Written by attorney Kerry Blasingim

Copyright 101: Does Youtube Violate My First Amendment Rights by Taking Down My Videos?

On any given day, I see between 10 and 20 people complaining about Youtube’s policy for dealing with DMCA take-down notices. The other day, I saw a piece on the efforts of a video creator whose work – used as the US Copyright Office’s example of a successful fair use parody – was taken down by Youtube after a DMCA notice was issued by the holder of the rights in the underlying work. To be blunt, I think what’s going on here is despicable, but I have an unfortunate truth to reveal:

This is not a violation of your First Amendment rights. It is not a violation of any right you possess as a citizen of the United States. Which is exactly why companies are using the DMCA to censor social media and video sites particularly where they know the content is not copyright infringement.

Wait, you say – how can this not be a violation of the First Amendment? Youtube is taking away our ability to have free speech! They’re taking down our adorable cat videos for having popular music in the background! (But seriously – remember the one of the kid dancing to the Prince song? Taken down)

It all turns on how the First Amendment – actually, how almost all of the Constitution and its Amendments – function. They weren’t meant to force us to play nice with one another; they were meant to keep the dogs of a mad government from kicking in our doors to force us to do and say as they please. They are a reaction to the stranglehold that the Medieval churches and states had over free thought, expression, and action in Old World Europe.

They are your insurance against the day when the government finds the things you do or say to be an inconvenience – for example, the Supreme Court was forced to hold for the Phelps family against Snyder because the First Amendment prohibits the government from punishing even the most hateful of citizens merely for speaking their minds.

What I’m saying here is that the First Amendment does not protect you from the private actions of other private citizens. So long as the government is not forcing Youtube to take down your video, Youtube has not violated the First Amendment by refusing to publish the content you have produced. You have a right to speech, not publication. The Constitution only comes into play when the federal or state governments are dictating the actions of private citizens. Here, they are not.

This is exactly why companies like Sony and Universal are abusing the DMCA take-down process – even if what they’re doing is wrong, they aren’t violating any right or contract under which anyone can sue them for their actions. Moreover, the terms of service that you didn’t read when you created your Youtube account almost certainly absolve Youtube of any liability for taking down your work pursuant to a DMCA request. So, no one here has any incentive to take the side of the small creators. If Youtube (and other ISPs) were equally free of liaiblity to the major content producers, we would have the internet detente that was the order of the day in the 90s.

The DMCA, however, has changed this landscape completely.

The DMCA, at its heart, is Congress saying that internet piracy has gone plenty far enough but that it is impossible to hold big ISPs like AOL and Youtube and such responsible for checking every piece of content they publish. Instead, the DMCA gives ISPs a trade-off: no liability for infringement so long as they do not actively promote or participate in that infringement, in exchange for taking down infringing content when copyright holders notify them via a take-down notice.

In theory, this is a great system – the internet runs free, but content owners can send notices to ISPs when they find infringing works out there in the wild and the ISPs will evaluate and, if necessary, remove that content. Unfortunately, the system does not work as well when the ISPs receive huge numbers of requests each day (Google apparently gets 2.5 million a week) and do not possess the manpower or technology to adequately review the fair use merits of any particular claim. Absent an army of copyright lawyers, how is Youtube to deal with all of the claims of infringement and counterclaims of fair use? So far, it has used the DMCA process to avoid the matter altogether by instituting a policy that forces the two sides to deal with one another instead of with Youtube.

So, since you can’t expect Youtube to evaluate your fair use defense and determine whether your content should be legal to publish, what can you do? You can use the counter-notice system to try to force the issuer of the DMCA notice to sue you, but that will involve jumping through a bunch of hoops and having your content up and down for weeks – at which point the copyright holders often seem to drop the video infringement claim and start from scratch with the audio. If you were feeling particularly aggressive, you might file for a declaratory judgment that the content was non-infringing. Other than those two choices, though, you’re pretty much out of luck – the DMCA has no provision to punish companies for intentionally misusing the takedown notice system or for requiring ISPs to deal with fair use claims.

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