A Guide to YouTube Removals-2015

A Guide to YouTube Removals-2015

Why was my video removed?

The reason for the removal of a video is usually mentioned in the email that YouTube sends to the account holder regarding the removal. If you didn't receive an email from YouTube, check your spam folder and check that the email address for your YouTube account is current. The message also should appear in your YouTube account, so check there as well.

Terms of Service Violation

These removals usually have nothing to do with copyright. Instead, they generally result when a video is flagged as containing nudity, gratuitous violence, or otherwise in violation of YouTube's Terms of Use or Community Guidelines. The Terms of Service also state that "YouTube reserves the right to remove Content and User Submissions without prior notice," so YouTube takes the view that it can remove a video for any reason it likes.
For more information about these Terms of Service removals, see YouTube's help pages. Sometimes, if you ask nicely, YouTube may review and reconsider the removal, although we are not aware of a formal process for this.

Content ID Match

Many videos trigger a response from YouTube's "Content ID tool" (also sometimes called the Video ID tool). According to YouTube, this system enables "copyright holders to easily identify and manage their content on YouTube." It works by checking every video uploaded against a database of audio and video "fingerprints" submitted by rightsholders. So when you upload a video, the Content ID tool can spot a song snippet used in that video, even if you never mention the name of the song or performer in the video description or title. You'll know if your video has been matched because a note will appear next to the video on the "My Videos" page.
The rightsholder gets to decide what happens when there is a match by setting "usage restrictions" — it can elect to Block, Track, or Monetize (i.e., put ads around the video and get a portion of the revenues). Major music labels have mostly opted for the "Monetize" approach. In most cases, no human looks at the videos — YouTube's computers spot the match and apply the "Block" usage policy automatically.
This tool created by YouTube can help you determine in advance whether a rightsholder might seek to block or monetize your video.

DMCA Takedown Notice

DMCA takedowns normally result from formal notices of copyright infringement from rightsholders to YouTube about your video.
As part of the Digital Millennium Copyright Act of 1998 (DMCA), Congress granted online service providers (like YouTube) certain protections from copyright infringement liability, so long as they meet certain requirements. One requirement of this "DMCA safe harbor" is that online service providers must implement a "notice-and-takedown" system. Another requirement is that YouTube must cancel the accounts of "repeat infringers."
That's why, when YouTube receives a formal DMCA takedown notice from a rightsholder, it removes the video. It also puts a "strike" on your account, and requires you to complete a mandatory session in its online "Copyright School." Once you accumulate 3 "strikes" on your account, YouTube will cancel all of your YouTube accounts, taking down all of your videos and refusing to allow you back as a YouTube account holder.
A proper DMCA takedown notice must meet certain requirements, such as identifying the infringing material clearly and specifically, and stating that the sender has a 'good faith belief' that the material actually infringes copyright. Too often, however, we have come across improper notices and/or takedowns based solely on keywords or a purely automated process.
If you learn that your video has been targeted under the DMCA, be sure to ask for a copy of the notice if it was not already forwarded to you.

YouTube's "Contractual Obligations"

YouTube has made agreements with certain rightsholders where special privileges have been granted allowing rightsholders to remove content as they see fit. If your video has been removed for this reason, YouTube will inform you and provide the contact information of the rightsholder to discuss the removal.

Getting Your Video Restored 

Next we'll discuss information that will help you decide whether to send a dispute or counter-notice.
Disputing a Content ID removal. If your video was removed thanks to a Content ID match, it's quite possible that no human at the rightsholder's office has ever seen your video. The fingerprint matching is done by YouTube's computers, and generally the blocking is done automatically. When you submit a dispute, however, the rightsholder is notified and your video goes into their "review" queue.
In other words, sending a dispute might well trigger the first human review of your video. Ask yourself what those who are employed by the rightsholder are likely to think when they see your video. Will they put it into the "let it slide" hopper, or make it a priority to remove? While it's impossible to predict what policies or sensitivities any particular rightsholder might have in place, there are a few things to keep in mind.

