YouTube Sued for Allegedly Inadequate DMCA Repeat-Infringer Policy

On Thursday, Business Casual Holdings LLC filed a complaint in the Southern District of New York against YouTube LLC, Google LLC, and Alphabet Inc. for their allegedly inadequate repeat-infringer policy as required by law.

According to the complaint, the defendants failed “to maintain and reasonably implement a repeat-infringer policy as required by the Digital Millennium Copyright Act (‘DMCA’).” The plaintiff averred that, in order to qualify for safe harbor protections under the DMCA, a service provider such as YouTube must meet certain criteria. For example, §512 of the DMCA “includes a requirement that a service provider seeking shelter in the DMCA’s safe harbor provision must have ‘adopted and reasonably implemented … a policy that provides for the termination in appropriate circumstances of subscribers and account holders of the service provider’s system or network who are repeat infringers.”

Business Casual Holdings noted that YouTube’s repeat-infringer policy as published on its website states that “if a copyright owner submits a valid DMCA complaint through our webform, we take down that video and apply a copyright strike. If a user gets three copyright strikes in 90 days, their account, along with any associated channels will be terminated.”

The plaintiff asserted that YouTube “knowingly enables repeat infringers that exploit YouTube’s repeat-infringer policy to avoid termination by submitting frivolous counter notifications.” Specifically, the plaintiff argued that repeat infringers can submit counter notifications in bad faith under YouTube’s policy in order to avoid the termination of their channels. Additionally, the plaintiff claimed that YouTube benefits from not enforcing its repeat-infringer policy by allowing “repeat infringers to enjoy unrestricted access to YouTube’s Partner Program”; this program allows users to monetize their YouTube channel, with YouTube users receiving 55% of the revenue and YouTube and the other defendants receiving 45% of the revenue. Consequently, Business Casual Holdings claimed that the defendants have not adopted nor reasonably implemented a repeat-infringer policy pursuant to the DMCA.

As an example, Business Casual Holdings published original documentary videos about Rockefeller and J.P. Morgan in 2018 and 2020, respectively, and received copyrights for these videos in March 2021. In January 2021, the plaintiff submitted a DMCA takedown request to YouTube regarding a video posted by third-party TV-Novosti, which “illegally copied from Plaintiff’s J.P. Morgan Video.” About a week later, YouTube removed the infringing video and applied a copyright strike to the third party’s other YouTube channels. A representative from tTV-Novosti sent the plaintiff two emails that “admitted it had copied from Business Casual’s copyrighted J.P. Morgan Video without Plaintiff’s prior permission and submitted a DMCA counter notification to YouTube ‘by mistake.’” According to the plaintiff, YouTube then notified the plaintiff that the repeat infringer retracted its DMCA counter notification. The plaintiff then purportedly sent a DMCA takedown request to YouTube regarding a second video that TV-Novosti posted that copied the Rockefeller Video; this repeated for a third infringing video, which was livestreamed on another channel of the repeat infringer. The repeat infringer purportedly filed counter-notifications.

After this process, YouTube removed the second infringing video and applied the third copyright strike to the repeat infringer’s channels. The plaintiff filed a copyright infringement suit against the repeat infringer. The plaintiff claimed that TV-Novosti submitted its counter-notifications “knowing that they contained material misrepresentations” and violated the DMCA. The plaintiff argued that the repeat infringer acted in bad faith and in disregard to the plaintiff’s copyrights by adding its own watermark and “altering the brightness and saturation of each of its infringing videos to, upon information and belief, circumvent YouTube’s automated Content ID and Copyright Match Tools to avoid getting caught doing what it knew was unlawful.” The plaintiff averred that as a result, YouTube’s repeat-infringer policy is not reasonably implemented.

The claims for relief are for copyright infringement, contributory copyright infringement, and vicarious copyright infringement.

The plaintiff seeks an order terminating the repeat infringer’s associated YouTube channels, to permanently enjoin and restrain the defendants from further infringement; declaratory judgment in its favor; an award for damages, costs, and fees; and other relief.

Business Casual Holdings is represented by Duff Law PLLC.