Hello and welcome to this blog about YouTube copyright
strikes and my recent experience.
This is quite a difficult blog for me because obviously
wherever copyright is involved there are at least two parties.
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The use of equipment for recording... visual material... inside the Event is strictly forbidden?
©Harveywetdog |
I’ve got to try desperately hard not to name the other parties in this case, that’s not the point of the blog and if I do, I’ll make sure I edit that out before it is published.
When I set out to write the blog I wanted to believe the other party thought they were acting in good
faith and in line with YouTube processes and procedures; now I’m not so sure.
The other reason why
I need to be careful is because obviously I’m not an expert on copyright (as
this experience demonstrates) so I’m not trying to say this is legal advice in
anyway, all I’m giving you is my experience of what might happen if you get a copyright
strike and more importantly, the response you can expect from YouTube. Toward
the end of the process, I learned that YouTube process copyright in line with
the Digital Millenium Copyright Act (DMCA) which is a US piece of legislation,
but which aligns with other International agreements on Copyright. Knowing that
helps explain the way YouTube responds to copyright infringement claims.
From the get-go let’s make one thing clear; it is my experience
that YouTube will assume you are guilty of breaching copyright and will act
accordingly. There is a useful diagram in their guidance which suggests that they
can decide to ignore a takedown request, but the safe harbour clauses of the
DMCA mean that they are most likely to err on the side of caution, remove
the video immediately (and issue the copyright strike) and then invite the
injured party to enter the counter notification process.
Now, if you’re going
to directly copy somebody’s video or somebody’s music and you get a copyright
strike then you’ve just got no excuse, you’ve most likely got no way out of
that; you can try your “fair use” arguments and all that but honestly you’re on
your own with that one.
My case was slightly different; how can I explain this
without naming the other parties involved? In the U.K. we like either motoring
or football analogies and in this case we’ll use a football (soccer) analogy. Imagine
you’ve gone to a football match, you’re possibly accredited media, nobody’s said anything about videoing restrictions so you decide
to get your camera out and video part of the game, you publish your
video and you then get a copyright strike from the people who claim to own the exclusive
broadcast media rights.
In this case you’ve definitely not used any of their video,
you’ve shot the game from a totally different angle to those they used; you’ve
not got the bandwidth to show the whole of the game but your one minute in
ninety minutes has caused them to act against you and request takedown via a
copyright notification. Furthermore, you’re not told what their actual claim
is. You filmed this yourself, you’ve edited and uploaded it yourself, it’s all
your own work but nevertheless you have a copyright strike.
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Do not make false claims
Google YouTube advice |
That’s basically the situation I found myself in. Now as I
say I’m not an expert but what I do know is it certainly didn’t feel like a
copyright issue, but nevertheless, YouTube responded as if it was. They accepted the complaint by the other party and they took down
three of my videos and gave me a copyright strike. As you know it’s three
strikes and you’re out and I was one down.
I was running on 2 out of 3, so what to do? When you read the
words in the email from YouTube it’s all automatically generated and it talks about the use of human and manual tools to identify copyright infringements; well clearly the other party couldn’t give a URL
of a video that had been copied. They relied on a vague text description.
I don’t know if they provided any other explanation -
certainly that wasn’t passed to me but that mixture of human and automated
tools decided that there was a copyright issue here serious enough for me to
receive a strike.
Now you realise as soon as you get the strike you’re
entering into a formal legal process and some might say you’re best off accepting it and just keep your nose clean for 90 days.
That wasn’t my response and I decided to raise the counter
notifications. I had three videos, and when you read the explanation it tells
you that you can produce one counter notification to cover all three but it
doesn’t explain how you do that; I couldn’t actually see how you could but I
suspect all you have to do is put the three URLs at the top of the counter
notification and then use a common explanation.
I seem to remember the counter notification is restricted in
how many characters you can use so they’re not exactly expecting war and peace!
Because I submitted them one at a time, I was able to submit one
and then sleep on the other two. It was possibly a good job I did; anyway, when
I looked at YouTube the next morning, I was told that my counter notification
had been rejected. Again, you aren’t really given any reason, and I just get
the impression that YouTube are terrified of giving you as a creator any help
because it might appear that they were endorsing an illegal copyright action; I
suppose that’s fair and you can understand their position. I’m pretty sure the
words stated you don’t have any right of appeal against this decision - but of
course you have!
You don’t work in the civil nuclear industry for 30 years
without developing a bit of backbone and the ability to make coherent arguments
when faced with adversity, so I immediately appealed and the route I chose was
the creator chat line to explain what had happened. The agent I got was not
unhelpful but couldn’t answer the question. They passed me to a supervisor and
the supervisor listened, as much as you can on chat, and whatever I said
obviously convinced her enough for her to take this up with the copyright team,
which she did, and the basic message I got back was “submit again and it’ll be
accepted” which I did, and it was; one down.
