way to process the third party rights claim over the audio or video being used, a formal copyright complaint would need to be filed, essentially filing a “takedown” infringement notice.

Youtube has a process for doing this, and you can find more information on their website.  In general, here are a few things the notice must contain to be deemed valid.  This is from their website regarding requirements of an infringement notice:

Copyright takedown notifications must include the following elements. Without this information, we will be unable to take action on your request:

1. Your contact information

You'll need to provide information that will allow us and the uploader(s) of any video(s) you remove to contact you regarding your complaint, such as an email address, physical address or telephone number.

1. A description of your work that you believe has been infringed

In your complaint, be sure to clearly and completely describe the copyrighted content you are seeking to protect. If multiple copyrighted works are covered in your complaint, the law allows a representative list of such works.

1. Each allegedly infringing video's specific URL

Your complaint must contain the specific URL of the video you believe infringes your rights, or we will be unable to locate and remove it. General information about the video, such as a channel URL or username, is not adequate. Please include the URL(s) of the exact video(s). The URL should be in the following format: www.youtube.com/watch?v=xxxxxxxxxxx

1. You must agree to and include the following statement:

“I have a good faith belief that the use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law.”

1. And the following statement:

“The information in this notification is accurate, and under penalty of perjury, I am the owner, or an agent authorized to act on behalf of the owner, of an exclusive right that is allegedly infringed.”

1. Your signature

Complete complaints require the physical or electronic signature of the copyright owner or a representative authorized to act on their behalf. To satisfy this requirement, you may type your full legal name (a first and last name, not a company name) to act as your signature at the bottom of your complaint.

So these are the basic requirements to be aware of if your company wants to assert a copyright infringement notice or send a DMCA takedown notice.  Note that filing false and bad faith documents under penalty of perjury is NOT something that should be taken lightly. Consult with a copyright counsel before taking actions you are not sure about.

Watch Attorney Steve Video Explain this Legal Topic

VIDEO:  Click the picture above to learn more about a real estate example of the Content ID technology.  Make sure to click on the Red “V” to subscribe to your legal channel.

Making legal challenges to infringement notices

If the offending video is ultimately removed via this DMCA takedown copyright infringement notice process (removal requires youtube staff action) you will get a “copyright strike.”  If you have a youtube account and rely on your channel to make ad money (ex. video gamer tutorials online, or have a fun online show or popular reality type show), getting a takedown notice may be something you need to fight and challenge and you may need to stage your own “copyright strike” (ex. go on the offensive against the offending bully).  The same goes for dealing with a ContentID “third party claim” as noted above.

In these situations, you may need to make appropriate legal challenges that raise common copyright infringement defenses you need to know.  Some of the defenses are:

1. Fair use (this means you are only using a little bit of the protected copyrighted content).  This could also mean for example that you are claiming a first amendment type issues (ex. in a parody video)
2. Work claimed to be infringing is in the “public domain” (meaning the alleged infringing content is not actually eligible for copyright protection).
3. The copyright holder does not hold the rights
4. The alleged infringing content was purchased online via CD or DVD (see discussion on first sale doctrine)
5. The rights holder “got credit” in the video (not always a defense)
6. The party being charged with willful infringement is the legitimate owner of the copyright (ex. it was an independent creative work of authorship)
7. A proper license was obtained to use the alleged infringing content (ex, there is video or audio blocks that were purchased or licensed from a third party online music or video factory).  For example, you purchased content from Audio Jungle, VideoBlocks, or a website selling drone video footage.

These are just some of the common examples of legal defenses that a party might claim in these types of disputes.  If you want to explore these in further details, or are thinking of bring a claim, or defending a youtube claim (or other video hosting website), contact Steve Vondran, IP lawyer at (877) 276-5084,

What is the general dispute process for a Content ID claim?

The following is what you can generally expect to deal with, and this is only a general guideline.  Youtube may changes these rules from time to time so make sure you double-check before taking any action.

1. You upload a video on your Youtube Channel; (ex. a wedding video that uses a Prince song, for example, “let's go crazy”)
2. The video you uploaded gets monetized with an ad by a third party creator
3. You do not believe the third party named has the legal right to enforce a copyright so you want to challenge it.
4. You may have received an email for Youtube, or you may have noted the third party asserting a claim in your “copyright notices” section of your channel, or you may see a link to “dispute” in your video manager on the video that it as an issue.
5. If you click the “dispute link” you will be able to assert an objection to the claim being made
6. When you do this, the party claiming to hold the rights has 30 days to respond. If they do not respond, the claim will expire and the monetized ad money would arguably be owed to you.  I believe this is going to be an upcoming area of litigation where a third party is asserting false claims to try to get ad revenues off a parties videos.  We can help investigate claims of fraud, “DMCA bad faith,” unfair competition, and other legal violations where money damages are involved.
7. The rights holder will have a chance to counter your arguments by providing a written response
8. A decision will be made. If the creator wins and gets upset they may just request that your infringing video be taken down or blocked from being seen on the website.  This will likely result in a copyright strike and two more and you are OUT as a user.
9. If you lose, an appeal through Youtube may be taken, again, with another 30 days to respond.
10. If a final decision works against you, there is always the “counter-notification process.” See below.  This process takes about 10 days once initiated.

According to the Youtube website:

“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.”

What are the requirements of the Youtube Counter-Notification Letter?

This is again straight from the Youtube website and discusses the requirements to proceed in this manner:

1. Your contact information

You'll need to provide the following information that will allow us to contact you or a representative authorized to act on your behalf (such as an attorney) regarding your request. If you are an uploader's authorized representative, please be sure to specify your relationship to the uploader in the counter-notification.

