Thanks to the Student-Attorney teams at American University’s Glushko-Samuelson Intellectual Property Clinic I now have a clean slate on my PaulJD2006 YouTube account now that four strikes were removed.
It was a great privilege to work with two talented pro bono legal teams over the course of nearly two years. Shy of having such expert advocates working with you, there may be some lessons in my experience with YouTube strikes that might prove useful. The words in this retelling are mine, a subjective lay person, and do not represent the legal advise or opinion of the clinic.
The headline of this story is that I got my YouTube account back nearly four years after it was shut down in 2010! When the page came back it was complete with all 100+ videos reinstated (comments etc too). I found this remarkable and it begs the question… just how long YouTube will store a terminated page and videos? (Please write if you have information on this score.)
This “resurrection” happened last spring (2014) – but since I still had two outstanding strikes against me (it’s 3 strikes you’re out) it didn’t seem prudent to crow about the victory. Maybe I was being paranoid but with over 100 clips of mixed provenance in my YT collection, I did not want to tempt fate and lose my account again. I can now “go public” since a second team from the clinic cleared the remaining two strikes this April.
On a side note – though very happy to get the account back I lost all the momentum built up from 2007 to 2010. In the last year before the termination I probably got several dozen comments a month, but in the year it’s been restored I’m lucky if I see a two comments a week. The difference between YouTube 2010 and 2014 gave me a Rip Van Winkle feeling, but that story is for another time.
Though I’ll not be naming the parties who initiated the takedowns (strikes) against me, here is a sketch out how the clinic went about clearing the strikes. In 2010 strikes (takedowns) 3 & 4 came from an American production company – which resulted in the termination of my YouTube page. I had posted 2 short films of theirs made in 1971. Before doing so I looked up the program I excerpted from and there was nary a mention of it on the web – effectively a footnote and certainly no on-going activity or presence, so I didn’t see a conflict. After the takedowns they initiated, I tried repeatedly to contact the company to explain myself and apologize. Over the course of several attempts, staffers said they were not able to help me. When the GS IP Clinic weighed in on my side I was aided by their prestigious letterhead in addition to their well reasoned arguments. Their letter to the production company offered a more refined “olive branch” but also indicated that if we failed to reach an agreement I would file a counter notification with YouTube because the company did not own all necessary rights to the content (re. their making the copyright-infringing claims) but rather the network did. This letter did the trick, the production company withdrew the infringement claims after I promised to remove the offending clips. I deleted the those clips once I got control of them back.
Clearing Up the Last Two Strikes
The remaining two strikes came from overseas media companies, one European, the other Asian. In the first case I posted something from the 1930’s naively thinking that it was too old to be actively commercial or that anyone would care. Challenging that takedown started in Spring 2014 and resumed in the Fall of 2014 when I started working with a new team at the GS IP Clinic (there was not enough time the previous Spring semester to deal with all the strikes). I would characterize our approach to the Euro company as a olive branch (unlike the Asian case up next) as there did not seem to be a strong Fair Use case to be made. The Euro company was willing to forgive and retract the YouTube complaint after they were assured “you will not lose any legal rights as a result of your retraction.”
However the following dilemma arose. This company had a different e-mail address and domain name at the time of the 2008 complaint and they got the following letter from YouTube about the mismatch.
It took a while to come up with a solution but the Euro company was made to understand that the only workaround for the mismatched domain name was that I/we would submit a counter notification with YouTube that in no way was meant to challenge them as copyright holder and promised to delete it as soon as we’re able. (And the company agrees not to pursue legal action in this scenario.) 14 days after the counter notification I got control of the clip back and immediately deleted it. So the lesson re. the domain mismatch is that is is very easy to imagine a less cooperative company that had lost all records of their YouTube copyright infringement claim, in that instance a user would be stuck with the strike forever thanks in part to such a e-mail mismatch.
I’m pretty sure there is a way of getting Claimant Email re. the copyright infringement notice at the time of the complaint being issued. It was not included in the takedown notice, but I think is available on YouTube if you log in to Copyright Notices section of your Video Manager and click on the correct link.
Fair Use challenge
In this last case we mounted a Fair Use defense because the offending clip was one of several Bollywood clips in my YouTube collection. The common thread in all of them was Western pop culture seen through the lens of South Asia. Or as we put it in a letter to the Bollywood company “for the purpose of illustrating how Western culture morphs as it spreads throughout the globe.” We wrote them asking for a retraction of the strike but also indicated that if we could not reach agreement, we would file a counter notification citing Fair Use (below). After a month or so without reply to our postal mail or e-mail we proceeded with the counter notification. I call this “Curatorial Fair Use” because the excerpt is transformed by my selecting it, taking it out of the context of the film, and placing it in the new context of my exploration of a theme.
During the 14 day period the Bollywood company did not challenge our counter notification, which automatically results in having the clip restored (see notice below). I imagine YouTube users can only rely on anecdotal information as to how often the objecting company acts on a counter notification. One wonders if YouTube user with a certain amount of risk tolerance might mount a challenge (flimsy or otherwise), and hope to get the clip reinstated as the result of bureaucratic inaction, then delete it. This being something of a end-run or Hail Mary pass to get a strike removed. I’m not endorsing this, just speculating.
As a postscript I’d mention that 2010 seemed to be a high water mark of aggressive infringement claims and takedowns by “copyright maximalists.” For example in the years since the Bollywood claim, the same clip appeared all over YouTube and remained there. What became more common was for the copyright holder to monetize the “infraction”, that is – place a video commercial before the clip or a static ad to the side and make money from that. In a users Copyright Notices section of their Video Manager there is a list of infringement claims.
The actual strikes will say “Removed” but if it says “Matched third party content” and you click on that, you’ll be taken to a page that says “Ads might appear on your video” (below) with a number of options. Such as “Remove song” or “File a dispute.” The other notice that is shyof removal is “Video blocked in some countries” which in my case is Germany. I hope this saga is useful to you, please write me if you have your own YouTube experience to share.