Generally this should be done under advice of an attorney, because these counter notices set a ticking clock of ten business days during which the copyright holder must either sue the Youtuber for copyright infringement or the complaint will be cancelled. Not all Youtube claims related to copyright are counter claimable. There is a tendency among people to misjudge their actual risk and whether or not they infringed, so it is unwise to file these counter claims without advice from an attorney.
You can also file in your local jurisdiction for declaratory judgment if you receive a formal cease and desist notice, and if that C&D contains false claims then the plaintiff may be in trouble. A truly false and malicious DMCA claim can be countered with a defamation lawsuit as well.
You can also sue someone for any reason ("It's Tuesday! I hate you! I'm suing you!") at any time, but that doesn't mean that you will win.
Using short clips of the trailer for review purposes is clearly fair use. Often times, however, Youtubers think fair use protects them more than it actually does and do go overboard such as taking entire TV episodes and commenting over them. However different judges have seen the issue differently in different situations. So, if you really did infringe, but think you didn't, and file the counter claim, you are doomed, and copyright law is very generous to victorious plaintiffs.
> because these counter notices set a ticking clock of ten business days during which the copyright holder must either sue the Youtuber for copyright infringement or the complaint will be cancelled.
What about damages to the target of the claim? It doesn't seem like there's a penalty for bad-faith claims that wouldn't ever lead to a suit.
Wonder if your claim fell under fair use and it harmed your channel if you could sue for tortious interference? There's some theme park in New Hampshire threatening to go after drone operators even though they don't own the private airspace, however, if it's a business day and full of crowds that a general no no anyways to fly over people.
Be funny if that guy sued CBS in some small town court, I doubt they'd even show up though or argue they don't have jurisdiction over them if no offices there, and I doubt an affiliate would count but maybe. Oh looks like Joe is from Austin, Texas so a pretty big city then, so not sure if CBS has anything other than an affiliate owned by third party company, but I know states in the past said having affiliates create Nexus for sales tax purposes. I was part of a fitness related affiliate program but never made any money with it years ago, and my state created one of those click-through nexuses so the company decided just to kick me out of the program based on the state in my profile.
Then if your tortious interference claim could be valid, and since YouTube has some processes (including automated ones) that side steps and goes well beyond what the DMCA requires, I wonder if YouTube along with CBS also would be opening themself up to additional legal liabilities then.
Be nice if people would stand up to legal bullies more, but sadly the justice and the legal system are not blind as they say and costs to access so it seems like unbalanced powers that favor both the government and corporations over individual citizens.
Youtube in general is not liable for copyright infringement on content posted by users.
People love to talk about standing up to legal bullies, but lawyers are expensive. Copyright law is extremely friendly to plaintiffs and generous in terms of damages: https://www.copyright.gov/title17/92chap5.html
CBS would totally show up in a small town if they knew that they had a good chance of winning. Their lawyers are already on salary. It doesn't cost them anything and they will get a lot of money. They may also just try to get the venue changed. In fact, it is their duty to enforce their copyright claims, or they risk their ability to protect their IP in the future. So, it's unwise to do the equivalent of coating yourself in butter and serving yourself up to be devoured by Viacom IP attorneys.
In the 2019 case of Epic Games, Inc. v. Lucas in which a 14 year old boy counter-claimed a copyright claim filed by Epic over the defendant's posting of Youtube footage involving cheats in Fortnite. While the case did not go all the way, Epic did successfully extract a punitive settlement from the defendant. If he had not counter claimed, the lawsuit might have never happened, or they could have settled it before it was filed.
Unlike trademark, you do not lose your copyright registration for failure to enforce it. However, it makes it a lot easier for prospective defendants if you have a track record of ignoring infringements. Your registration is not in danger, but your ability to win as much as possible might be. Even works with no identifiable copyright owner are not necessarily considered 'abandoned,' which creates a lot of interesting issues, such as in the case of Google Books: https://scholarship.law.duke.edu/cgi/viewcontent.cgi?article...
The main thing with copyright is not like the risk of trademark dilution: it's just that not enforcing it makes it easier for defendants to bargain and argue for lighter penalties.
Sounds like that lawsuit with Epic Games was more about him selling the cheats instead of the videos. Plus I heard people spend real money in Fortnite and can even win real money with the Esports. Don't really follow that game much though.
Perjury, defamation, maybe tortuous interference, depends on the nature of the situation.
Not sure what you mean exactly in your last sentence because of the double negative. They would sue the target of the claim for copyright infringement if they believe that they will win.
A quick note - the 10 day period is for a manual claim, if you get a Content ID claim, it can be up to 30 days for the appeal to move to the DMCA process.
Content ID is essentially just Youtube moderation, whereas the other process is governed by the DMCA. Is that fair or proper...? IMO no but I don't think I know enough about it to say definitively.
Ultimately I think the YT process leaves the door open for legal action by the creator against the claimant.
Presumably most don't bother, because these are big big companies. They can feel secure in their bad faith claims, auto-rejection of appeals, and general abuse of the system to garnish monetization proceeds.
