YouTube and Fair Use exceptions

by King Solomon 9 Replies latest jw friends

  • King Solomon
    King Solomon

    This is posted as information hopefully helpful for those who've posted Sparlock videos, or other IP (intellectual property) which is owned by WTBTS, and have received a DMCA takedown notice from YouTube (YT).

    I host many vids on YT, and have much first-hand experience with the dreaded DMCA takedown process, largely thanks to a video that was posted by me years ago that gets alot of traffic (currently 700k hits) and is subject to recurring take-downs notices from NBC Universal (it is an SNL skit that I use as a launching point for a discussion of the principles of sexual harrassment law. NBC Universal has a HUGE skyscraper in L.A./N.Y., teeming with IP lawyers: this is what they do to earn their keep). I've talked to IP lawyers, just to make sure I understood the process (which is easy to handle yourself).

    Disclaimer: I am NOT a lawyer: spend your own $$$ on legal advice, if you are in doubt.

    The first thing to realize is that the takedown process largely is automated by YT, wherein content owners (networks, movie studios, corporations, etc) submit a DVD or video footage of their protected work(s), which is automatically screened against existing and uploaded YT user videos looking for a finger-print "match" of the footage. If YT's Content Cop Bots find a match, the take-down process begins automatically, yanking the video in hopes the likely infringer freaks out, and doesn't attempt re-uploading (at the risk of losing their YouTube account, if they do. Your YT user account takes a 'hit' if you get a takedown notice filed against it, and DON'T fight it AND win).

    Problem is, the bots cannot determine if the video actually IS Fair Use or not; that's a determination which ONLY can be made by a Fed Court. So YT's policy (which is in accord with Fed DMCA Safe Harbor provisions) is to take-down all possibly infringing content, and let the parties work it out.

    THEREFORE, it behooves those who've used the potentially-infringing footage legally (i.e. as a Fair Use exception) to file a counter-notice, telling YT that you feel your use IS in fact Fair Use (public commentary, criticism, parody, etc; most Sparlock videos are critical of WTBTS, and most likely would qualify as public discussion and criticism of a religious belief for public benefit. Such IS a protected activity, a form of Freedom of Speech, where using the original for criticism purposes IS legal).

    When you file a counter-notice, YT lets the content owner know that the ball is now in their court; they need to follow through by filing a suit in Federal Court within 5 (I think?) business days, suing the uploader for copyright infringement.

    At that point, MOST content owners may evaluate the uploaded footage, and in my case, NBC Universal backed down, and DIDN'T file suit: they realized they likely would LOSE a copyright infringement lawsuit, as I was careful to comply with ways to support my claim of Fair Use (eg 'de minimus' usage of the protected footage, I described the Fair Use claim in the description, I didn't monetize the video, and chose a category like 'non-profit' or 'education' when uploading, enabled user comments). So after NBC failed to file suit, they retracted their claim, and the video went back up after 5 days: my account status went back to normal.

    The bad news is that YT apparently allows the content bots to periodically re-issue takedowns, EVEN THOUGH the content owner didn't file suit! In the past 3 years, I think I've had 5 or 6 repeat takedowns filed, which is against the spirit of the DMCA takedown process, and constitutes abuse of process; that's classic double/multiple jeopardy, which IMO violates a tenet of Federal Law. I assume they're checking to see if I'm still alive, perhaps hoping that I won't respond with a counter-notice, and hence the video will be pulled down forever? It's like the Grim Reaper of DMCA, with content owners eventually reclaiming "their" footage from fair-use exceptions....

  • 00DAD

    Good post, thanks for sharing!

  • Leolaia

    A famous Youtube video about fair use (by Professor Eric Faden of Bucknell University) made entirely with Disney since 2007:

  • King Solomon
    King Solomon

    Thanks for the video, Leo. As the video points out, Disney is one of the more "aggressive" content owners when it comes to protecting their IP assets, and the existence of the video itself (since 2007, as you say) indicates that there are limits to copyright protections afforded to the owner(s).

    People forget that it's a balance: in exchange for granting copyright protections to content creators, Congress also granted certain rights to the consumers, e.g. the so-called "Right of First Sale" is a consumer protection that exists, but is threatened largely by ignorance of the electorate when they fail to realize their right is under attack (esp as it pertains to software licenses, but that's another thread).

