I'd say this DMCA Fag Force will have more money than you will to fight this battle.
But do they have the legal grounds to do so...? We're getting ahead of ourselves because the entire basis of this discussion is all fantasy that won't happen.
Plain and simple: at most he goes to a lawyer, but only with the intent of having them draft up a letter for Youtube demanding a response on his case and an explanation how his video is not fair use, otherwise demanding they reverse the decision. Burden of proof is on Youtube to state why he violated fair use if he's disputing it.
It's very easy to point at hundreds of other channels that play other people's content in full, but criticize and comment over it the entire time, and those people gain revenue for what they do. A single existence of someone doing so and gaining revenue means all similar cases deserve the same. The standard needs to be equal for everyone. If they feel his case is "special," they need to outline why.
If she has no claim, she has no claim. No DMCA group is going to risk escalating this to court if it's a no-win scenario,
especially if their service doesn't promise to go to bat in court for their clients, which it doesn't.
DMCAForce does not advertise itself as a legal representative. It advertises itself as a company utilizing technology they've developed to automatically detect and flag instances where they've discovered the client's content being used. This can be overzealous and aggressive as a policy, because their own description of their product implies they approach things in a "shoot first, ask questions later" manner and may flag things that should not have been flagged. If that's their approach, they either need to:
A) Advertise having a legal team ready to defend their claims
B) Fold like paper the moment disputes come
They make no mention of legal expertise, and in fact they make their work sound automated, meaning they don't necessarily have workers sitting down to review what just got flagged. Their own website has this:
5. How do you distinguish between piracy infringements and legitimate sites?”
We only monitor sites that are known to have piracy. We do not just do general search engine searches looking for your work. This reduces the chances of legitimate sites being sent DMCA Notices. In the cases where a site is known to have a mix of unauthorized and authorized work like YouTube or Scribd, the infringements are flagged for additional visual review by our staff.
Unfortunately, no. Some sites, especially torrent sites, are unresponsive to DMCA Notices and utilize hosts who also are unresponsive. However, we do escalate our notifications and after long term notifications, these sites are often forced to lose their domains. With the most accessible types of piracy which are from tubes and cyberlockers, removals are typically around 99% or higher.
I do not get the impression they have a legal team beyond knowing how to write a cease & desist, knowing how to escalate to non-responsive parties, and knowing options on how to escalate further in such scenarios. Their main focus is instead flagging instances of the client's content. That they take the overzealous "shoot first, ask questions later" approach should be irrelevant to customers, who merely want their content protected and do not care about unnecessary headaches they may cause other people who fall under fair use.
Look at how they flagged this very website. Did anything come of it...? Of course not, because all they did is file the complaint through the proper channels, but the people they filed the claim to (the server host) looked at it and said "WTF is this shit" and tossed it out. At this point DMCAForce did nothing further because
they have no interest in actual legal battles and are not legal representatives.
Basically, this ISN'T a court case.
The moment it's even escalating to threats of court in a lawyer's letter,
someone is backing down. Youtube would have no interest in going to bat for Pizzacake if he's right he falls under fair use, DMCAForce would have no interest in doing so (they already have evidence of doing their job and flagging it as promised, they made no guarantee they'd succeed or that they'd go to bat for her), and Pizzacake herself is not capable of accomplishing anything DMCAForce isn't capable of.
IF he were to get a letter back from Youtube refusing to reverse the decision and clearly explaining why (aka not some automated crap), that's
his cue to back out and accept his losses, because Youtube 100% has more money, a better legal team, and would not behave this way if they weren't confident in their decision. I doubt this happens though. He's probably just stuck in "automated limbo" and Youtube hasn't seriously reviewed his case yet.
Legit the only thing he may need a lawyer's help with is drafting up a letter that hits all the right legal points in order to provoke a response from Youtube. That's it.
Trying to hit DMCAForce with damages...?
Now we're in the territory where this is interesting, though I wouldn't advise pursuing this to him cause now we're in the territory of a legal headache that's not personally worth it for him, but I do think it's worth noting that DMCAForce's own description of their service practically admits they put blind faith in a program and leave their flags up to Youtube's discretion, which you can easily argue is negligence where they should know better.
They're basically admitting they put no thought into any of this and I'd be curious how a court would react to a business model such as this. You're right here though and it's not worth getting into a legal battle over for his own personal sanity. I'm moreso just saying I won't be surprised if business models like this one eventually end up slapped down by someone who pursues a case such as this.
I would not be surprised if part of their program filters out anyone with money (AKA someone like PewdiePie does a similar video and their program gives him a pass because fuck yes PewDiePie can curbstomp them in court without it even costing him) and they only target small fries, and the moment a small fry shows any degree of resistance, they just fold to avoid legal battles for themselves. Their "defense" is thus less legal, and more that people like BasedIfTrue have no motivation to spend thousands of dollars just to attempt to get hundreds in damages, especially if DMCAForce kindly folds the moment there's reasonable legal pressure.
For that reason, sending a letter not just to Youtube but also to DMCAForce could be interesting. At least worth a shot to see how they respond, if the lawyer isn't charging him an additional 4k or some bullshit just to send the letter a second time.
He's also not getting PizzaCake period because she can just claim she trusted the service to make the right call. She's legally safe here.