• First, the review staff are likely to take a dim view of verbatim, unedited copies of their works. That's the stuff that they call "piracy."
• Second, rightsholders are often sensitive about uses that, if they became widespread, would cut into an existing or anticipated revenue stream. For example, the music industry is used to getting paid when one of its songs is used in a car commercial. If you are posting a video advertisement for your business on YouTube, and using a song as the soundtrack, some in the music industry may worry that your use is usurping the business of licensing songs for use in Internet video ads.
• Third, some rightsholders can be sensitive about videos that criticize, parody, or mix their content with unexpected themes. Of course, these may also be precisely the situations where fair use (see below) and the First Amendment should protect the video. Nevertheless, some rightsholders may want to silence this kind of expression and may be willing to use DMCA takedowns, even if improper, to do so.

If your video was matched by the Content ID tool, you can submit a "dispute" and get it put back up. This can be done from the "copyright notices" section for your videos and requires you to answer a few questions. Once you submit a dispute, rightsholder can uphold the Content ID claim and reject the dispute, or release the claim. At this stage, if your account is in good standing with YouTube, you can appeal the rejected dispute with a maximum of three appeals at any given time. The rightsholder can then either release the claim on the video, or issue a DMCA takedown notice (more on that below). A rightsholder has 30 days to review a Content ID dispute, and 30 days to respond to an appeal of a rejected dispute.
It is important to keep in mind that at any stage in the process of disputing a Content ID claim, rightsholders can initiate the DMCA takedown process, or sue you. If they do sue you, though, the cost of defending yourself could be considerable, and if you lose it's possible you could be on the hook for damages and even the rightsholder's attorneys' fees.
To sum up, if your video was removed by the Content ID tool, and you decide to dispute the removal, you will have tweaked the rightsholder's tail. Sometimes the rightsholder will decide that your video wasn't the kind of thing it meant to remove, and just leave the video alone. If, on the other hand, the rightsholder really wants the video to stay down, the easiest and cheapest way to accomplish that is to send a DMCA takedown notice.
Sending a DMCA Counter-notice.
If your video was removed by a DMCA takedown notice, you can submit a "counter-notice". In order to be valid, however, the counter-notice must include your contact information, a signature, a statement under penalty of perjury that the "material was removed or disabled as a result of a mistake or misidentification," and your consent to the jurisdiction of your local federal court (if the rightsholder elects to sue you). Unless the rightsholder files a copyright infringement lawsuit against you within two weeks of receiving your counter-notice, your video will be restored and the "strike" removed from your account. If the rightsholder does sue, your video stays down until the lawsuit is resolved.
In addition, every DMCA takedown notice that is sent regarding one of your videos counts as a "strike" on your account. If your account accumulates three strikes, YouTube will cancel all of your accounts and remove all of your videos. The only way to remove a strike is to send a formal counter-notice.
When you send a counter-notice to YouTube, you leave the rightsholder with two choices — either allow the video to be restored after 10 business days, or sue you to keep it down (the rightsholder could contact you and ask you to withdraw your counter-notice before suing, but is not required to do so). This is consequently a higher stakes game than disputing a Content ID removal, because the rightsholder does not have a cheap and fast way to keep the video down, short of suing you. We recommend that users research copyright law and consult a qualified attorney before sending DMCA counter-notices.
Disputing a Contract Claim
Under these anti-user agreements, the usual ways to dispute rightsholder claims are not available. In many instances, even if you successfully submit a DMCA counter-notice, the video will not be reinstated. These agreements are opaque, and scope of what's allowed under them is unknown. They may be short-term, or long-term.
Fair use is dealt a serious blow under these agreements.