    WTBTS similarly hopes to benefit from uploaders ignorance of IP law, who are intimidated by a takedown notice. My point is uploaders should do their homework, but call the WTBTS on their bluff: JWs know a thing or two about Freedom of Speech, and should be very afraid to try and squash valid public criticism of their beliefs, using copyright law as their cover to suppress it.

    In the unlikely event the WTBTS TRIED to proceed with a lawsuit (a stoopid (sic) thing to do, in most cases), many of these cases can be dismissed by asking the Judge for a summary judgment. I've been following those infamous copyright trolls out of Las Vegas, Righthaven, who've basically been run out of business of purchase the tight to sue on behalf of content owners, i.e. they tried to make a business out of suing copyright infringers. It hasn't gone well for them! I'd be a bit more concerned about WTBTS, though, as they seemingly have $$$ to burn and an ideology that justifies taking on groundless cases....

  • cedars

    Thanks King Solomon & Leolaia for this info. I understand another YouTuber is challenging the decision after a mirror of my video was also taken down from his channel. I may see how things develop there first. I understand that the likelihood of the Society backing down is strong, but as of this moment I have little stomach for the potential of becoming embroiled in a legal battle, even if it ends in my favour. I simply don't have the time. At least, that's how I feel right at this moment.

    In any case, I believe that by being so petty and vindictive the Society has done themselves more damage than if they'd allowed the video to remain unchallenged.


  • King Solomon
    King Solomon

    Hi Cedars,

    Yeah I posted this after I saw your thread, but for some reason couldn't post there... Still, I thought it important enough to start a legalesque thread on the topic...

    I'd be tempted to upload my own version of the video, since I'd LOVE for them to take me on. However, each use of their IP stands alone, so to speak, since the particulars of each case are different. So it's not like one case sets a precedent for other "fair use" cases...

    But the point is, your YT account DOES take a hit if your video is flagged, and you DON'T fight it. I'm not sure of how many such take-down notices you can get before your account gets banned, but you might look into it, just to play it safe... I know YT accounts have a copyright compliance indicator now, but haven't looked at it in quite sometime...

  • Scott77

    Cedars, I understand your point. And in between, the case would be in USA thus forcing you to fly fro London to USA several times. I suggest for you to use or contact Professor Eric Faden of Bucknell University for some tips.


  • DT

    I can't comment on the other thread for some reason.

    I noticed that the video says it was taken down because of a copyright claim by Watchtower Bible and Tract Society of Pennsylvanias. Although, that may be a misspelling, that entity as it's spelled doesn't appear to exist. I would ask YouTube about that. I don't see how they can remove something based on a claim by a nonexistent corporation. How would you even fight a claim from something that doesn't exist?

  • cedars

    Thanks everyone. I've looked into this and given it a little more thought. Having checked the instructions on filing a DMCA Counter-Notification, I don't think I will be able to appeal this. The reason is that, in order to appeal, I need to provide my full real name and address. This information will obviously be passed on to the Watch Tower Society, who may in all likelihood use it to pursue judicial action against me.

    As many have pointed out, the original "Sparlock We Love You" video clearly falls under the realm of fair use. I'm convinced that, if I pursued this, the Watchtower would be forced to back down. However, even though I know the removal was unjustified, I don't think it's worth getting disfellowshipped over filing a counter-notification - especially since this appears to involve my identity being made public.

    I understand Punkninja12, who mirrored the video and has also had it removed, will be fighting this - and since he has no issues with divulging his identity, perhaps it's best to let him be the one to take the fight to the Watchtower.

    It's a shame that this sort of dispute is so heavily weighted on the side of the cult, and the little guy who could be disfellowshipped for making a stand doesn't stand a chance.

    If anyone wants to upload my original Sparlock video as a means of protest, please email me at [email protected] and I'll try to figure out a way of sending you the video for upload.

    I really do appreciate everyone's support!


    ps - DT, I also noticed the typo. It would be interesting if the complaint turned out to be unjustified for that reason alone. I guess I'll never know!

  • Londo111


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