Odd DMCA Circumstance

[JDo]

This question only pertains to federal law.

I've recently come upon an interesting legal circumstance on YouTube. I'll try to explain in a way that is understandable.

A German national contacted a US-based service provider (YouTube) making a copyright claim against a video pursuant to DMCA

The channel upon which this video was uploaded is operated by an Australian national.

The copyright interest allegedly infringed is not registered with the US Copyright Office.

The use of the allegedly infringing material is clearly fair use.

It would appear under the circumstances the complainant in this case is submitting DMCA Copyright claims in bad faith.

Section 512(f) of the DMCA appears to offer relief in the case of bad faith or fraudulent copyright claims made pursuant to the DMCA.

So three questions: 1) Being that the complainant and the alleged infringer are foreign nationals in relation to the United States does the DMCA have any force of law in this case?
2) Could a US court have jurisdiction to litigate either a case for copyright infringement or relief under section 512(f) between two foreign nationals?
3) Is it legal to submit a DMCA claim when the complainant has no registered copyright?

Thank you all for your input.

 

[quincy]

This question only pertains to federal law.

I've recently come upon an interesting legal circumstance on YouTube. I'll try to explain in a way that is understandable.

A German national contacted a US-based service provider (YouTube) making a copyright claim against a video pursuant to DMCA

The channel upon which this video was uploaded is operated by an Australian national.

The copyright interest allegedly infringed is not registered with the US Copyright Office.

The use of the allegedly infringing material is clearly fair use.

It would appear under the circumstances the complainant in this case is submitting DMCA Copyright claims in bad faith.

Section 512(f) of the DMCA appears to offer relief in the case of bad faith or fraudulent copyright claims made pursuant to the DMCA.

So three questions: 1) Being that the complainant and the alleged infringer are foreign nationals in relation to the United States does the DMCA have any force of law in this case?
2) Could a US court have jurisdiction to litigate either a case for copyright infringement or relief under section 512(f) between two foreign nationals?
3) Is it legal to submit a DMCA claim when the complainant has no registered copyright?

Thank you all for your input.

What is the name of your state?

Are you the copyright holder or the one whose video was pulled from YouTube for allegedly infringing on a German copyright?

You do not have to be a US resident to file a DMCA takedown notice.

 

[JDo]

What is the name of your state?

Are you the copyright holder or the one whose video was pulled from YouTube for allegedly infringing on a German copyright?

You do not have to be a US resident to file a DMCA takedown notice.

My state of residence is Florida. I am neither the copyright holder nor the one whose video has been removed, I'm merely interested in understanding if there is any case law or knowledge anyone has pertaining to this subject that I could further research.

Thanks.

 

[quincy]

My state of residence is Florida. I am neither the copyright holder nor the one whose video has been removed, I'm merely interested in understanding if there is any case law or knowledge anyone has pertaining to this subject that I could further research.

Thanks.

Ah, just a curious sort, huh?

The Digital Millennium Copyright Act (DMCA) is a federal statute that addresses an assortment of internet copyright issues. The best known part of the Act is the DMCA takedown notice and procedure which provides an Internet Service Provider with a "safe haven" from infringement claims if the ISP acts to remove infringing content upon notification by a copyright holder. The copyright holder files a notice identifying the infringing content and its location online, the ISP promptly removes the infringing content and notifies the publisher of the ISP's receipt of the DMCA notice. The publisher of the allegedly infringing material can respond to the notice by filing a counter-notice, claiming what is published does not infringe on any rights or the publisher can let the matter drop and hope they are not sued for infringement anyway. If a counter-notice is filed, the copyright holder must file suit against their infringer or the material will be returned to its place online.

If the copyright holder filing the takedown notice with a US ISP resides in a country other than the US, the copyright holder must sue their infringer in the country where the infringer lives for an infringement suit to be effective. So, if the German copyright holder files a takedown notice to have his infringed YouTube video removed from its place online and YouTube removes the infringed video, and the infringer resides in Australia, the German copyright holder must decide if he wants to sue the infringer in Australia under Australian copyright laws. The DMCA takedown notice only works to remove the content.

There is a growing body of case law that you can research online. You might want to try "Google Scholar" to locate some in the areas of interest to you. Good luck with your research.

 

[FlyingRon]

Quincy gives a good exposition on the DMCA. Let me add a few things.

1. Google/YouTube is permitted to use their discretion in removing videos even if you have a LEGAL RIGHT to copy or disseminate them. Just because you counter the DMCA takedown doesn't meant they'll put your video back.

2. Registration with the US Copyright office isn't even necessary for US entities. International treaty (as codified into US law) doesn't require foreign works to be registered here. As long as they are protected by copyright in Germany, they are protected in the US by law (both being signatories of Berne). Obviously US registration has squat to do with actions in Australia or Germany.

3. Fair use is a defense to an infringement action in court. It's not necessarily a legitimate counterclaim in a DMCA action. Fair use varies between US, Australian law, and what Berne defines for interational conventions. Absent knowing what you are talking about, it's not "clearly fair use."

 

[quincy]

Nice additions, FlyingRon. You covered well what I neglected to cover in JDo's post.