So My Video Was Removed from YouTube... What Do I Need to Know?
Table Of ContentsShould I dispute it? More resources Why was my video removed?
YouTube generally removes videos for one of three reasons:
1. Terms of Service Violation
2. Content ID Match
3. DMCA Takedown NoticeThe 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 mailbox, so check there as well.
Terms of Service Violation
These removals usually have nothing to do with copyright. Instead, they generally result when the video contains nudity, gratuitous violence, or otherwise violates 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
These are automated removals that result when YouTube's computers spot a "match" between your video and content that has been claimed by a copyright owner. You'll know if your video has been matched because a note will appear next to the video on the "My Videos" page.
In response to pressure from copyright owners, YouTube developed what it calls the "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 copyright owners. 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.
The copyright owner gets to decide what happens when there is a match by setting a "usage policy" — it can elect to Block, Track, or Monetize (i.e., put ads around the video and get a portion of the revenues). For some time, the major music labels have opted for the "Monetize" approach. Unfortunately, Warner Music recently changed its mind, reportedly unhappy with the amount of money it was receiving from YouTube. As a result, Content ID matches for Warner Music songs now result in automated removals. In most cases, no human looks at the videos — YouTube's computers spot the match and apply the "Block" usage policy automatically.
If your video was removed by the Content ID tool, you can submit a "dispute" and get it put back up. This can be done from the "Video ID Matches" page for your videos and requires you to answer a few questions. If you submit a dispute, however, the copyright owner will be notified and will have the opportunity to submit a formal DMCA takedown notice (see below) to get it taken down again. (A copyright owner could also sue you at any stage of this process, whether or not you dispute the removal, but usually it is cheaper and easier for them to send a DMCA takedown notice. 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 copyright owner's attorneys' fees.)
DMCA Takedown Notice
These removals are the result of formal notices of copyright infringement from copyright owners 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 copyright owner, it removes the video. It also puts a "strike" on your YouTube account. 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.
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 copyright owner elects to sue you). Unless the copyright owner 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 copyright owner does sue, your video stays down until the lawsuit is resolved.
Sending a DMCA counter-notice is serious business, as it leaves the copyright owner with few options (other than suing) in order to keep the video down. We recommend that users research copyright law and consult a qualified attorney before sending DMCA counter-notices.
Next we'll discuss information that will help you decide whether to send a dispute or counter-notice.
Should I Submit a Dispute and/or Counter-Notice?
If your video has been removed from YouTube for a copyright-related reason (i.e., a Content ID removal or a DMCA takedown), you have several options to get your video restored. But because taking those steps 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.
Most people who have their videos removed and are interested in getting them restored are looking for the answers to two questions:
- Will I get sued?
- If I were sued, would I win?
Those can be difficult questions to answer, because videos are different, copyright owners are different, and cases are different. These are questions to discuss with a qualified lawyer.
The following is intended to provide general information to U.S. YouTube users who have had their videos removed by a large entertainment industry company (as opposed to individual copyright owners, who may have different, and more idiosyncratic, agendas than those discussed below).
Two Background Facts
Let's start with two facts:
- 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 copyright owner 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.
- As far as we know, no typical YouTube user has ever been 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. But no lawsuits against YouTubers by Hollywood studios or major record labels. 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 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 (yet?) launched a mass lawsuit campaign against YouTubers. Of course, that could change (see, e.g., what the music business has been doing to P2P file sharers).
But Will They Sue Me?
Just because the entertainment industry hasn't sued any typical YouTube users yet, doesn't mean they can't be goaded into doing so. And when you dispute a Content ID removal or send a counter-notice in response to a DMCA takedown, you are tweaking the tiger's tail.
So before you take that step, take a moment and try to put yourself into the shoes the copyright owner that took your video down.
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 copyright owner'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 copyright owner 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 copyright owner 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 copyright owner 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, copyright owners 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 copyright owners 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 copyright owners may want to silence this kind of expression and may be willing to use DMCA takedowns, even if improper, to do so.
When you submit a dispute for a Content ID removal, the copyright owner has three options: (1) let it slide, leaving your video up; (2) sue you; or (3) send a DMCA takedown notice. For copyright owners who object to your video, and want to keep it down, the third path is generally the easiest. By sending a formal DMCA takedown notice to YouTube, the copyright owner can get your video removed again almost immediately, at which point you'll need to decide whether to counter-notice (see below). The takedown notice will also count as a "strike" on your account — after three strikes, YouTube will cancel all of your YouTube accounts and remove all of your videos. This probably explains why DMCA takedown notices are much more common on YouTube than lawsuits against uploaders — they are cheaper and faster for the copyright owner.
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 copyright owner's tail. Sometimes the copyright owner 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 copyright owner really wants the video to stay down, the easiest and cheapest way to accomplish that is to send a DMCA takedown notice. (Of course, the copyight owner always retains the option of suing you.)
Sending a DMCA Counter-notice. Unlike a Content ID removal, if your video was taken down in response to a DMCA takedown notice, it's likely that someone took a look at it before pulling the trigger. That does not mean that your video was watched — some copyright owners may rely on keyword searches to target videos for DMCA takedowns (we don't condone this sloppy practice, but it does explain why perfectly innocent videos are sometimes improperly targeted).
So, unlike a Content ID removal, it is likely that your video was targeted for removal for a particular reason, rather than simply because it matched an audio or video fingerprint in a database. That doesn't mean the copyright owner had a good reason, only that it's likely that it had some reason.
In addition, every DMCA takedown notice that is sent regarding one of your videos counts as a "strike" on your account. If your account accumlates 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 copyright owner with two choices — either allow the video to be restored after 10 business days, or sue you to keep it down (the copyright owner could contact you and ask you do 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 copyright owner does not have a cheap and fast way to keep the video down, short of suing you.
If I 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). There are a few additional things you may want to consider and research further.
Lawsuits are Expensive. Litigation is a very expensive undertaking in our civil justice system. Generally, each side is expected to pay their own legal fees (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 were to prevail against the copyright owner, there is a real possibility that you would be left to foot your own legal bills. Qualified copyright lawyers often charge in excess of $300/hour, and legal costs in even simple copyright cases can exceed $100,000. (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.)
Do I Have a Good Defense? Is my video a fair use? 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:
- the nature of your use (transformative works are more likely to be fair uses, as are noncommercial works);
- the nature of the copyrighted work (you have more fair use leeway with factual works like news stories than purely creative works);
- the amount taken from the copyrighted work (this is both a quantitative and qualitative inquiry); and
- 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 qualitively?
- 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 orginal work?
What if I Lose?
Copyright law provides a prevailing copyright owner with a variety of remedies, including actual damages (how much money did the copyright owner 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 copyright owner 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.
More Resources
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