Today something kinda cool happened. One of the greatest videos of Internet history was taken down again, by a YouTube copyright claim. And then it was restored. You've seen it before, but watch it again. Relive the magic.
Of course I'm sure you are all aware by now of the takedown notices we deal with on our Utena videos. Many other content creators deal with this, and many have it much worse than we do. Even on my personal YouTube channel, where I try to post only 100% original content, I had a problem with a recent Netrunner stream. The store we were streaming from had a radio playing, and that got me taken down!
Forget your arguments about whether copyright law is right/wrong for a minute. If we decide we are going to adhere to current copyright law, it is not possible for a rights holder to find and send takedown notices to infringers using only manual labor. The system YouTube has is necessary to keep up with the sheer scale of YouTube. More minutes of video are uploaded per minute than any reasonable number of people could watch. By these measures, the much-maligned automated notice system YouTube has in place is a necessity.
Although the system is a practical necessity for copyright holders, it isn't a legal necessity. YouTube doesn't HAVE to have it. They provide it as a convenience for those rights holders, but also as a convenience to themselves. If they forced people to send notices manually, YouTube would be inundated with so many paper DMCA notices, it would cost them more to handle that then to develop this technological solution.
Now here's the actually not crazy at all idea I just had. According to the DMCA section 512(f)https://www.law.cornell.edu/uscode/text/17/512
(f)Misrepresentations.—Any person who knowingly materially misrepresents under this section—
(1) that material or activity is infringing, or
(2) that material or activity was removed or disabled by mistake or misidentification,
shall be liable for any damages, including costs and attorneys’ fees, incurred by the alleged infringer, by any copyright owner or copyright owner’s authorized licensee, or by a service provider, who is injured by such misrepresentation, as the result of the service provider relying upon such misrepresentation in removing or disabling access to the material or activity claimed to be infringing, or in replacing the removed material or ceasing to disable access to it.
If I translate that to English, basically it means this. If you send a takedown notice, and you know that the notice you are sending is bullshit, then you are liable for damages. In our example Lazy Town video, that is a case where they had already lost a previous takedown fight. Any further notices from the same rights holder against the same content clearly fall under "knowingly materially misrepresenting that material or activity is infringing".
The person with the YouTube account (bless them), and/or YouTube itself, could sue LazyTown Entertainment for damages to compensate for any revenue lost during the time period the video was down, legal fees, etc.
Here's my idea that I don't think is crazy at all. YouTube is providing this automated service as a convenience to make it easier for rightsholders to defend their rights. YouTube could just as easily provide a similar convenient service for content creators that could automatically counter-file against people who send false takedown notices. Provide just as much technology to automate the process of countering false DMCA takedown notices as they do for sending them in the first place.
Just add one more button to the interface. Right next to the one that says "No, this copyright claim is bullshit, my video is fair use" put another one that says "Oh, and whoever sent this, they're full of shit. I want to automatically fight back against them." This would do quite a bit to prevent situations like this. They'll think twice about just sending takedown notices to every single video that comes up as a match for their content, if sending a false one could actually result in costing them some money.