Why did you remove my content?!
It's not at all our intention to undermine anyone's creative effort, but there are a few things going on here.
First, please keep in mind that we removed your content because we received a valid notification of claimed infringement from the alleged copyright holder for something (maybe a piece of music or footage) in your byte. This means that they are accusing you of using their work in an infringing manner.
("Valid" just means that they have followed the proper procedure and met the legal requirements of a notification, NOT that we believe they are in the right.)
Second, the Digital Millennium Copyright Act ("DMCA") includes an important "safe harbor" protection for online services like ours. Companies that choose to qualify are protected from damages and broad injunctions in copyright lawsuits. A condition of safe harbor is that we process notifications of claimed infringement and either remove or disable access to allegedly infringing content when we receive valid notifications.
Third, we understand that as a byte creator it's extremely not ideal to find an email telling you you're being accused of copyright infringement AND that something you've made has been taken down, losing not only the content but any engagement you had on it. There are a few things we are exploring to make the process hopefully less painful, including the ability to mute the audio on your byte (if the claim only applies to music/sound), or allowing you to replace the content with a revised version. There are a number of implications for these features, though, so please bear with us while we weigh our options.
But I believe my content is protected by fair use. What can I do?
For anyone not familiar with the concept, uses that are "fair" are not infringements. The Copyright Act provides four factors for courts to consider in evaluating whether a use is fair, along with illustrative examples (such as uses for news reporting, commentary, and research.)
Our team absolutely believes in the importance of fair use in a balanced copyright system, but the reality is that it's notoriously tough to define, not to mention that it's an actively ongoing—and rapidly evolving—branch of copyright law. As such, there are no hard rules or best practices (e.g. "the clip in question is only X seconds long, so I'll be fine") that any creator can follow and be 100% immune to claims of infringement.
As a platform that hosts user-generated content, we are not able to make judgments as to whether something constitutes fair use or not. That's the only way we can remain an open and neutral hosting service. Plus, as a small and relatively brand new company, getting buried in lawsuits and spending all of our time and money fighting for individual pieces of content would mean that we couldn't continue to develop this app and community that we love. We may be in a different place someday, but we're not there now.
If you believe that your content is protected by fair use and/or that the notification was delivered in error, there are two things you can do:
- You can always reach out to the claimant (their contact information is in the notification email you received) and ask them to submit a retraction to us.
- You can file a counter notification. The elements of a valid counter notification can be found at subsection g(3) of the DMCA here: https://www.law.cornell.edu/uscode/text/17/512
Once you file one with us, we may choose to restore your content after at least 10 days (subject to our Terms of Service), unless the complainant notifies us that they are seeking an injunction against your infringing activity on our network. At that point, the matter may only be resolvable by a judge in a court of law.
Please note: We do not provide legal advice and you should consult outside counsel on copyright or intellectual property matters.
Should I remove other bytes I've made with unlicensed music or footage?
We can't stop music labels, studios, and copyright agents from scanning our platform for content that uses their material. And while we're unable to tell you whether something you've created is fair use or not, as long as your content contains music or footage that you didn't create or have permission to use, there is a risk of infringement claims.
For the reasons above, if we receive a valid notification, we will remove or disable access to the content, which could add a copyright "strike" against your account. Too many copyright strikes may result in us having to take further action, up to and including the termination of your account.
It won't be a mystery if you're headed in that direction, though. We'll be clear and communicative.
Please note again: We do not provide legal advice and you should consult outside counsel on copyright or intellectual property matters.