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Copyright questions concerning video deletion requests

 On April 1st, 2013, PCF Support changed the initial post of the Removing subtitles or videos  thread on this forum. As the hypothesis of an April Fool's joke can apparently be discarded, the part concerning the video deletion requests of the new  version raises important copyright issues.

Old version (archived in on Nov. 12, 2012) :

"... if it doesn't affect other users, we could help you to take a video down (...) To request to delete a Video.

  1. Label as Delete Video
  2. URL for the video's location in Amara.
  3. Your Username
  4. reason for taking down the video"

New version:

"...if you're the content owner and your video has been added to Amara and you'd like it removed, please submit a DMCA takedown request (see section 7 of Amara's Terms of Service) and we'll remove the video."

So let's examine the copyright part of these Terms of Service.

What videos may be added to / subtitled with Amara?

Section "5. Your Content and Conduct" of the Terms of Service says: 

"You affirm, represent, and warrant that you own or have the necessary licenses, rights, consents, and permissions to publish Content you submit;"

An important proportion of Amara videos has been created by people who are not the owners of the original video, on the assumption that if the video can be streamed to create an Amara video page, the publishers agree to that streaming: if they didn't, they could have disabled it. This interpretation seems confirmed by the fact that in the 2 teams where I am admin - Captions Requested  and Music Captioning  - the team owners and admins comprise Amara Staff members who have never objected to the fact that most of the videos added are added by people who are not content owners.

Nevertheless, that's a gray zone. And making subtitles using Amara for thusly streamed videos owned by others is an even shadier zone, because subtitles are  derivative work, and most copyright laws say that you must have the permission of the original right holder for that. But again, the Amara Staff owners/admins of Caption Requested and Music Captioning have never objected to team members' subtitling these streamed videos owned by others. 

So far the rule of thumb I (and I believe, many other Amara users) have applied is: if a video can be streamed, then it may be added to Amara, and it may possibly also be subtitled there under a Fair Use copyright restriction, as - at least for the same-language captions - this enables deaf people to access its content. If a right-owner should disagree, then s/he can ask for deletions, and tough titty for our work. But now that Amara has given new prominence to that DMCA takedown procedure, Amara staff should clarify what videos we may add to / subtitle with the Amara software.

Will DMCA takedown requests from owners of synced-to-YouTube videos be granted?

The already quoted new indications of the Removing subtitles or videos  thread say that a DMCA takedown request for a given video can be made by the right-holder "if [they]'d like it removed", according to section 7 of Amara's Terms of Service.

But what about videos that were added to Amara by right-holders who synced their YouTube accounts to Amara, e.g. without realizing that the syncing would not only involve their public YouTube videos, but all of them?

In European countries e.g., copyright laws would still give authors and their representatives the right to request the removal of the Amara videos created by this syncing, because these laws define the authors' right to decide where and when their works should be published as a moral right, stronger than other copyright rights.

But that I know of, US copyright law does not have that "moral rights" concept - and as the Terms of Service say, they are governed "by the internal substantive laws of the State of Massachusetts".

And the Amara Terms of Service also say:

" submitting Content to Amara, you hereby grant Amara a worldwide, non-exclusive, royalty-free, license to use, reproduce, distribute, prepare derivative works of, display, and transmit the Content in connection with the Service and Amara (and its successors’ and affiliates’) business, including without limitation for promoting and redistributing part or all of the Service (and derivative works thereof) in any formats and through any media channels."

So Amara could argue that by granting Amara the permissions to manage their YouTube accounts required for this syncing, the right owners did grant Amara that worldwide etc. license. I.e. for instance that they have authorized Amara to make their unlisted videos indexable by search engines. Or even to make their private videos public in order to stream them to Amara, with the same result, in theory - and in practice?. And thus Amara could deny  takedown requests for videos that have been synced to Amara by the right holder.

Will Amara do that, though, even if they could? It wouldn't look too good, considering how they  vaunted urbi et orbi the benefits of crowdsourcing subtitles via this syncing at the beginning of February, but never clarified the exact concrete implications of the entailed

"permission to:

  • Manage your YouTube account
  • View and manage your videos and playlists
  • View and manage your YouTube activity
  • Perform these operations when I'm not using the application"

YouTube channel owners may well have thought that this permission request was so crazily wide that Amara wasn't meaning to actually do all these things.

If DMCA synced-to-YouTube-based takedown requests are granted, what will happen to Amara subtitles already made for them?

While the former version  of the deletion request procedure specified that the request would only be granted "if it doesn't affect other users", there is nothing about that in the new version.

Moreover, presently, nothing enables other Amara users to tell apart a video humanly added to Amara from one added by automatic syncing to a YouTube account, in spite of requests that the latter be clearly marked as such (1). Therefore people might well start subtitling synced-to-YouTube videos, believing they are doing so under the license granted to all Amara users per "5. Your Content and Conduct" of the Terms of Service  ("You also hereby grant each user of the Service a non-exclusive license to improve your Content through the Service by editing and/or translating your Content.")

So, if DMCA synced-to-YouTube-based takedown requests are granted, what will happen to those Amara subtitles already made for the concerned videos? Will they simply disappear too, or will Amara first tell involved subtitlers to download their work in order to be able to reuse it somewhere else (2)?

This is not an idle academic question: in the Removing subtitles or videos  thread, several requests concern synced-to-Youtube Amara pages, one of which (presently on p. 5 of the thread) involves "4'800+" videos. And that's only for requests by syncers-to-YouTube who have been using that thread.

What of video deletion requests made prior to April 1st, 2013?

When PCF Support made the DMCA takedown procedure the only way to request the deletion of a video on April 1st, 2013, there were many deletion requests made under the previous conditions,  pending - including the already mentioned one involving "4'800+" videos. Will they be dealt with according to these previous conditions? And if not, will Amara notify all concerned requirers that they have to make a DMCA takedown request?

Thank you in advance for your replies


(1) See "What I wish Amara would do (...) 2. Automatically add something to the Amara pages that are synced to original YouTube videos, which says they are thus synced. " in my  Dec 24, 2012 Misgivings about the "Sync subtitles" feature (Account page)  post and my January 26, 2013 reply to Jules Rincón in the same thread: "...this makes it all the more important to mark the syncing to youtube in the Amara video, with a brief (or a longer linked) explanation as to the consequences"

(2) E.g. if a teacher had made subtitles for an Amara video that gets deleted as a result of a granted DMCA synced-to-YouTube-based takedown request but had downloaded the subs, s/he would still be able to show subtitled video to his/her students by streaming the original video to and adding to it the subtitle file.

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