Benjamin Ligeri recently sued Google, Viacom, and Lions Gate over the Content ID system YouTube employs for copyright claims. Such lawsuits often receive a good bit of publicity, but rarely come to much. This lawsuit might be different.
Content ID System
YouTube once followed the DMCA safe harbor legal requirements when processing copyright complaints regarding videos uploaded by users. After facing years of litigation pursued by major entertainment companies, YouTube decided to create a system that screens user-uploaded videos against a database of content known to be copyrighted.
YouTube does not provide transparency with its system. The general idea is YouTube assigns you a strike if you upload a video that matches content already in the protected database. A certain number of strikes can result in YouTube classifying a user as in “bad standing.” Users in bad standing cannot monetize their videos. This ban is a significant problem for people making a living off YouTube.
In his lawsuit, Ligeri claims YouTube issued strikes against his uploaded videos in violation of the DMCA compliance process. The claims are a bit convoluted. He essentially boils them down to allegations the Content ID system does not follow required DMCA compliance procedures and the copyright defense of fair use protects the videos in question.
Let’s start with the DMCA compliance claim. The YouTube Content ID system is sufficiently confusing that it is difficult to tell whether it complies with the DMCA or not. The custom process offers a notice, counter-notice system much as the DMCA does, but there is no indication whether the process works on the timeline called out in the law. Although the lack of transparency is par for the course with Google, a judge is likely to side with the company should it be able to provide evidence indicating at least substantial compliance with the law.
Who Owns Copyright?
The Ligeri allegations provide an exciting twist to the usual DMCA legal arguments. He alleges the copyright infringement claims made by third parties against his videos have no standing. Ligeri’s reasoning is neither the individual nor company asserting the claims own the copyright in the original content. In one case, a YouTube user known as Egeda Pirateria filed a copyright infringement claim against a parody Ligeri created for The Girl With The Dragon Tattoo. [Does “Egeda Pirateria” translate to “Egad, Pirate”? Inquiring minds wish to know!] Ligeri next alleges Viacom filed a takedown claim against Ligeri’s video critique of the Teenage Mutant Ninja Turtles movie, a film for which the company doesn’t own the copyright. In both cases, Ligeri alleges YouTube rejected his appeals despite knowing these facts.
If true, the Ligeri allegations certainly raise the specter of DMCA abuse. A judge is likely to allow the lawsuit to proceed to trial against Viacom and Mr. Pirateria if evidence is offered to support the allegations. Filing a copyright takedown notice for content you do not own is a clear abuse of the DMCA.
Would these claims also support a finding of liability against YouTube? Section 512(g) of the DMCA reads:
(g) Replacement of Removed or Disabled Material and Limitation on Other Liability.—
(1) No liability for taking down generally. – Subject to paragraph (2), a service provider shall not be liable to any person for any claim based on the service provider’s good faith disabling of access to, or removal of, material or activity claimed to be infringing or based on facts or circumstances from which infringing activity is apparent, regardless of whether the material or activity is ultimately determined to be infringing.
Given this language, Ligeri has an uphill battle when seeking a finding of liability against YouTube or Google.
Whether the Ligeri claims ultimately succeed is anyone’s guess. However, his success or failure may be irrelevant. One potential benefit of the lawsuit is the court will order YouTube to expose the inner workings of the Content ID system. Influencers using YouTube will be paying close attention to such disclosures.
Richard A. Chapo, Esq.
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