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Does the DMCA legally obligate YouTube to restore videos upon receipt of a counternotice?
Copyright attorney Ben Sheffner posed a fascinating question in his Copyrights and Campaigns blog. If someone who has had her videos removed by a DMCA complaint files a counternotice, does the DMCA legally obligate YouTube to restore the video? At first glance it appears that YouTube does have a legal obligation to restore the video. §512(g)(2)(c) implies that the DMCA will only immunize YouTube from a subscriber lawsuit provided that it restore her video within 10 - 14 business days of receiving a counternotice. But it's not as simple as that. Unfortunately, it would be EXTREMELY hard (though not necessarily impossible for reasons described below), for someone to successfully sue YouTube for failure to restore a video. As Sheffner correctly observes:
the host only needs a safe harbor from the subscriber if that subscriber would (absent the safe harbor) have some claim against the host. But what claim could a YouTube "subscriber" (really a misnomer, since users don't pay a dime) possibly have against YouTube for removal of a video, whether infringing or not?
I’ll get back to that question in a minute. But first I must mention that YouTube has a three-strikes-and-you’re out policy. It implements 512(i)(1)(A) by suspending accounts of anyone who has had three unanswered DMCA complaints filed against them. As far as I know, if a subscriber files a counternotice, then YouTube will not count that complaint as a strike toward suspension.
Let’s suppose that someone already had two videos removed due to previous DMCA complaints. Let’s further suppose that they received a third complaint and this complaint triggered their account suspension. YouTube’s policy states
A user whose account has been terminated is prohibited from accessing, possessing or creating any other YouTube accounts.
Therefore, someone whose account has been suspended because of a bogus DMCA has lost the right to have a voice on one of the most important sites on the internet. YouTube recognized how important their site was to political speech in their March 31, 2008 blog entry:
We often describe our You Choose '08 platform as "the world's largest town hall" for political discussion.
Moreover, leaders of Congress have expressly stated that they want YouTube to be a venue for constituents to provide input into their decision-making process.
In their January 12, 2009 blog post, YouTube states:
These YouTube channels have the potential to make Congress more transparent and accessible than ever before - but only if citizens continue to connect and engage with their government. Find your Senator and Representative on YouTube and make a connection... and if your elected representative doesn't have a YouTube channel yet, give them a call or an email and encourage them to get started.
YouTube is even asking users for their help in getting their representatives to set up accounts on YouTube so that they can better communicate with their constituents. Watch YouTube’s Steve Grove state that: “Here at YouTube we’re moving beyond politics and into the exciting world of government.”
And in their May 21, 2009 blog post YouTube states:
Our federal leaders and civil servants aren't just on YouTube to distribute video; they're here to engage with you in a way that only YouTube makes possible. So leave your comments, rankings, and ideas for these agencies on any of their videos to ensure that your voice is heard on the issues you care about. Reach out to your local government as well and encourage local officials to start posting footage to YouTube. By exposing everything from committee hearings to planning meetings, we can make our civic lives more open than ever before. Ultimately, it will help us hold public servants accountable for the jobs we've hired them to do.
So YouTube is in a unique position. If you want to address an open letter to Congress in video format and expect to have any chance of being heard, you HAVE to have a YouTube account. Frederic Lardinois of ReadWriteWeb has questioned the propriety of government agencies granting this monopoly to Google/YouTube:
So given this background, would someone who was trying to restore a suspended account by filing a counternotice have a cause of action against YouTube should YouTube ignore the counternotice and not restore their video or their account? Does being the world’s largest town hall for political speech and having a monopoly as a venue for video communication with government officials establish a duty on YouTube’s part to ensure that videos are not unnecessarily removed and that accounts are not wrongfully suspended?
Clearly, the DMCA establishes that Congress would LIKE Youtube (or any other site) to restore videos if they receive a counternotice (assuming the DMCA filer doesn’t tell YouTube that they are taking this to court.) Had Congress not desired video restoration upon counternotice receipt, why did it make immunity from subscriber lawsuit contingent upon video restoration within 10 – 14 days of the counternotice? The fact that Congress would LIKE YouTube to restore videos upon receipt of a counternotice does not in itself provide the subscriber with a cause of action, given that the subscriber has agreed to YouTube’s TOS which states that YouTube can remove any video for any reason. Moreover, the indemnity clause of YouTube’s TOS seems to bar any lawsuit by a subscriber whose video or account was not restored in the aftermath of a counternotice.
So here’s the million dollar question. Would a court enforce YouTube’s indemnity clause or would it decide that the TOS is a contract of adhesion and that barring a lawsuit against YouTube shocks the conscience in light of YouTube’s unique role on the internet? Does it shock the conscience that the victim of a bogus DMCA may be barred for life from voicing her opinion to her government officials on the most important site on the internet? Does failure to restore the video and/or account shock the conscience in light of the fact that the victim of a bogus DMCA has had to give up her right to anonymity when filing the counternotice? What if the video in question was trying to persuade its audience to adopt a particular stance on an important political issue? What if the video had been directed specifically to members of Congress?
These questions are specific to YouTube and do not apply to any other site. Clearly, if someone’s video had been removed from Veoh or LiveLeak they would have no recourse if they filed a counternotice and their video was not restored. But does YouTube’s status as a defacto quasi-governmental agency make it a utility worthy of special rules and regulation?
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