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YouTube does not restore all videos after successful DMCA counter-claims

Here's how the process is supposed to work: You post a video on YouTube. A rights-holder takes offense to, say, the music you're using and issues a DMCA ("Digital Millennium Copyright Act") notice to have your work removed from the site. You submit a counter-claim to argue that your video falls under fair use protections. You wait to find out whether the original copyright notice submitter plans to sue you to block your video once again. If not, your video goes back online.

But that's not always going to be the case.

Even if a user goes through a successful counter-claim round in response to a DMCA notice, there are certain kinds of videos that YouTube isn't going to restore, period. The issue relates to the various contracts that YouTube has signed with certain music copyright holders, which YouTube uses to toss certain videos into a "special exceptions" category for the whole DMCA/counter-claim process.

"…some of these music copyright owners require us to handle videos containing their sound recordings and/or musical works in ways that differ from the usual processes on YouTube. Under these contracts, we may be required to remove specific videos from the site, block specific videos in certain territories, or prevent specific videos from being reinstated after a counter notification. In some instances, this may mean the Content ID appeals and/or counter notification processes will not be available. Your account will not be penalized at this time," reads an updated post on YouTube's support site.

Of course, YouTube is happy to provide those subjected to this alternate process the contact information for the copyright-claiming companies, in case a user wants to take up the issue with the company itself – likely not to a positive resolution, we guess.

Legally, YouTube's policy appears to be in the clear, as service providers are seemingly under no obligation to restore content following a DMCA counter-claim. Although the official language describing the counter-claim portion of the DMCA seems to suggest the opposite – "unless the copyright owner files an action seeking a court order against the subscriber, the service provider must put the material back up within 10-14 business days after receiving the counter notification." – it stands to reason that individual providers can still choose to limit content on their sites however they see fit.

For example, it's not as if a DMCA counter-claim could be used to force YouTube into hosting pornographic videos on the site.

Nevertheless, YouTube's decision to remove videos at the request of rights-holders – even if the videos themselves are legally in the clear – does leave a few sour.

"While we obviously don't know the details of the [Universal Music Group] contract, fair use rights cannot be signed away, especially by two third parties. It would be a shame if YouTube decided that it would arbitrarily give UMG the ability to deny someone's fair use rights in posting a video," writes TechDirt's Mike Masnick.