YouTube Fights Off Lawsuit Over ‘Retaliatory’ Copyright Strikes

[NelsonG]

For many content creators of YouTube, copyright strikes are a major problem.

When users receive three ‘strikes’, YouTube can remove all videos, take down the channel permanently, and prevent the creator from making any new ones.

This is a significant threat for those who make a decent living off the video platform including Erik Mishiyev, aka DJ Short-E, who ran two popular YouTube channels totaling over 250,000 subscribers.

This achievement earned him a “Silver Creator Award” and generated $310,000 in revenue over a period of five years. However, Mishiyev’s relationship with the video platform was far from rosy.

Despite having over a quarter million subscribers, the DJ felt that the views of his videos were low when compared to similar channels. When some subscribers informed him that they received no alerts for new uploads, Mishiyev contacted YouTube support.

This inquiry didn’t go well and ultimately resulted in the creator supposedly threatening to take legal action against the video giant. Soon after that happened, he reported being bombarded by copyright takedowns and strikes, which effectively shut down his channels.

Mishiyev believes that these takedowns were retaliation for his legal threats. And when YouTube chose not to accept his DMCA counter-notices – which he sent in an attempt to get rid of the strikes – he took YouTube to court.

In a complaint filed at a federal court in California last summer, the YouTuber demanded $720,000 in compensation for lost income, among other things. In addition, he wanted to prevent YouTube from ever banning him again.

At the center of the lawsuit is a breach of contract claim. Mishiyev argued that YouTube failed to live up to its duties as it failed to process his DMCA counter-notices, a point contested by the video giant.

In a response filed a few weeks ago, YouTube noted that its Terms of Service allows the company to remove any content “without prior notice” and “in its sole discretion.” This agreement allows the company not to restore a video following a copyright claim, even when it is challenged.

“YouTube has no obligation to ever restore that material to its service, even when a user protests, and the agreement expressly highlights its discretion not to do so,” YouTube informed the court.

In other words, YouTube doesn’t have to restore content after it receives a counter-notice. It can simply ignore it, based on the agreed terms of service.

This is also the conclusion reached by the court. In an order released last month, US District Court Judge William Alsup notes that users are given the opportunity to submit counter-notifications but Google is not required to act on them.

“[O]nce a user submitted a counter-notice, the agreement reserved to YouTube’s sole discretion the decision to take any further action, including whether to restore the videos or even to send the counternotice to the purported copyright owner,” Judge Alsup wrote.

“Thus, YouTube did not agree to act as a neutral processor of notices and counter-notices. YouTube retained control to evaluate counter-notices and infringement on its own.”

Mishiyev didn’t go into detail on what grounds the notices were inaccurate. The main claim was that the videos were ‘struck’ by YouTube as retaliation. However, even if that’s true, YouTube is still not in the wrong for terminating the account.

“Even taking the retaliation allegations as true, however, the complaint fails to overcome YouTube’s express right to terminate plaintiff’s account for repeat copyright infringement,” Judge Alsup notes.

Based on these and several other arguments, the Judge granted YouTube’s request to dismiss the complaint. While that’s good news for the video service, the legal battle isn’t completely over yet.

As highlighted by Reclaim The Net, Mishiyev, aka DJ Short-E, has appealed the decision at the 9th Circuit Court of Appeals

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Here is a copy of US District Court Judge William Alsup’s order to dismiss Mishiyev’s complaint against YouTube..

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