You would think that a large university like New York University — better known as NYU — would have decently competent lawyers. Especially since NYU has its very own law school that is frequently one of the top ranked law schools in the country. So it’s a bit surprising to see NYU file a copyright infringement lawsuit against YouTube that seems to, pretty clearly, go against the DMCA’s rules (found via Eric Goldman).
The lawsuit is mainly focused on someone named Jesse Flores, who apparently runs a YouTube account called Atheists Exposed. I think it would be fair to say that Flores does not like atheists, and the summary of that YouTube account my be subtitled "videos of atheists behaving badly." I’m not sure which video in particular upset NYU, but the university submitted a DMCA takedown notice to YouTube, claiming that some of his footage infringed upon its copyright. As I type this, the video in question remains down.
Having suffered through watching at least some of the other videos Flores has on the account, I’m assuming it’s a clip of an atheist somehow associated with NYU, but (you guessed it) behaving badly. This might be embarrassing for NYU, but given the commentary around the videos, there’s at least an argument of fair use here (though, without knowing more, perhaps the fair use claim isn’t strong). Still… it does seem that basically all of the videos on the account are for the purpose of comment and criticism. NYU insists that the video is not fair use, stating that Flores had no license to the work "nor does the Defendant’s use of the Work fall into fair use or any other limitations on exclusive rights of copyright."
Flores, appears to have filed a counternotice on May 3rd — in which he doesn’t even claim fair use. Rather, he says that he received permission to post the video from the Veritas Forum at NYU, saying that it had the rights to the video in question.
NYU then reached out to Flores directly asking him to withdraw the counternotice. Flores, perhaps not too surprisingly, has refused to withdraw it. YouTube has made it clear that it will follow the rules in the DMCA — specifically Section 512(g)(2)(B) and (C) — which say that upon receipt of a valid counternotice (and the lack of a lawsuit filed against the uploader) the site is to replace the removed material in 10 to 14 business days after the counternotice. There are a few conditions around this, but none are that important in this case. There also is some question as to whether or not the site has to replace the content. The statute can be read that way, though some have argued that that’s a weird result, since sites should have free control to refuse to repost any video if they so choose.
Either way, NYU noticed, YouTube took it down, Flores counternoticed, and YouTube has said it’s putting the video back up. Under the very, very, very, very clear language of the DMCA, this means that YouTube is protected from liability if there is any infringement in the video. That’s the whole basis of the safe harbors. They say "if you take down upon notice and follow these other rules, such as reposting it after 10 business days upon counternotice," then you’re protected from a copyright lawsuit.
So, what did NYU do? It sued YouTube (and Flores). The suit against Flores, obviously, will turn on whether (1) he actually received a license, as he implies, or (2) if not, if the use was actually fair (and again, we don’t know enough to say at this point). But including claims against YouTube? That’s not just a non-starter, it’s ridiculous, and makes you wonder if NYU’s lawyers spoke to any of the copyright experts at NYU’s own law school to explain that this is not how the DMCA notice-and-takedown process works. The most generous interpretation of this is that NYU’s lawyers completely misinterpreted the DMCA (and YouTube’s notification to NYU about the counternotice) and read the requirement of a lawsuit to include YouTube, so that the site knew not to put the video back up. What YouTube and the law actually require is merely evidence that a lawsuit was filed against the uploader. Including YouTube in the suit is an interesting way to provide "evidence," but it also goes completely against the DMCA’s safe harbors.
I’m guessing that NYU will file an amended complaint fairly soon that drops YouTube from the complaint. But, still…
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via Techdirt.
NYU Sues YouTube For Reposting Video After Video Poster Sent DMCA Counternotice