1. Full legal name (a first and last name, not a company name)
2. Email address
3. Physical address
4. Telephone number
5. Identification of the specific URL(s)

Please include the URL(s) of the exact video(s) or we will be unable to reinstate them. The URL should be in the following format: www.youtube.com/watch?v=xxxxxxxxxxx.

Your counter-notification must include specific links to the material that has been removed or disabled. General information about the video, such as a channel URL or username, is not adequate.

1. You must agree to and include the following statement:

“I consent to the jurisdiction of the Federal District Court for the district in which my address is located, or if my address is outside of the United States, the judicial district in which YouTube is located, and will accept service of process from the claimant.”

1. And the following statement:

“I swear, under penalty of perjury, that I have a good faith belief that the material was removed or disabled as a result of a mistake or misidentification of the material to be removed or disabled.”

1. Your signature

Complete counter notifications require your physical or electronic signature, or the signature of a representative authorized to act on your behalf, such as an attorney. To satisfy this requirement, you may type your full legal name (a first and last name, not a company name) to act as your signature at the bottom of your request.

Does Youtube use the Content ID system to monitor “Live Streams” and “Hangouts”

Yes, many persons do not realize that even these platforms are monitored for federal copyright infringement.  As noted on their website:

“Content ID scans all live streams and Hangouts on Air for third party content. When Content ID identifies third party content, a placeholder image may replace your live broadcast until Content ID no longer detects third party content. In some cases, it may terminate your live broadcast. Live streams and Hangouts on Air can also be terminated if they receive a copyright strike or a Community Guidelines strike.”

What happens if you get a Copyright Strike from Youtube?

Again, as noted above Youtube is Awesome so you do NOT want to get copyright strikes, especially if you are like me, and having a legal youtube channel is a key component to your success as a business.  So what happens to your account if you get a strike?  According to Youtube:

Receiving a copyright strike will put your account in bad standing and you will lose access to certain YouTube features.

If you receive three copyright strikes:

• Your account will be terminated.
• All the videos uploaded to your account will be removed.
• You won't be able to create new accounts.

Attorney Steve Tip: Deleting an infringing video will not eliminate the strike from your account.  So its always better to discuss your fair use defenses and issues BEFORE you upload your content.  You may want to upload your video in “unlisted” status to see what types of third party claims may be made before you “go live” with sharing the video across the social media web.  With Content ID, your video will be scanned against other digitally foot-printed content and if there is a “match” you have to make some decisions as to how you want to proceed.

What is the difference between a copyright takedown notice and a content ID claim?

 Copyright takedowns are basically third party requests sent to Youtube providing them that a third party is claiming content on the site is infringing a copyright.  In these cases, the video can be taken down (usually so Youtube can comply with the DMCA agent terms to keep their “safe harbors” liability protection), but when a takedown happens, this could cause the youtube user a “strike” in their account.  The ContentID infringement notice is slightly different as these are generated internally by other youtube users who have CMS level accounts.  In these cases, the rights holder may allow you to keep your video up but may monetize it with an advertisement.  If you believe your video was removed in error (for example you feel like you might have a “fair use” defense or public domain defense, etc.), we can request retraction from the rights holder or submit a counter-notification as noted above.  These strikes may expire in 6 months if no other videos are taken down during that time.  As to the Content ID claims youtube notes:

“Because Content ID is enabled by partnerships, claims are not accompanied by copyright strikes, and can not result in suspension or termination of your channel. However, if you believe a claim was made in error, you can dispute the claim. Learn more about Content ID claims.”

California YouTube Lawyer

Here are some legal issues that we MAY be able to help you with depending upon the type of case.  Note, we do not sue YouTube under any circumstances.  

 Our Social Media, Internet & IP legal services:

1.  Copyright infringement arbitration, mediation & federal court litigation (ex. software infringement, photo infringement, p2p file sharing)
2.  We can draft and defend copyright infringement notices
3.  We can help content creators protect their IP with DMCA agent services
4.  We can send copyright infringement notices and DMCA takedown letters
5.  BSA and SIIA software compliance audits (we are a leader in software audits with companies like Microsoft, Siemens, Vero, and Autodesk)
6. Counter-notification issues
7. “Bad faith” or fraudulent DMCA notices
8.  Illegal Content ID monetization claims by non-rights holders
9.  Online social media, audio and video disputes
10. Right of publicity legal issues
11. Fair Use Defense (parody lawyer)
12. Fair Use opinion letters
13. Unfair loss of youtube channel / account takedown by third-party strikes

Video Resources

1. Youtube copyright infringement notice

2. YouTube Fair Use Tips

3. Sample "fair use" disclaimer for your videos

4. DMCA "bad faith" takedown law (512f claims)

5. Copyright infringement common defenses

Contact a Federal Copyright Infringement Law Firm

Our firm handles a wide variety of legal issues dealing with IP, copyright, right of publicity law, internet law, and social media disputes.  We also handle BitTorrent Defense cases (ISP subpoena notices), copyright “bully” and "troll" cases and software audits from software publishers like the Business Software Alliance, Autodesk, Microsoft, Adobe and the Software Information Industry Association.  

If you need an IP software & technology lawyer, you have come to the right place.  Call us at (877) 276-5084 to discuss your case with an intellectual property firm. We handle trademark and copyright cases for rights holders and defendants across the United States subject to local federal court rules of admission.  We have appeared in over 150 federal court litigation cases.