Celebrities, Big Corporations, and Copyright Strikes: Are YouTube Functions Being Abused to Silence Critics and Competitors

I'm not a copyright lawyer.  I don't play one on TV.  I know a little about copyright law from my law schools days.  So, definitely don't take anything I write here as legal advice. 

Dr. Drew Pinsky appears to have joined the list of celebrities and organizations who have abused a system created by YouTube, and other social media sites, supposedly to fight copyright infringement, in order to shut down criticism.  Pinsky, a practicing M.D. and Diplomat of the American Board of Addiction Medicine and the American Board of Internal Medicine, cultivated a celebrity persona over the decades with his appearances on various radio and television shows discussing medical issues.  He was recorded recently stating that from the beginning, he considered the coronavirus, SARS-CoV2 which causes the disease COVID-19, could be worse than the flu.  However, a YouTuber called DrDoops published a montage of clips dating back to February 4, 2020, where Dr. Pinsky claimed that the virus was "way less virulent than the flu."  The video on YouTube lasted a little less than five minutes.  A Twitter user, named, "Flatten the curve, not the webrant," going by the Twitter handle @web_rant, posted a two-minute version of the video on April 5, 2020.  YouTube had pulled the video off of its platform, citing copyright violations.  On Twitter, Dr. Drew responded to a user who had retweeted the video, stating, "Infringing copywrite [sic] laws is a crime.  Hang onto your retweets.  Or erase to be safe."  Some have interpreted Dr. Drew's response to be a veiled threat to seek criminal legal action against those who spread the video.

(To YouTube's credit, the company reinstated the video on April 7, 2020.)

YouTube raises revenue by selling ads to run before and during the videos posted to its site.  YouTube shares this revenue with users who obtain a certain amount of subscribers, and induce other users to view their videos for a minimum number of minutes.  However, users have, at times, incorporated materials copyrighted by others in their videos.  Copyright holders argue that it is unfair, and indeed illegal, for YouTube users to profit from copyrighted materials that the users do not own.  YouTube has responded with a method to report when a user has posted a video that contains copyrighted material.  The purported copyright holder fills out a copyright removal webform, and submits it to YouTube.  YouTube then removes the video from its platform.  YouTube gives the user a "copyright strike."  If YouTube gives that user three copyright strikes, it will terminate the user's account, delete all videos from that account, and ban the user from creating any new accounts.

Users who disagree with the action can challenge the copyright strike.  The user submits a counter notification.  YouTube will then determine whether the original copyright claim was valid.

Copyright law, however, can be complex.  Whether a video amounts to infringement may not be a matter of black and white.  The Fair Use Doctrine, for example, permits a person to use copyrighted material for commentary, criticism, parody, education and research.  What constitutes fair use is often a matter of detailed analysis of facts of circumstances.

Similarly, content may fall into the "Public Domain."  The public domain is the legal term for when a creative work may be freely used by anyone, without obtaining permission or a license from the creator.  This can happen because the legal protection granted to copyrighted material lasts for only a limited period of time.  When a copyrighted work falls into the public domain can be complicated, due to legislative action taken because certain entertainment outlets have lobbied Congress to keep their work protected.  A work can also be part of the public domain because the author intended it to be.  A work created by the federal government is also in the public domain.

The problem, many users claim, is that YouTube's system is subject to abuse.  Filing a copyright webform will almost immediately result in the video being removed.  YouTube's appeal process, these users claims, usually takes days, if not longer, to resolve.  In the meantime, the user is robbed of the ability to accumulate view time, and therefore ad revenue.  Where the video in question concerns a fast-moving current event, it effectively prevents the YouTube user from capitalizing on that event.  The process can also be abused by those who wish to silence critics.  More alarmingly, the lengthy process can be abused to drive competitive outlets, who are small users lacking the resources of multi-million dollar corporations, out of business.  Unscrupulous entities have been charged with buying the copyright of certain content, and then threatening small YouTube users with the possibility of a copyright strike, to demand exorbitant payments in order to avoid having the user's channel deleted.

David Pakman, for example, complained that big media outlets, such as CNN and NBC, filed copyright strikes against him when he broadcast live streams of congressional hearings through social media.  During the lead up to the impeachment of President Donald Trump, for example, Pakman would live-stream hearings before the House of Representatives, which were originally broadcast through C-SPAN, the congressional cable TV organization.  Because such public hearings show the workings of the government, they are in the public domain.  Nonetheless, large media outlets filed copyright removal webforms against Pakman, claiming the live-streams infringed on their copyrighted broadcast of the same material.

