Don’t understand the DMCA takedown process on YouTube? A lot of people don’t either and a small YouTuber has taken his frustration to a whole new level by suing YouTube over the process. 

In November 2017, Michael Bauermeister filed a complaint against YouTube in Federal Court, claiming that YouTube “had made it almost impossible for a copyright owner or a [person with] the permission of the copyright owner to file a proper [DMCA takedown] on their website” in violation of 17 U.S.C. § 512. Michael filed the complaint pro se, meaning that he filed the lawsuit without any legal representation….oh boy.

Bauermeister is not new to being frustrated with YouTube. He explained his complaints further in a video titled MY PROBLEMS WITH YOUTUBE!!!!!, which was posted in February 2016.

Michael’s complaint refers to 17 U.S.C. § 512, the section of the Digital Millennium Copyright Act (DMCA) which grants safe harbor protection to service providers operating websites that run on user-generated content. This means that if the typical user uploads an infringing video, the copyright owner cannot go after YouTube for damages.

There are certain requirements that service providers have to meet in order to obtain and comply with safe harbor protections. According to § 512 (c)(1)(A–C), the service provider: A) must not have actual knowledge or be aware of the facts or circumstances of the infringing material; B) must not receive a financial benefit directly attributable to the infringing activity when it has the right and ability to control it; and C) once it is made aware of the infringement, the service provider must move quickly to remove or disable access to the infringing content it was notified of. This is why the DMCA takedown regime is in place- to give copyright holders a way to report specific instances of infringement to YouTube so that it can comply with the DMCA.

On February 2, the Federal Court published its review of Bauermeister’s complaint. While pro se litigants are held to a lower standard when it comes to the sufficiency of their pleadings, courts still expect to be able to dissect the issue and the plea. The Court did, however, analyze the history of § 512 (c) compliance, looking to cases such as Viacom Int’l Inc. v. Youtube wherein the Court held that YouTube was protected under the safe harbor provisions. It then proceeded to analyze Bauermeister’s claims:

“Rather, without any factual allegations, [Bauermeister] claims that YouTube‘s website infringement-notification system gives substandard access to non-commercial copyright holders like him, as compared with commercial copyright holders. Plaintiff has not cited, nor has the court found, any case or statute providing a private right of action for such a claim.

The Court concluded that Bauermeister’s complaint failed to state a claim upon which relief could be granted, meaning that it is not going forward. Bauermeister had not supplied the court with specific information to support his claim that YouTube was willfully blinding itself to the infringement in the context of non-commercial copyright holders. The requirement of pleading a service provider’s knowledge or awareness of specific instances of infringement was also present in the 2013 Viacom case.

Fortunately for Bauermeister, he has one more chance to take on YouTube. The Federal Court gave him the opportunity to file an amended complaint, but he only has until March 5, 2018 to make that happen.  I don’t expect much from this lawsuit

Author, Caroline Womack. Caroline is a 2L at Quinnipiac University School of Law and primarily studies intellectual property law, focusing on video game and internet law.