Bogus manual claims & the implied covenant of good faith and fair dealing?

Acerthorn

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You are required to consider fair use before you issue a DMCA Takedown Notice. This is fairly well established precedent (or at least, as clearly established as it can be, considering that the problem this precedent seeks to rectify is less than a decade old). However, with copyright claims (or simply "claims" for short), it is not uncommon for claimants to manually uphold claims on videos that are very strong cases (if not outright slam dunks) for fair use.

You could make the argument that, since the claims are not governed by the DMCA, but are instead the product of a system entirely set up by and administered by Youtube, then they are not legally required to consider fair use when upholding these claims.

However, I disagree. Just because there hasn't been any hard precedent on the books, I believe there is a case to be made for saying that claimants are required to consider fair use when manually placing or upholding a copyright claim, to the same extent they would be required to consider fair use prior to issuing a DMCA Takedown under otherwise identical circumstances. The legal basis on which I make this theory is the common law doctrine known as the "implied covenant of good faith and fair dealing" (or simply "the covenant) for short), which you can read about here: https://www.law.cornell.edu/wex/implied_covenant_of_good_faith_and_fair_dealing

As you can see from that description, the covenant would obviously require claimants to exercise "good faith" when issuing manual claims (automatic claims would obviously be exempt from this). So if they place a claim on a video, thereby interfering with the channel owner's ability to monetize that video), they should be required, per the covenant, to consider fair use to the same extent they would be required to consider fair use before issuing a DMCA Takedown under otherwise identical circumstances. If they interfere with the channel owner's livelihood without considering fair use, to the same extent that said lack of consideration would constitute a violation of 17 USC §512(f) if this were a DMCA Takedown rather than a copyright claim, then they should be liable to the channel owner for the common law tort of "interference with a business expectancy."

Obviously, if faced with such a lawsuit, the claimant would no doubt argue that they are not required to consider fair use whenever they are merely issuing a claim rather than a takedown. But on what basis do they make that assertion? Just the mere fact that there hasn't yet been a clear and unambiguous ruling by a precedent-setting court? Corporations do not have qualified immunity!

Did the channel owner waive his right to have fair use considered? I highly doubt it. While we do agree to be subject to the copyright claim system whenever we sign up to have a youtube channel, there is no language in either contract (both the Youtube Terms of Service and the YPP agreement) stating, or even implying, that we lose the right to monetize fair use videos under the copyright claim system. Not only that, but the parole evidence overwhelmingly suggests that no, Youtube did NOT intend for us to lose our right to monetize fair use videos! This is due to the fact that Youtube actively provides us with the tools to contest copyright claims on the grounds of fair use. Fair use is one of the top 3 reasons we can select for why a copyright claim is invalid, and when we appeal the upholding of a claim, youtube even takes it a step further and provides us with four separate text boxes where we can argue each of the four factors of fair use independently of one another. Then, there's the fact that Youtube has repeatedly published videos such as this one ...


... where Youtube unambiguously claims that they allow fair use, and that they do indeed fight against bogus copyright claims. Granted, they offer absolutely no evidence of this aside from their uncorroborated word, but their uncorroborated word is good enough in this case to establish that we (the channel owners) have not signed away any fair use rights whenever we signed up for the copyright claim system.

So what about the claimants' contract with Youtube? Does that contract provide the claimant with any greater latitude than what the law requires? Well, without having a copy of their contract in front of me, I can't know for sure. However, even if the contract does explicitly state that the claimant is not required to consider fair use (and it's worth emphasizing that nothing short of an explicit, unambiguous, and unequivocal declaration to this effect would give them even so much as a toe to stand on, let alone a whole leg), it still wouldn't save them from liability if the content creator were to sue them. If they have that contract with youtube, then it is for them to sort out with yotuube. A third party is under no obligation to honor a contract between two other parties that they never agreed to. The only way we could become legally bound by that contract is if we entered into a contractual obligation with Youtube to honor it, and as I just demonstrated, that hasn't happened.

Last but not least, we have one small problem: In many cases, the compensatory damages in this case are simply too small to make it worth pursuing in court. This is especially true ever since Youtube introduced its "esgrow" system to the claims, where disputed ad revenue was held in esgrow and given to the winning party after the dispute was resolved. This means that the most obvious source of compensatory damages - the loss of ad revenue - is literally $0.

However, we must remember that we never entered into any contractual relationship with any of the claimants, at least not directly! This means there is no arbitration agreement and (more importantly in the instant case) no class action waiver! There is nothing stopping us from finding a copyright claimant such as Exploration Group, getting about five to six hundred youtube channels to band together, and sue their sorry asses for failing to consider fair use. Collectively, the class action can make the case financially worth pursuing, and without a class action waiver, there's nothing the claimants can do about it!

So what do you guys think? Should we get a class action lawsuit going?
 
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