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YouTube/DMCA stumper: Can YouTubers whose videos get blocked in 2014 sue YouTube for failing to block pre-2009 infringers?

Los Angeles, CA |

YouTube became more aggressive against video users who include copyrighted music in their uploads in about late 2009. Videos with copyrighted music in them that were posted before the crackdown are still up and running on YouTube with no blocking or other disciplinary action taken. Hello, ex post facto?

I'm curious if 2014 users could launch a successful class action lawsuit vs. YouTube, with major labels involved as co-defendants, claiming damages for tortious interference.

Seems a bit actionable to blatantly select this group over here and block THEIR videos for infringement but allow THAT group OVER THERE to keep their equally infringing videos up on the air, doesn't it then? I'd dare YouTube to explain that one. Millions of examples are available.

Thoughts?

Attorney Answers 3

Posted

Unlikely. Review YouTube terms of service. Contact an Intellectual Property attorney.

My comments have been made without discussion. An attorney client relationship has not been established. There may be conflicts which prohibit my providing you with specific legal guidance. Any contact with you beyond these few general words will start with a disclosure of opposing parties so that a conflict check can be made. You should discuss with an attorney.

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5 comments

Asker

Posted

I'm not an infringer. I'm one of those folks who sits in an armchair in front of my computer, noticing things that seem not quite legal, and wondering about legal questions. This was posted as an academic question seeking a friendly and interesting legal discussion. Thanks for answering.

Asker

Posted

I'm curious what attorneys might think in response to the question. I'm a little of an activist for digital rights and dislike large media corporations. Any trouble the little guy can make for those guys, I am interested in and will alert them to.

Floyd Edwin Ivey

Floyd Edwin Ivey

Posted

Attorneys may have little interest in activitism unless there is a reasonable basis for acting, i.e., without a reasonable likelihood of advancing the attorney and client may face monetary sanctions. The "terms of use" os a social media entity may address their interest in what happened in 2009 v. 2014. But that social media entities interest likely does not give the individuals in 2014 any rights against the individuals from 2009 or what the entity did or did not do to those in 2009. There is probably no grounds for action and hence no means of getting the issue before a court.

Asker

Posted

I'm glad the attorneys for Electronic Freedom Foundation or Oscar Michelin, Esq., do not view this issue the same way! These are lawyers committed not to the corporate pocketbook but strict interpretation of the law. I love watching those guys nail corporate fat cats! Thanks again for responding. The whole thing is interesting.

Asker

Posted

These are the kind of lawyers I mean! Some good reading: https://www.techdirt.com/articles/20130613/11165823451/filmmaker-finally-aims-to-get-court-to-admit-that-happy-birthday-is-public-domain.shtml

Posted

"Ex post facto" is making illegal (or increasing the penalty for) conduct that has already occurred. What YouTube may have done in 2009 under 2009 terms of service probably don't apply to actions under a new set of rules in 2014.
Second, there is the issue of standing. How exactly has the "2014 users" class been hurt by the non-blocking of 2009 videos that allegedly violated someone else's copyright? I don't see it, especially if YouTube changed its terms of service in the meantime.
Under federal law, service providers like Google and YouTube usually have a safe harbor, whereby they are not liable for not taking something down unless someone complains about it. If no one complains about a video, or fails to back up a complaint with evidence, then YouTube has the right to continue posting the video.
Finally, someone who is infringing another's copyright is probably not in a good position to complain that others' infringing content was not taken down. Unless some bias can be proved (e.g., YouTube takes down all videos about one sport, but not for another sport), the argument won't go very far in a court of law.

This answer does not create an attorney-client relationship. It is not legal advice. Please contact a lawyer qualified in your jurisdiction to discuss your situation in confidence, using your factual details. Avvo answers are only general legal responses. Item 9 of Avvo.com's Terms and Conditions are incorporated in this disclaimer as though it were printed here.

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Asker

Posted

Interesting. I like this answer. I'm wondering though, counsel: why are large corporations provided safe harbor and individuals not? How did this concept of safe harbor arise? I can Google that - but if say I wanted to pursue a law degree (which my bf keeps bugging me to) and make this my field of activism, how could I MAKE the argument go far in a court of law? There is always a loophole. ALWAYS.

Asker

Posted

I would be tagged as one of "those" litigators (the kind judges hate, but have to respect, is my hope, if I do indeed pursue law and become a freedom of digital information activist God forbid lol), but my pretty ornery mode of attack would be to prove the alleged infringer actually was damaged by a takedown. Tortious interference would be the very first claim I'd explore. Nuts? Dreaming? I'm loving this conversation with you guys by the way. Much less cynical about the law as a career than JD Underground...

Zachary Strebeck

Zachary Strebeck

Posted

The safe harbor comes directly from the DMCA, and is for Internet Service Providers. It's not limited to "large corporations," but they are the ones that make up the lion's share of the term. However, any blogger would similarly be granted that safe harbor if they register and if they comply with the takedown procedures of the DMCA. See - http://www.law.cornell.edu/uscode/text/17/512

Asker

Posted

Thank you for this link, counsel! I'm reading it today and will contact back here.

Posted

That is hardly a stumper. The statute of limitations is three years, so no suits based on Moe than five year old causes of action are likely DOA. Also, DMCA answers that, and immunized YouTube. That suit would go likely nowhere.

I am not your lawyer and you are not my client. Free advice here is without recourse and any reliance thereupon is at your sole risk. This is done without compensation as a free public service. I am licensed in IL, MO, TX and I am a Reg. Pat. Atty. so advice in any other jurisdiction is strictly general advice and should be confirmed with an attorney licensed in that jurisdiction.

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