Deciding Whether to Challenge a Takedown

Because disputing a takedown can have potentially serious legal consequences, you should exercise care in deciding what to do. The following is intended to provide general information, and is not legal advice. We encourage you to contact a qualified lawyer if you intend to dispute or counter-notice to restore a video.
The first issue you might consider is whether the claim might be correct. Does your video use copyrighted material? Do you have a right to use that material?  There are many circumstances where copyright law allows you to borrow from pre-existing works owned by others. The most important of these are addressed by a legal doctrine known as "fair use," which excuses activity that might otherwise constitute copyright infringement. In evaluating whether something is a fair use, courts generally consider four factors:

1. the nature of your use (transformative works are more likely to be fair uses, as are noncommercial works);
2. the nature of the copyrighted work (you have more fair use leeway with factual works like news stories than purely creative works);
3. the amount taken from the copyrighted work (this is both a quantitative and qualitative inquiry); and
4. the effect on the market for or value of the work.

No one factor is dispositive, and the cases say that all the issues need to be considered together, rather than simply calculating a win-loss record on the four factors.
Fair use is a big topic. Fortunately, there are excellent resources online that explain it in more detail (e.g., Stanford's Copyright and Fair Use Center, Chilling Effects, the Fair Use Network, the Center for Social Media).
For most YouTube videos, however, a good place to begin your analysis is to ask the following questions:

• Is my video transformative? Is it noncommercial?
• Is my work a substitute for the original? Will people still want to buy the original after seeing my video?
• How much of the original work did I take, both quantitatively and qualitatively?
• Was the purpose of my use noncommercial, educational, for the purpose of research?
• If my use were to become widespread, would it harm the market for or value of the original work

I Think What I Did Was Lawful, What Else Do I Need to Consider?

Many people faced with a takedown are looking for the answers to two more questions:

1. If I dispute or counter-notice, will I get sued?
2. If I were sued, would I win?

Those can be difficult questions to answer, because videos are different, rightsholders are different, and cases are different. These are questions to discuss with a qualified lawyer.
Let's start with two facts:

1. If your video incorporates copyrighted material owned by someone else (like a clip taken from a movie, TV show, or song performed or written by someone else), the rightsholder could sue you at any time. They don't have to warn you first, they don't have to use the Content ID tool, they don't have to send a DMCA takedown notice.
2. It is very rare for a typical YouTube user to be sued by a major entertainment industry company for uploading a video. We have heard of a couple special cases, involving pre-release content leaked by industry insiders, but those aren't typical YouTube users. And there have probably been a few lawsuits brought by aggressive individual copyright trolls. That's right — millions of videos have been posted to YouTube, hundreds of thousands taken down by major media companies, but those companies have not brought many lawsuits against YouTube users.

So, while a lawsuit is always a possibility to be taken seriously, it is not as if the entertainment industry has launched a mass lawsuit campaign against YouTubers. Of course, that could change (see, e.g., what the music business did to P2P file sharers). But when you dispute or counter-notice, you are calling attention to yourself, and its a good idea to be confident about your legal position and risk.

If I Do Get Sued, What Then?

If you suspect that there is a possibility that you could be sued, but you want to dispute or counter-notice anyway, that would be a good time to seek specific legal advice (you may contact EFF, although we cannot promise to be able to help everyone). But here's some general information.
Lawsuits are Expensive. Litigation is a very expensive undertaking in our civil justice system. Under copyright law, a court may force the losing side to pay the winning side's attorneys' fees, but it is not mandatory. So even if you win, you might be left to foot your own legal bills. (Fortunately, some lawyers, including EFF, will take cases on a pro bono basis, but there are many more deserving defendants than there are pro bono resources to defend them.)
What If I Lose? 
Copyright law provides a prevailing party with a variety of remedies, including actual damages (how much money did the rightsholder lose due to your video) and disgorgement (any profits you made). If the copyrighted work was registered with the Copyright Office before the infringement began (most major media companies register their TV programs, movies, songs, etc.), the rightsholder may be eligible for an award of their attorneys' fees (which can quickly mount to be greater than any damages award), and can also opt for "statutory damages," where the court imposes a fine of anywhere between $750 and $30,000 (and up to $150,000 for willful infringements) per work infringed.