Tuesday, September 14, 2010

ArchieWhambulance and the DMCA *sigh*

ArchieWhambulance has made many videos in the past where he makes himself look like an ass but even I have to admit he usually does not upload content this FacepalmWorthy. Well today he did. The Youtube partner who once told me that he does not just make videos about ShaneDawson or iJustine uploaded a video today with ShaneDawson right in the title, even though the video only briefly mentioned ShaneDawson.

ArchieWhambulance first off does not understand the difference between flagging and a DMCA as he used the terms interchangably. Archie, a flag is when someone hits the flag button and the video is reviewed by YouTube for terms of service violations. The video is screened via a thumbnail generator similar to the one you see in the video uploader. Thus they can review a video in a matter of seconds. A DMCA is when someone claims a copyright infringement on your video and youtube takes it down.

Now I would like to point out that this is the 3rd DMCA that RWJ has gotten that I know of. However, every video he has since gotten back. In my opinion RWJ is on the edge of the fair use defense and if he were ever taken to court I think he would lose. However as far as YouTube is concerned, they have to take down a video upon receipt of a DMCA claim, and they have to put it back up upon receipt of a counter-claim.

After that, it is up to the original claimant to file suit seeking financial damages. Based on how much money I make on a video, I can assume that RWJ makes a few thousand from each video. Thus someone could take him to small claims court if they wished.

However YouTube does not have in place a protection for their superstars. Failblog has been suspended 3 times for copyright violations. Failblog of course is clear cut copyright infringement, no fair use defense is even possible, but they have the money to have the good lawyers. Failblog is run by the same guys who run Icanhazacheezeburger and a slew of other popular websites.

Smosh was suspended back in 2008, Nigahiga was suspended for copyright, They do take down videos for copyright infringement even against the bigger superstars. Now it is much harder to file a DMCA than it used to be, and this is due to the abuse of the DMCA. Right now, when filing a DMCA you have to provide proof to youtube that the video is yours and you have to provide a URL to your video. Or otherwise prove that it came from you. Now this is not to say that false DMCA's dont get through. On the contrary, they still do. I routinely DMCA myself just to stay aware of the changes because people often contact me for help with the counter-notice.

Out of 3 DMCA's I filed against myself two were rejected. Only one was sucessful and I have since gotten my video re-instated. Will RWJ be able to get his video back. Yes, he did it before. All he has to do is claim fair use. Is his video fair use, no I do not think that it is, but that is not for me or you to decide. It is not even for youtube to decide. Fair use is a defense you can claim in court. If they do decide to take him to court, they should be able to get awarded a cut of the profits he made from the video.

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