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.

The Way Things Are Supposed to be, and the Way Things Actually Are

Readers of my blog know that there's no secret that I am really enjoying AMC's "Better Call Saul."  I think it's because being a solo practitioner, while I may strongly disagree with Jimmy McGill's ethics, I understand his struggles. Last night's episode, we saw some of the tension of big firm lawyers, who expect things to be the way they are supposed to be, and the solo practitioner, who understands the way things are. 

Time for my required spoiler alert for those who have recorded it, want to catch an encore showing or will be watching through AMC's app. 

***SPOILER ALERT***

Jimmy got in trouble last week by airing a commercial without the partners' prior approval. He wasn't fired, but warned that he would be under a lot more scrutiny. 

This week, we learn what that scrutiny is. A second year associate has been tasked with reviewing everything Jimmy does, and teaching him the firm's way. Jimmy, not surprisingly, is annoyed that he, who was hired as a fourth year associate, is now being babysat by a second year associate. 

The scene that stuck out the most for me was when Jimmy and his babysitter go to court to file a motion and to get a date for a hearing. Jimmy isn't getting the date he wants. So he pulls out a Beanie Baby to offer to the surly clerk. Suddenly, and better date opens up. 

Shocked, the babysitter pulls Jimmy aside and chides him for offering a bribe. The result? It will now be more than a month until Jimmy gets his hearing. 

Look, all of us have come across that bureaucrat who has their own little fiefdom, and will let you know that they have power over you. The question is how do you deal with that. 

I think the mistake many lawyers make is forgetting that the bureaucrat is a person. Some lawyers will treat the clerk or the bailiff or the security guard as just a means to an end. This person has something I want, and she should just give it to me. 

Jimmy's solution, while shady, at least recognizes the person behind the job. He has taken the time to learn that the clerk loves Beanie Babies, so he makes her feel good by offering what she likes. 

Yeah, the direct quid pro quo is wrong. But I do think Jimmy is on the right track. As the saying goes, you get more flies with honey than vinegar. 

I remember back to my internship days. I was the guy who went to a certain embassy in Washington to turn in the paperwork for visa requests for our consultants. For a long time, the consular officer was surly. Even though I knew the paperwork was correct, she gave me attitude. I didn't get things from her on time. This was her fiefdom. 

I didn't go to Jimmy's extreme. But I did change my attitude. I tried to engage her on conversation. I knew a little of her native language, so I would greet her in it. I'd try to joke with her, ask her how her day was. In general, I treated her like a person and not like a means to an end. Heck, I even fixed her printer once. The result?  I suddenly had the reputation of getting visas approved faster than the other interns. My bosses were impressed that I got the clerk whom everyone thought was cold to thaw. 

But that's the point of being in the trenches. You get to know how things really work. You learn how to manipulate that to your advantage, or you learn to live with it. Jimmy, for all his faults, at least knows people. 

By: William J. Kovatch, Jr. 

Memorandum Supporting President's Deferred Action Program

The White House released the memorandum written by the Justice Department detailing the legal support for his deferred action program.  Through this memorandum, President Obama's legal counsel provides analysis on whether it is permissions for: (1) the Department of Homeland Security to prioritize its resources to target undocumented aliens who are criminals; (2) the President to issue deferred action to parents of U.S. citizens and permanent residents; and (3) the President to issue deferred action to parents of DACA recipients.

 

Interestingly, the Justice Department concludes that while it is permissible to issue deferred action to the parents of U.S. citizens and permanent residents, it would not be permissible to do so for parents of DACA recipients.  The distinction appears to lie in the fact that U.S. citizens and permanent residents have a legal status, whereas DACA recipients do not.

 

The release of this memorandum would seem to indicate that the President will not expand his deferred action program to cover the parents of DACA recipients later, as some have surmised.  To do so would clearly contradict the advice from his own Justice Department.

 

It is also interesting to note that this memorandum does not cover the spouses of U.S. citizens or permanent residents.  This is not to say that such undocumented aliens would be ineligible to receive deferred action, merely that this memorandum, and presumably the President's program, will not cover such aliens at this time.

 

By:  William J. Kovatch, Jr.

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Wkovatch@kovatchlegalservices.comn