I then had videos two and three to resolve; I used exactly the same
wording for these two (which was a more punchy version of the counter notification I’d used for video 1) but applied them one at a time and ironically one was
accepted immediately, and one was again rejected for no obvious reason. Once
again, back to creator chat, and they said, well they implied, that I had missed
some important information off and I’m not sure what that was but I basically
resubmitted the same information again and that was the third counter
notification accepted and with the other party who I was told had 10 days to
review it and either ignore it, in which case it would lapse, or take me to
court.
The words are quite clear of what “they’re taking you to
court” means and what YouTube are looking for in terms of evidence of that and
so you have 10 United States business days to sit and wait. I’ve got to admit
though there was once or twice when I had a little wobble and thought, do I
really want to do this? You really need to get some proper legal advice, which I
did, but, because I was lacking any details from the other party as to what it
was I was supposed to have done wrong, all the legal advice could tell me was
that ‘it’s a little bit difficult for us to advise you but if you do get
anything from them come back to us and we’ll take it from there.’
One thing that you are encouraged to do as a part of the
process while you’re dealing with your copyright strike is to attend copyright
school via the link YouTube provide. I did that because obviously I really
wanted to learn what it was I had done wrong, however it didn’t really say
anything about broadcast rights.
"[my video] does not make use of any output from *** whatsoever and neither would I need or want to do so"
At the time I didn’t know if sports broadcast rights were
covered by the umbrella of the copyright process; it is obviously something
that you can only argue verbally - you can’t really use a tool to detect that
and provide a match, can you?
While I was waiting for the counter notification to be processed,
I checked the e-ticket I had been given and sure enough, buried down in the
small print was a notice that the use of equipment for recording any audio,
visual or audio-visual material ……… inside the Event is strictly forbidden.
It also warns that any unauthorised recordings may be confiscated or
destroyed. I guess there’s common law and there’s common sense and I guess
common sense tells you that people aren’t going to stop videoing on their phones
but obviously if somebody wanted to make an example of somebody then this
clause gives the organiser an opening to act. I’ve certainly been told by
events that I would have my equipment confiscated if I turned up to video after
being refused accreditation and permission to publish video.
A deeper trawl of the internet finally told me that a sports
event per se was not a “work” that qualified for protection under copyright law
(although it does appear this is constantly being reviewed as a number of athletes think it is unfair). Of course, a broadcast or
transmission of content from a venue, even though the event itself is not a
copyrightable work, does become a copyrighted work once recorded or
transmitted. Which is why I was glad I’d used the phrase [my video] does not
make use of any output from *** whatsoever and neither would I need or want to
do so. As I explained earlier YouTube claim to apply the DMCA when processing
counter notifications and I can see nothing to say sport would be treated as
copyrightable work under US law either.
Ultimately the ten business days elapsed without any further
action from the claimant, my three videos were restored and the copyright
strike taken off my channel. I’ve now formally complained to YouTube that they
allowed an erroneous takedown request against my channel (on the basis that sport
is not subject to copyright per se) and that, and without prejudice, they allowed a third party to
execute an act of malicious compliance against my channel without redress. In
other words, and again without prejudice, an experienced broadcaster should know that sport per se was not subject to
copyright, would know the impact the takedown request would have on my channel
but went ahead and initiated the strike regardless.
What can I say in terms of lessons learned? Well, fascinatingly, sport per se is not
subject to copyright, but events will and do attempt to protect
exclusive broadcast rights by controlling access and permissions. YouTube
are clearly terrified of being seen not to act on copyright claims and will err on the
side of caution when they receive a takedown request. Obviously do not copy
others work and be careful what you’re uploading, act with caution and take
legal advice where you can.
Finally, the counter notification process is survivable but
isn’t for the faint hearted, you’ll get some serious legal jargon thrown at
you in an attempt to put you off; and most importantly, do not make false claims.
Some useful links
Elam, V., (2016) “Sporting events as dramatic works in the UK copyright system”, Entertainment and Sports Law Journal 13, 1. doi:
Intellectual property and the specificity of sports
Can athletes claim copyright in their sporting performances?
The Digital Millennium Copyright Act 1998
Copyright takedown request process
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Harveywetdog/Author - David Robinson CEng FIET
David spent approaching 50 years in Her Majesty's Electricity Supply Industry before retiring
He was part of the highly successful design team on the Sizewell B Nuclear Power Station Project before spending 25 years producing safety cases to keep our aging AGR fleet generating for the good of the nation
He is responsible for the Harveywetdog YouTube Channel which he maintains as an outlet for his creative talents
David is now in remission from blood cancer but refuses to be a victim
All views are now his own but might be influenced by the medication he's had to take
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