A Creator's Guide to Fighting Content Bullies
New Media Rights staff attorney Teri Karobonik explains fair use and copyright law in the era of YouTube.
Jonathan McIntosh was, by all Internet measures, succeeding. After uploading a video mashup of clips from Buffy the Vampire Slayer spliced with scenes from Twilight, the compilation, which paints Twilight’s vampire protagonist as a disturbing creep, garnered views by the millions, hat tips from major media outlets, and a 2010 Webby nomination for best video remix/mashup. That came to a halt in 2012 when Lionsgate, the company that owns the Twilight film series, filed copyright claims against McIntosh, at first attempting to monetize the video then eventually resulting in the video’s removal. McIntosh’s side of the story is available here.
Working with attorneys from New Media Rights, a nonprofit organization that provides low-cost or free legal services to underserved creators, internet users, and entrepreneurs, McIntosh was able to get his video reinstated, but the case is a disturbing one for artists and critics who regularly use other’s work to create commentary. Teri Karobonik, a staff attorney fellow with New Media Rights who was not involved in McIntosh’s case, says content bullies are everywhere, just waiting to derail an online project with a few quick keystrokes, and they oftentimes get their way since many creators aren’t experts on copyright or fair use laws. Here’s how you can guard your art against content bullies.
Teri Karobonik: Generally, content bullies, when they take down things under Digital Millennium Copyright [Act], the argument is, “Oh, it infringes on our copyright.” However, a lot of content bullies do this without considering fair use, which is a critical part of the copyright system. Fair use is a doctrine that says while we respect the copyright holder’s right to have a monopoly on their work, we value freedom of expression, so we’re going to put in fair use kind of as a First Amendment safety valve for copyright law. When someone’s a content bully, typical scenarios involve blatantly ignoring fair use. … Sometimes it can be because there’s not a copyright issue, but they just disagree with the message.
We’ve seen politicians in the past who maybe don’t like how they’re being critiqued by someone online, so they’ll file a DMCA takedown notice, and they’ll get an article taken down. Another situation, we have had some copyright holders who have just said, “Fair use doesn’t exist therefore we don’t acknowledge it.” That’s a small percentage, but it’s a dangerous percentage. We’ve also had some people do it as trolling, so a content bully could just be like, “I don’t agree with you” or “I want to be mean to you, so I’m going to take your content down.” It can also be competitors. It’s really just anyone who … disables or removes content that is otherwise legal, [and that] otherwise doesn’t violate copyright law just because they don’t like it or they don’t agree with it for whatever reason.
TK: Every day, pretty much. It’s a very common problem online and unfortunately there are very few ways to fix it other than individuals coming forward and essentially fighting back against content bullies. It very much is a challenge to police copyrighted works online, but rather than finding some middle ground that respects fair use, there is a large percentage of content holders who have just said, “You know what? We’re just going to take stuff down that matches our stuff. If something comes up that’s fair use, then they can always dispute that.” The reality is that the dispute process under the DMCA, it’s easy for a lawyer but not necessarily easy for your average Internet user. To give you the spectrum of content bullying cases, we’ve helped everyone from students who are still in high school to grandmothers. People with no legal experience whatsoever. It happens a lot. It’s very pervasive and it’s a problem that the Internet hasn’t quite solved yet.
TK: OK, so YouTube has a section of their terms of service called Section H. That’s the section of their terms of service that basically says you’re not allowed to use bots or computer programs to artificially inflate your view counts or “likes.” However, we found that their algorithm tends not to be accurate and the appeals process for a lot of individuals is so poor that there essentially isn’t an appeals process. I have an article about it on our website called “The Curious Case of the YouTube Bots,” if you want to learn more.
Essentially, we ended up going to YouTube and having about a three-month-long conversation about YouTube bots and can we get these individuals’ videos restored, representing about a dozen individuals ranging from a pop artist who knew exactly where the bots came from, which in this case was an 18-year-old fan who didn’t know what he was doing because he was 18 and thought he was helping, to a law student who had a podcast about sports law whose video was taken down. Most of these videos weren’t viral videos. They were videos with around 8,000 views. Unfortunately, in all of these cases, even when we intervened on the appeal, even when we helped them write the appeal so it seemed professional, it made sense, it tried to get in all of the relevant facts you can put in 1,000 characters, none of those were [effective].
I should also mention that YouTube on Feb 14th did come out with a statement on auditing view counts. I’m not sure if it’s related to our story or not, but we’re monitoring the situation to see if they’re going to start removing artificial views as opposed to taking entire videos down, which is what all of the individuals we talked to would have preferred. They’re more than happy to give away any views that they don’t think are lawful or that came from bots. They’re just more concerned that their video was taken down and there’s no recourse whatsoever.
TK: Not all mashups, unfortunately, are [protected]. We have a few best practices for video creators. First off, we always recommend if this is an area that you’re passionate about and you’re going to get into, it’s in your best interest to read up. We have guides on our website. The Fair Use Center at Stanford has some good guides and also the Electronic Frontier Foundation has some great guides on fair use.
Beyond that, there are a few key things to do. The first is remix the message, not just the media. You’ll see a lot of song mashups that they just mashed two songs together but there’s no commentary or criticism. There’s no real juxtaposition. It just sounds nice. That’s probably not going to be fair use, but let’s say you’re taking two songs and putting them together because when you hear those two songs together it dramatically changes the message of those songs and provides commentary on those songs. It’s the same thing with video, really. In Jonathan [McIntosh’s] case, he took Buffy the Vampire Slayer and Edward from Twilight and took these two videos and mashed them up to change the message of each. Buffy’s message was sort of women are empowered, and looking at those positive female role models contrasted with Edward who, the whole Twilight series, tends to encourage some maybe less feminist-friendly ideals.
TK: Yeah, a stalker, essentially. So when you contrast Buffy with someone who’s basically trying to stalk the love interest in that story, you’re really remixing the message and telling a different story. We also recommend that people use only as much as they need to make their point. Fair use is all about making a point. It’s not about reusing others’ work because it sounds nice or it looks pretty or to avoid having to shoot your own b-roll or avoid having to create your own music. It’s really there to serve as something that you can comment on, that you can critique, that you need to make your point. We see this a lot with documentary filmmakers who will quote short sections of news stories to make their point that something is newsworthy. Not only that it’s newsworthy, but critiquing various media takes to show that maybe a criminal defendant was treated unfairly by the media or things like that. Fair use is about being strategic with your art.
TK: We always encourage before doing anything, just to stop and think. If you were using someone else’s content, did you get permission? Did you have a Creative Commons license or other open license to use it or was it in the public domain, which is before 1923? If it falls into any of those categories, you are probably being content bullied since if you have a license, if it’s openly licensed, or if it’s in the public domain, you don’t need permission to use it. If it’s copyrighted work, you really have to go through a fair use analysis. It’s a very complicated four-step analysis that even lawyers can come to different conclusions on, but we really encourage individuals if they’re being content bullied to reach out to a group like New Media Rights. We can help do that fair use analysis for them.
TK: Unfortunately, there aren’t any really hard-and-fast rules. We always recommend if you’re using media for non-commentary or commercial purposes, consider things like open licenses like Creative Commons. We also recommend giving credit where credit is due because we found that if the individual gave credit, people tend to be less angry than if they just took something if it’s a questionable fair use case.
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