Abuse of DMCA for content licensed under CC BY and recourse There was a video of a county's legislative session posted by their authorized film company posted on YouTube under CC BY. A guy then downloaded it and reposted it on his YouTube channel with attribution. A few days later a representative of company, who made the film changed the licence, took down video on his own channel and contacted the guy who reposted the film and demanded takedown from guy's channel. He refused. Afterwards he sent DMCA and video got removed. Now does the guy have any legal recourse for having to file counter notice and expenses occured or a right to punitive damages? Shouldn't have YouTube prevented a DMCA takedown if content was shared under a CC BY licence? Can he also be sued for something as the guy whose video got taken down had a valid irrevocable licence and the copyright owner was obviously aware of that?
DMCA allows for a counter-notice. You can submit a counter-notice with a statement that you have a licence to distribute the content. Statements in the counter-notice about the facts relating to your permission to reproduce are under penalty of perjury. You could also sue the content owner to attempt to get an injunction against future takedown requests and you could get costs (not punative damages) awarded under 17 USC 512(f).
The question that you need to answer is whether, when you embed, you "copy, reproduce, distribute, transmit, broadcast, display, sell, license, or otherwise exploit any Content". It seems that you have done that, i.e. you didn't just "watch". The next question is whether you have "prior written consent of YouTube". Youtube requires a license from contributors granting users the right to "access your Content through the Service, and to use, reproduce, distribute, display and perform such Content as permitted through the functionality of the Service and under these Terms of Service". To fill the gap, you have to determine whether your act of embedding is permitted by the Youtube TOS. Their TOS states §2A that "The Service" includes the YouTube "Embeddable Player". It also says §4 YouTube hereby grants you permission to access and use the Service as set forth in these Terms of Service, provided that: (A) You agree not to distribute in any medium any part of the Service or the Content without YouTube's prior written authorization, unless YouTube makes available the means for such distribution through functionality offered by the Service (such as the Embeddable Player). On the face of it and as long as you do the stuff that follows in B-I, you have complied with that requirement and therefore you have written permission from Youtube.
Encoding is making an unlicensed derivate or copy Let's say instead of a video file, we take a short story. For the sake of argument, let's take For sale: baby shoes, never worn. We can apply the Cesar-7 Chiffre and get Mvy zhsl: ihif zovlz, ulcly dvyu. Or we use the NVA's TAPIR pattern: 56644 83690 62182 90838 15005 07883 69596 41698 29183 81317 41483 76644 38289 That is obviously nonsense. But all these patterns are at least derivative of the original work. But in fact, they full encode the message, only in a different format, and are reversible. This means we don't just make a derivate, we made a copy, which can be read with the proper means. It is the sole right of the author or rightsholder to license making copies, no matter how they are encoded. Or to rephrase: If it is reversible, it is a copy. If it is not reversible, it is a derivative. Neither is allowed. Subquestions who is liable? The one encoding the file committed copyright infringement for making an unlicensed copy. Period. No way around. The one downloading the file committed copyright infringement by copying the unlicensed copy. No matter if they knew what it was or decoded it, they made a copy of an (encoded) unlicensed copy. Deleting the file btw does not make the copyright infringement go away. can that person make a legitimate argument in court that he just randomly generated the &quot;abstract art&quot; [...] ? That would be perjury. They chucked a whole work into an algorithm. Saying anything else but &quot;I chucked the work into the algorithm&quot; is perjury. Which incidentally can be easily proven if the algorithm is reversible - it will prove the input. is the person who wrote the program [...] make the argument that the program isn't meant to specifically decode copyright material They can, but they are not even on the hook for copyright infringement in the first place. They provide a tool with legitimate uses, such as transmitting messages in a secure way. Encoded files inside other images are for example used by journalists to get files out of oppressive regimes. The liability araises only at the user who uses it illegally. But if so, would it then make a difference if the offline program decodes the file into system RAM only, and not to a file on disk? No. Think about an ISO file. ISO files are 1:1 copies of how a CD is written. They can be burned 1:1 onto a CD without any extra preparation, which is their legitimate use: be easy to distribute and verify copies of for example installation files. ISO files can also be mounted in a virtual CD drive, which emulates a CD drive. If you legitimately got the Windows ISO from Microsoft (or a licensed retailer) directly, you can mount it or burn it, or use it for all legitimate purposes. However, downloading the ISO for a game doesn't change that you made an illegal copy of the game, no matter that you need to mount or burn the ISO to actually access it.
Both. The user made an infringing copy with the upload, the developer did with the download. Further the ToS between the app owner and the user will not protect them from being sued by the owner of the copyright. They don't have any ToS with them.