Pakman, who is a liberal political commentator, alleged that because of the actions of the media outlets, his live-streams of the hearings were removed from YouTube immediately.  He thus lost the opportunity to realize the revenue generated from the ads on those live-streams, upon which Pakman claimed he depended in order to be able to continue to broadcast his podcasts and other forms of commentary as his job.  Pakman charged that YouTube was in the back pocket of the big corporations, which engaged in this predatory behavior in order to drive small political commentators like him out of business.

YouTube users PewDiePie and Retroblasting have complained that celebrities and other YouTubers have filed copyright complaints with YouTube when they have disliked the criticism they have received through videos published on the platform.

Dr. Drew has apparently joined the list of those unhappy with criticism aired on social media, and responded by making copyright claims.  Ironically, Pinsky wrote a book entitled, "The Mirror Effect: How Celebrity Narcissism is Seducing America."  Now it appears to be his narcissism that is playing a role in shutting down free speech on social media sites.

By:  William J. Kovatch, Jr.

References

DrDroops, "Compilation of all of the inaccurate, contradictory things that Dr. Drew has said about the Coronavirus," YouTube Video (April 2, 2020).

French, Leonard, "Dr. Drew DMCAs Critical Montage, Was It Fair?", Legal Masses with Leonard French (April 6, 2020).

French, Leonard, "The Injustice of Copyright - MxR Plays Extortion," Legal Masses with Leonard French (January 9, 2020).

Fuster, Jeremy, "Dr Drew Supercut of COVID-19 Gets YouTube Copyright Takedown," The Wrap (April 5, 2020).

Lee, Timothy B., "15 tears ago, Congress kept Mickey Mouse out of the public domain," The Washington Post (October 25, 2013).

Pakman, David, "CNN AND NBC Drop Hammer on David Pakman," David Pakman Show (November 18, 2019).

Pakman, David, "We.re SHUT DOWN by Political Consultant OR Right-Wing Troll," David Pakman Show (February 26, 2020).

PewDiePie, "STOP DOING THIS! - Copyright Striking Criticism Etc," YouTube Video (January 11, 2019).

Pinsky, Drew, "About Dr. Drew," drdrew.com.

Retroblasting, "You Had Your Chance, Danoby," YouTube Video (February 10, 2020).

Retroblasting, "Danoby Doesn't Want You to Know This, I Have the Receipts," Bit Chute Video (February 10, 2020).

Stim, Rich, "What is Fair Use?", Copyright & Fair Use (Stanford University Libraries).

Stim, Rich, "Welcome to the Public Doman," Copyright & Fair Use (Stanford University Libraries).

Weiss, Norman, "YouTube reinstates viral video of Dr. Drew downplaying coronavirus that he had removed claiming copyright infringement," Primetimer (April 7, 2020).

Wodinsky, Shoshana, "YouTube's copyright strikes have become a tool for extortion," The Verge (February 11, 2020).

World Health Organization, "Naming the coronavirus disease (COVID-19) and the virus that causes it."

YouTube, "Copyright Infringement Notification Requirements," YouTube Help.

YouTube, "Copyright Strike Basics," YouTube Help.

Is There a Right to Record Police Activity?

A judge on the U.S. District Court for the Eastern District of Pennsylvania has issued a decision holding that there is no First Amendment right to capture video images of police in public if the recording is not connected to some other form of expression.
 
The decision, Fields v. The City of Philadelphia, involves two cases with similar facts. In one, a pedestrian saw about twenty police officers hosting a party in public and used his smart phone to take video recordings. The pedestrian thought the scene was "pretty cool," and thus took the video.  He was about fifteen feet away from the police. An officer saw the pedestrian and asked him to leave. When the pedestrian refused, the officer detained him, handcuffed him, took the phone and searched his person.

In the second case, a "legal observer," trained in observing interactions between police and civilians in civil disturbances attended a protest wearing a pink identifier. As the police arrested a protester, she attempted to capture video images. An officer restrained her, preventing her from capturing the video images.
 
