It's important to note that whilst the basic premise of Copyright, its infringement, and its remedy, is pretty straightforward, the way persons and party's behave with respect to that is not. It can, and often is, extremely messy, complicated and convoluted simply because involved parties want to mitigate their liabilities with respect to policing content and the respective responsibilities and obligations therein. Put plainly, no-one wants to be held liable for the actions of others, nor be seen to benefit from said actions as a result.This material is provided for informational purposes only and should NOT be construed as legal advice on Copyright, Intellectual Property Rights or DMCA. It is highly recommended legal Council be sought in matters of law.
With the above in mind, now the dust has settled on the Sintel issue
we can turn our attentions to answering somewhat the “why's” and “wherefores” of YouTube being able to do what it does with apparent impunity; just how
are they able to make what often turn out to be false or erroneous claims of infringement without compromising their own standing on Copyright?
By defining 'content' claims relative to “Terms of Service
” infractions rather than “Copyright
Lets be clear about this, the language contained in a typical Content ID Claim Notice is indicative of its purported purpose; it expressly questions whether the accused has the appropriate permissions to use flagged materials
. That, simply put, is
an issue of “Copy Right” - having the 'right' (license or permission) to 'copy' (exploit or use) someone else's property. No "if's", "but's" or "may be's".
Or so the reasonable thinking wo/man would think.
There's a Jedi mind-trick going on here you see because, whilst the aforementioned reasonable wo/man is thinking “that's a Copyright claim isn't it? And aren't Copyright holders, or their representatives, the only ones supposedly able can issue such claims?
”, YouTube, with feigned shock, is saying “you said the video was yours? You lied to us so we're taking it down
”. See the mind-trick? We think it's a Copyright Claim, and respond with tremendous levels of tumult, YouTube/Google see only Terms of Service violations and doesn't see what all the fuss is about.
So, the simple facts that 1) the Content ID system is in affect a de facto loophole around the obligations and responsibilities attributable to Copyright
, and 2) that YouTube
(ab)uses Terms of Service policy enforcement to prosecute Copyright
, allows for Content ID claims to be phrased anyway YouTube see's fit, and call the process whatever it wants, just so long as neither aspects directly invokes Copyright and DMCA as commonly understood. In maintaining this faux posture, or continuing the mind-trick, it is not possible to hold them liable for losses incurred as a result of an action because, in their eyes, it has nothing to do with Copyright
and everything to do with the Terms of Service Agreement users declare against when uploading videos
If that wasn't bad enough, add “Errors & Omission Excepted
” to the mix, and whatever accountability might have been left flies right out of the window; no-one can be held liable for anything, even if they were/are/could be
, all because of an apparent disassociated and dispassionate machine-code error (a false-positive). And as everyone knows, machines harbor no grudges, malice or intent to cause harm so they cannot be held to account for their 'mistakes' either.
All-in-all this whole situation is possibly the best example of deliberately executed “plausible deniability
” anyone, never mind YouTube/Google et al, could have asked for.Additional Reading