Any adapted work derived from a work used under a CC-BY-SA licnese must be distributed, if at all, under a compatible license. The question is whether a large work incorporating a much smaller work is said to be "based on" that work. The CC-BY-SA 4.0 legal text does not use "include" or "incorporate" or any similar term to define an adapted work, instead it says: Adapted Material means material subject to Copyright and Similar Rights that is derived from or based upon the Licensed Material and in which the Licensed Material is translated, altered, arranged, transformed, or otherwise modified in a manner requiring permission under the Copyright and Similar Rights held by the Licensor. For purposes of this Public License, where the Licensed Material is a musical work, performance, or sound recording, Adapted Material is always produced where the Licensed Material is synched in timed relation with a moving image. If including a single work makes your book Adapted Materiel, than you must either release the book under the same license, or else not rely on the CC license. I am not at all sure if such use would make the book Adapted Materiel. If the content could be quoted (perhaps only in part) based on fair use or fair dealing or a similar theory, you would not be relaying on the license. But whether such use is legitimate is always a very fact-bound question, which will depend on various specific facts. See Is this copyright infringement? Is it fair use? What if I don&#39;t make any money off it? for a summary of US fair use principles. If the materiel you want to use would not qualify under fair use (or whatever similar principle applies in your jurisdiction), and the book would be considered Adapted Material, then you would have to omit it or put the book under the CC license. I see in The CC case law page the statement that: The atlas was a compilation not a derivative work, so did not need to be licensed under the SA term, Which might apply to your book. If it does, you would not need to place the book under a CC license. Update: On reading CC's detailed wiki page on Drauglis v. Kappa Map Group, LLC I find the statement that Use of a whole work is suggestive of a "compilation" rather than a derivative work subject to the ND/SA terms. attributed to the US District court (DC district) that decided this case in 2014. If that decision were followed, it would seem that the book would not be considered a derivative work and while proper attribution must be provided, and the applicable license must be indicated, the book itself need not be released under CC-BY-SA.
Go to court and find out There is no doubt that humming a tune and recording it (or performing it in public) is a derivative work - a right reserved to the copyright owner. Whether it is fair use depends on the specifics of the case. From the tweet, we simply don’t have enough information, however, at a guess, it is probably not fair use. Fair use in law is Notwithstanding the provisions of sections 17 U.S.C. § 106 and 17 U.S.C. § 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include: the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; the nature of the copyrighted work; the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and the effect of the use upon the potential market for or value of the copyrighted work. The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors. Most people miss “for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research,” - if you aren’t doing one of those things then you start behind the 8-ball when yo move to the 4 factor test. Note that the “criticism, comment, news reporting,” etc. must be about the copyrighted work - I can’t use your copyrighted work to, for example, parody a politician unless you are that politician. Many people have completely the wrong idea about what copyright infringement and fair use actually are, in part because the use of music on YouTube is allowed, not because it’s fair use but, because YouTube was smart enough to negotiate and pay for a permissive licence with music producers. For a full explanation, see this video.
If a website takes down something that infringes on your copyright because of a DMCA request, the legal effect is that you can’t sue the website, only the person who put the content on the website. If a website doesn’t respond to a DMCA request, then you can sue the person responsible AND the website. And that’s what you would have to do: Sue them. And in extreme cases copyright infringement can be criminal; in that case the police might go after the website.
Generally speaking, copyright flows from the end of a pen (or at the A/D converter of a digital recording device). However, owning the copyright to a specific artifact, such as a digital video clip, does not trump all the other rights and claims that may be made regarding the materials captured within that clip. Which means that there are several rights all in play at the same time, and those rights may conflict. The legal term for getting enough rights so that you can do what you want with the rights you own is called "clearance" by those in the industry, and "collective rights management" by Wikipedia (see https://en.wikipedia.org/wiki/Collective_rights_management). The long and short of it is that it is not enough for you to "own" your video clip if you want to use it somehow. Depending on how you want to use it, and your tolerance for risk, you need to get every party who might lay a claim to any copyrighted or trademarked material within your video clip to agree that they are OK with you using it in whatever way you say you want to use it. Sometimes you can ask for, and receive, a "worldwide, perpetual, royalty-free license to use XYZ material in any way, imagined or not yet imagined". Other times, you might have to settle for more limited rights "a performance of the video at the ABC Bar in New York City, on December 31, 2015 only, for a fee of $10,000 paid to XYZ Rights Holding Company," and agree to a whole bunch of other stipulations to boot. There are entire industries that make furniture and automobiles for Hollywood studios so that they don't have to ask for the rights to feature an IKEA kitchen table or a Ford station wagon in a movie. That's how bad/hard the clearance problem can be. If you are lucky (and risk-tolerant), you might only need permissions from the band and the film maker. If you are unlucky or not risk tolerant, you might need permission from every person captured on camera, and from every company that made every item that appear anywhere in the film. Good luck!