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.

How the Diversity Visa (the Lottery) Actually Works

President Donald Trump has expressed his distaste for the diversity visa on numerous occasions.  In the Rose Garden on February 15, 2019, Trump exclaimed, "And then you have the lottery.  It's a horror show, because when countries put people into the lottery, they're not putting you in; they're putting in some very bad people in the lottery.  It's common sense.  If I ran a country, and if I have a lottery system of people going to the United States, I'm not going to put in my stars; I'm going to put in people I don't want."

Trump continued with his criticism in a campaign rally in Cincinnati on August 1, 2019, stating, "And you pick people out of a lottery.  Well let's see, this one is a murderer, this one robbed four banks, this one I better not say, this one another murderer, ladies and gentlemen, another murderer.  Do you think [these countries] are going to put their great citizens . . . into the lottery?  Look at the people they put into these lotteries."

Trump's message has been consistent.  In 2017, Trump told graduates f the FBI National Academy, "They have a lottery. You pick people. Do you think the country is giving us their best people? No. What kind of a system is that? They come in by lottery. They give us their worst people, they put them in a bin, but in his hand, when he’s picking them is, really, the worst of the worst. Congratulations, you’re going to the United States. Okay. What a system — lottery system."

It is actually quite amazing.  Everything Trump says about the diversity visa lottery is completely wrong.  Not one bit of it is true.  The governments of foreign countries play no role in who applies for a diversity visa through the lottery system.  There is no bin.  No names are drawn from a hat.  Those who win the lottery, and thus have a chance to immigrate to the United States, are vetted to ensure they have no criminal record.  Indeed, in order to obtain the visa, a lottery winner must have a certain level of education or skill to ensure they will not be a drain on the U.S. welfare system.

Through the diversity lottery, visas are made available for 50,000 people each year.   The idea is to give people from countries that have traditionally sent fewer immigrants to the United States the chance to immigrate to the United States.

If a country has sent 50,000 or more immigrants to the United States in the last five years, then people from that country may not receive a diversity visa. Based on this criteria, people from Canada, Mexico, the Philippines, the Peoples Republic of China, El Salvador, Haiti and South Korea, to name a few, are not eligible.

The diversity visas are distributed by region, with people from the regions sending the fewest immigrants to the United States in the previous five years receiving the most visas. The regions which currently receive the most visas under the program are Africa and Europe. No one country can receive more than seven percent, or 3,500, of the visas available for that year. The visas are distributed at random.

To apply, a person enters the lottery online during the registration period. Winning the lottery does not guarantee that the applicant will receive the visa. Rather, the applicant must meet certain additional requirements. The applicant must have graduated high school, or have spent two out of the last five years in an occupation requiring at least two years' training or experience.

A person does not need to meet the eligibility requirements in order to apply online. This has led to a number of disappointed lottery winners. That is, a person can win the lottery only to learn that he or she does not have the required education or work experience to receive the visa.

The be able to immigrate to the United States, a person who receives a diversity visa must still be admissible pursuant to U.S. immigration law.  That means the person may not have committed certain crimes, such as murder, theft or sexual assault.  The person cannot have certain communicable diseases, be a habitual drunkard, be likely to become a public charge, or be considered a threat to national security.

To summarize, a person desiring to immigrate to the United States enters the diversity visa lottery.  That person's government has nothing to do with the application.  Foreign countries do not put people's names into a bit, or a hat, or a box.  An individual applies through the internet by going online.  A computer program picks names randomly.  In order to come to the United States, the person just have a minimum level of education or work experience, and cannot have committed certain crimes.

Thus, when Trump describes the diversity visa, he is engaging in nothing more than fear mongering.  This fear mongering fits in with his overall approach to immigration, where he manipulates the fear of his followers to promote more restrictive immigration policies.  He ignores studies which show immigrants as less likely than those born in the United States to commit violent crimes, instead painting all immigrants as potential threats to the public safety.  Education and access to accurate information can prevent Trump from manipulating the ignorance of his followers to pervert immigration law and policy.

By:  William J. Kovatch, Jr.