Both filed lawsuits pursuant to 42 U.S.C. § 1983. This law gives a cause of action to those who have been deprived of a constitutional right under the color of law. Both claimed constitutional rights under the First Amendment right to freedom of expression and the Fourth Amendment freedom from unreasonable searches and seizures.

The decision was issued in the context of motions for summary judgment. The court addressed only whether there was a First Amendment right to capture video images of police. That is, the court did not address the Fourth Amendment claims.  The District Court reasoned that observation alone was not expressive conduct.
 
The holding of Fields was actually very limited. The District Court held that in the context of a lawsuit alleging a deprivation of constitutional rights, capturing video images of police officers without some other form of expression connected to it is not a protected right pursuant to the First Amendment. The court did not hold that capturing video images alone is illegal. Nor did the court hold that seizing a device to prevent a person from recording video images of police officers in public was a reasonable search and seizure pursuant to the Fourth Amendment. All that the court held was that a person who had been prevented from capturing video images of police officers in public, who were not otherwise engaged in expressive conduct, could not sue the government or government officials for violating First Amendment rights.
 
The problem, however, is that the District Court's holding can be misinterpreted too broadly and thus lead to abuse by the police. For example, a police officer, upon seeing a person with a device which could possibly be used to capture images of police could conclude that because there is no First Amendment right simply to capture those images, that the officer is justified in confronting the putative videographer and seizing the device or otherwise preventing the images from being captured.

Another problem is that making the right to capture video images of police in public dependent upon some other form of expression means that the right would only be available to those who are quick-thinking, assertive or otherwise in conflict with the police. That is, in order to enjoy the right, a person must think of some reason why they are capturing the video images and assert that reason to police.

Take, for example, a shy person who has witnessed some form of police conduct they deem worthy of recording. If the police confront that person in an effort to prevent the recording, then whether the person has a First Amendment right would depend on whether that person has the temerity to challenge authority and was quick thinking enough to give the police some reason the police would deem valid.

The most disturbing aspects of the court's holding are the failure of the court to recognize that art itself is worthy of protection as free expression and the minimization of the court of the need to gather information before engaging in more expressive conduct.

Art is free expression. Art can be for the sake of aesthetics or simply stimulating the senses. While the Plaintiff in Fields may not have been the most articulate of witnesses, art can simply exist because it is "cool."  Fixing something a person sees to a visual medium, such as digitally recorded images is, in and of itself, art and therefore protected expression.

In order to enjoy a First Amendment right to capture video images of police, the District Court would require that a person go into the situation with a preconceived intent to publish the images captured in order to engage in criticism. But this would mean that the observer must already be in conflict with police activity before even observing it. It would mean that the observer must be able to express their conflict. It would further mean that the observer must know that the conduct is worthy of criticism. To put simply, the District Court's holding could be construed as a finding that there is no right to investigate police conduct in public absent knowledge that the police are doing something worthy of criticism.

Let's say, for example, that the police have arrested a group of young men who are present in public. While the police were in the process of placing handcuffs on the men, and waiting for back-up to transport them to the police station, a person would not have a First Amendment right to stand at a distance unobtrusive to the police and record the event unless that person knew and was willing to state that the police action was in some way worthy of criticism.

That is not to say that recording the police in this fashion would be illegal. But this type of hair-splitting that the District Court has engaged in could embolden a police officer who did not want to have his or her actions in public captured as video images to take action against the observer even though the observer is doing nothing wrong.
 
That is, there is a very fine distinction between saying a person does not have a right to engage in certain conduct, and saying that the conduct is illegal. But to the average person, it is very difficult conceptually to make that distinction. Engaging in the conduct, such as capturing video images, may not be illegal. But that does not mean you can sue the government when you are prevented from engaging in that conduct. The average person would believe that if conduct is not illegal, then you have a right to do it.

There is also a very fine distinction between understanding that generally you do not have a right to record the police, but if you go into a situation knowing that you are going to be critical of the police then you do have a right to record them.

Recording police serves an important public service. A person who knows he or she is subject to being recorded is less likely to engage in illegal conduct. Discouraging the public from recording the police, even when not interfering with the police activity, robs the public of this vital check on abuse of authority.

Fields should not be construed as eliminating this check. In the first place, it is only the decision of one judge in one district responsible for Eastern Pennsylvania. It is by no means binding authority.  But the decision can be misconstrued in a dangerous way by the police. 

By: William J. Kovatch, Jr. 
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