Over the past several years, companies such as YouTube® and Amazon® have offered internal procedures for handling intellectual property issues arising from the use of their websites. These procedures include YouTube’s “Copyright Management Tools” and Amazon’s “Brand Registry.” The procedures have a quasi-judicial feel to them, but they are not court proceedings with associated legal relief. These are private procedures provided by private companies.
Using YouTube’s Copyright Management Tools, anyone can file a copyright infringement notification to have a video removed or “taken down” from YouTube® for alleged reasons ranging from inappropriate content to trademark or copyright infringement. Notably, the video will be taken down BEFORE the video channel owner responds (sort of a “shoot first, ask questions later” approach). YouTube® calls this step in its process a “Strike.” Three Strikes and you’re out (the entire channel will be taken down permanently). See YouTube’s DMCA (Digital Millennium Copyright Act) webform.
However, YouTube® gives the channel owner a chance to respond to the Strike, which YouTube® calls a “counter notification” (CN). But YouTube® posts dire sounding warnings about filing a CN, which – if the CN is not to YouTube’s liking and is initially rejected – include: “We think it’s possible you are misusing our counter notification process.” Abuse of the process by either party can lead to being banned from YouTube®.
Nevertheless, for highly trafficked channels, three strikes can add up quickly, so it may be critical for a channel owner to respond to frivolous Strikes.
YouTube’s limited reasons for approving a CN are MISTAKE or MISIDENTIFICATION. If these vague, internal requirements are met to YouTube’s satisfaction, YouTube will forward the CN to the person who filed the Strike (i.e., the “claimant”) who then has around two weeks to reply. Specifically, YouTube® explains that the claimant “will have 10 business days to provide evidence that they’ve initiated a court action to keep the content down. This time period is a requirement of copyright law, so please be patient.” (emphasis added). So, this seems to be YouTube’s quasi-judicial way of allowing the claimant to “reply” to the channel owner’s “answer” to the claimant’s “complaint.” And put simply, the next step after a CN will be either a LAWSUIT filed by the claimant to keep the video from being re-posted, or the claimant may choose to not reply and the video will be re-posted.
Even if a channel owner figures out how to file a CN and is willing to go to court if the claimant replies to the CN, the channel owner must understand that YouTube® will share the channel owner’s personal information with the claimant; i.e.:
“If we forward the counter notice, we’ll include the full text of the counter notice, including any personal info you provide. By submitting a counter notification, you consent to sharing your info with the claimant.” (emphasis added).
YouTube® further explains that the reason for sharing personal information is so that the claimant may use it to file a lawsuit against the channel owner “to keep the content from being restored to YouTube.”
In these days of doxing (and fear of literal harm from certain elements of society), many channel owners are concerned about sharing their personal information in a CN.
Because YouTube’s process can lead to disclosure of personal information and can lead to an actual lawsuit, it may be prudent to consult an attorney before filing a CN. Fortunately, YouTube® will permit an attorney to file the CN on a channel owner’s behalf, which can preserve some level of anonymity in YouTube’s quasi-legal process.
Thrive IP® has helped clients in similar situations, as you may have read in my earlier post Trademark Opposition Victory.
If you, like many others, have received a YouTube® copyright infringement notification or need assistance protecting your intellectual property, please click here to find out more about litigation services offered by Thrive IP®.