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.

Putting the 9th Circuit's Decision Concerning Trump's Travel Restrictions into Perspective

On the evening of February 9, 2017, the U.S. Court of Appeals for the Ninth Circuit issued an order denying the Government’s motion for a stay of a temporary restraining order from a U.S. District Court in Washington State preventing the Government from enforcing an executive order signed by President Trump which put a temporary halt to the admission of refugees, and to the admission of aliens from seven countries which have been deemed to be a danger to national security.  The case is entitled, The State of Washington, et al. v. Donald Trump, et al.

Immediately, both sides took to the airwaves and to the Internet attempting to turn the decision into a bigger deal than it really is.  Both sides have an incentive to engage in a publicity war and court public opinion.  The opponents of the executive order have an interest in giving the impression that this decision is a major victory against the Trump Administration.  Likewise, the proponents have an interest in creating a public perception that the judiciary needs to be reigned in with more favorable presidential appointees.

In this publicity battle, it is important to keep the 9^th Circuit’s decision in perspective, and consider what it is that the Court did and didn’t do.

This is not a decision on the ultimate merits of the executive order.  That is, the 9^th Circuit did not find conclusively that the executive order was unconstitutional.  The sole issue before the Court was whether the temporary restraining order (TRO) should remain in place while the case is pending for a decision on the merits before the U.S. District Court.

A TRO is meant solely to maintain the status quo while a case is pending.  That is, where there is an allegation that an action is illegal and that the action will cause irreparable harm, a TRO is meant to prevent one side from engaging in that act until the court can decide the merits of the case.  When a TRO is granted, a party can seek a stay from an appellate court.  That is, the party can go to a higher court, and argue that the TRO should not be enforced because the TRO will cause that party harm pending litigation.

With that perspective in mind, it is important to note that the 9^th Circuit itself recognized that its decision was only preliminary, and issued at a very early stage in the litigation, before a full record could be created on the merits.  Nonetheless, the 9^th Circuit’s decision did make some very important points.

First, the 9^th Circuit determined that the states of Washington and Minnesota had standing to establish the lawsuit.  U.S. federal courts do not issue advisory opinions.  That is, federal courts will not weigh in on whether an act by Congress or the President is constitutional in the abstract without there being a case or controversy.  To have a case or controversy, some party must suffer some harm because of the act.

In this instance, the Court recognized that state run colleges were branches of the state governments.  State run colleges have an interest in presenting a quality educational program, which includes foreign students, professors and lecturers.  Indeed, the state schools act as the petitioner in student visas.  Many of the students, professors and lecturers found themselves aggrieved by executive order, as they could not travel abroad and return, or they could not enter the United States to be part of the school’s program.  Therefore, the states, through state-run schools, presented a case or controversy.

Second, the 9^th Circuit ruled that the Executive Branch’s actions in the area of national security were not entirely unreviewable by the courts.  If an Executive action in the area of national security affected individual rights protected by the Constitution, that action could be reviewed by the courts.

Next, the Court addressed the elements necessary for granting a stay.  In doing so, the Court considered:  (1) the likelihood of success on the merits; (2) would the party suffer irreparable harm absent the stay; (3) whether a stay would cause substantial injury to other interested parties; and (4) where the public interest lies.  The Court found that the Federal Government’s showing on the first two factors was lacking.

When considering the likelihood of success on the merits, it is important to remember that decisions concerning a stay are issued at an early stage of the litigation.  The appellate court recognizes that the record has not been fully developed.  And thus it should not be taken as an authoritative sign that one party will ultimately prevail.

Nonetheless, the 9^th Circuit did find that the executive order deprived certain parties of the constitutional right to due process before an interest can be taken away from the government.  Due process requires, at a very minimum, a party with a protected interest must have the right to notice and an opportunity to be heard.  The executive order made no provisions for notice and opportunity.  Therefore, to the extent that a party had a protected interest, the Federal Government could not carry its burden that the state governments’ arguments would necessarily fail.

The Court noted that the right to due process is not limited to citizens, but rather applies to all persons within the United States (whether present legally or illegally), as well as to certain persons seeking re-entry into the United States.

Specifically, permanent residents have an interest in traveling and re-entering the United States.  Likewise, those who have been issued non-immigrant visas (these are visas allowing a person entry for a temporary time for example to work or go to school) have an interest in having that visa honored and being permitted entry into the United States.  Before infringing on those interests, permanent residents and visa holders must be given notice of the Government’s intent and an opportunity to be heard.

In this regard, the Court found that statements made by White House counsel to the effect that the executive order would not affect permanent residents was not sufficient.  Interpretations by White House counsel are not authoritatively binding.

The Court declined to narrow the impact of the TRO, either in terms of who the TRO covered or the fact that the TRO was national in scope.  The Court stated that the Federal Government had not offered an alternative set of people that the TRO would cover that would include all persons with a protected interest.  Additionally, uniformity of enforcement with respect to immigration issues was desirable on a national level.

Concerning the argument that the executive order infringed on religious rights, the 9^th Circuit merely stated that it was too early in the litigation to make such a determination.

Finally, with respect to the balancing of hardships and the public interest, the Court found that while the Federal Government has an interest in combatting terrorism, the Government had not shown an immediate need to implement the order.  Specifically, there was no showing that any alien from one of the seven countries had perpetrated an attack against the United States. This was in contrast to the substantial injury that persons with protected interests would suffer if the travel restrictions remained in place. Regarding the discretionary waiver provisions of the executive order, the Federal Government offered no explanation as to how they would function.

There is much in this decision that is useful to the immigration law practitioner.  Specifically, the recognition of a protected interest in those who already hold permanent residency or visas to re-entry to the United States, and the requirement that such interests cannot be infringed upon without due process is helpful.  Likewise, the recognition that the Federal Government cannot shield its actions from judicial review merely by claiming it is a matter of national security is in line with prior Supreme Court precedent.

But it should be noted that the case is far from over.  Litigation over the merits, wherein both sides will better develop the factual record and their arguments, continues at the U.S. District Court level.  After that, there would still be an opportunity for an appeal to the 9^th Circuit and potentially the Supreme Court.  It may take a long time before the case is ultimately decided.

By:  William J. Kovatch, Jr.

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