Pro Tip: If You’re Suing YouTube And Asking For More Time Because The CEO Is Sick, Don’t Post A Highly Produced YouTube Video Attacking The Ruling & Lawyers
from the not-how-any-of-this-works dept
There are a bunch of moving parts involved in this case that I really wasn’t planning on covering — but something quite amusing happened and I can’t resist. The basics are fairly straightforward: there’s an outfit named “Business Casual” that makes videos, apparently sometimes discussing historical events and whatnot. One part of the videos is that they create “parallax” images, in which they take apart old public domain photos and give them a sort of 3D feel (sometimes creating new images entirely). RT Arabic (the Arabic language wing of RT — i.e., Russia Today — owned by the state funded TV-Novosti) apparently used some snippets of these parallax images from a couple of Business Casual videos. Business Casual filed DMCA takedowns, causing the RT Arabic channel to get some copyright strikes, and even had the account briefly taken down, though it was then reinstated.
There are a bunch of nitty gritty details that aren’t worth going into, but RT Arabic counternoticed the DMCA takedowns, claiming fair use (and without going into the details, in at least some of the cases, they seem to have a fairly credible fair use claim, but I wouldn’t call it a slam dunk). Under the DMCA, once someone files a counternotice, YouTube will generally repost the videos (and remove the strikes) if the copyright holder doesn’t sue within 10 days. Business Casual found a copyright lawyer and sued TV-Novosti for copyright infringement.
That’s all normal enough. But, a month and a half later, the company also sued YouTube itself, arguing that YouTube directly infringed its copyrights as well. That seems like a questionable move for a whole variety of reasons.
The case against TV-Novosti has continued, with the judge basically not being impressed by the fair use arguments. I think a stronger fair use argument was there than the judge allowed, but as I noted, it’s not a slam dunk and the ruling seems perfectly fine. For what it’s worth, both sides then had their lawyers withdraw. Business Casual replaced its lawyer with Ron Coleman, who many, many years ago did some useful and impressive work on free speech, but went deep into Trump cultist territory and is now mostly known for filing nonsense, anti-speech, culture war bullshit. TV-Novosti appears to have replaced its lawyers with… no one? And decided to just start ignoring the case, leading Business Casual to seek a default judgment, which it seems likely to get. That’s all fair enough.
The case against YouTube, as expected, went nowhere. The judge dismissed it pretty easily. Even if TV-Novosti was infringing, the idea that YouTube was a direct infringer is nonsense. Professor Eric Goldman had a writeup of the ruling back in March. There were some oddities in the ruling, but it was clearly correct on the law. Once again, after this ruling, the company’s lawyer withdrew (suggesting a disagreement over strategy) and was replaced with Coleman.
Business Casual / Coleman then repeatedly asked the court for extensions in order to file an amended complaint. Coleman mentioned in some of these letters that the main reason for the extension request was “because the health of the plaintiff’s principal, Mr. Edson.” The most recent such request came on August 16th, with Coleman noting:
The reason for this request, as well as its belated timing, is the deteriorating health of my client.
Mr. Edson, Plaintiff’s principal, suffers from severe bilateral tinnitus, a condition that causes extremely loud and constant ringing in the ears. He is in agonizing pain and cannot function at this time. I expected to receive my client’s feedback and approval on the reply submission at the end of last week, but he simply has been unable to operate.
Anyway, something else happened on August 16th.
That is, on August 16th, the same day his lawyer was telling the court that Edson “cannot function at this time,” Edson had posted a nearly two hour long, highly produced video on YouTube all about the case, complete with (I shit you not) a Vladimir Putin lookalike trying (poorly and inaccurately) to explain copyright law. Most of the video is a very healthy looking Edson, complete with very dramatic concerned looks, spewing a very passionate, but dubious, explanation of the case. If you wish to submit yourself to torture you can watch the whole video. I did. Edson makes a very emphatic case for his very, very misinformed beliefs about (1) copyright law (2) YouTube deliberately colluding with Russia and… some other nonsense, including that “YouTube is not an American company” because it doesn’t “stand for American values.” Almost everything in the video is, at best, extremely confused about the nature of copyright law. Multiple times while watching the video I had to mutter “that’s not how any of this works.”
Just for example, at one point, he notes that he emailed YouTube execs directly, after his case was happening. YouTube execs, quite correctly, noted that since he was currently a party in a lawsuit against them, he had to only talk via their lawyers, and not try to communicate directly. That’s, uh, kinda basic stuff — but he tries to suggest it’s all an example of how evil Google is.
Also, he attacks the very correct argument that YouTube made as part of its response to his lawsuit: that his demand that they takedown entire channels, full of non-infringing works, raises serious 1st Amendment issues. It does. I mean, there’s a whole big important Supreme Court case all about that fact. But Edson acts as if this is crazy talk. He’s wrong.
He’s also very confused about the reasoning behind YouTube’s defense, which in part notes that under the DMCA it wants to see cases where there are credible fair use claims fully adjudicated before it recognizes someone as a repeat infringer. That’s the correct stance. It’s one that is protective of free speech (contrary to Edson’s claims in the video that YouTube is somehow against free speech values), because it makes sure that the judicial system has determined if something is truly infringing before ordering the speech suppressed. (Not to mention that he’s wrong about the appeals process and what it means for a case to be fully adjudicated, but that’s a smaller point).
He also makes some pretty incendiary claims insulting the judge in the case, calling YouTube’s lawyers “pathological liars” with “no regard for the truth.” He also appears to call them “evil” in a overly dramatic (and laughable) moment in which he goes from black-and-white to backlit color, and stands up from behind a desk while poorly dramatizing anger and saying “evil will not prevail.”
Anyway, I had seen the video before looking through the docket, and originally wasn’t going to write anything about it, because the video is just so wrong about so much (though, of course, many of those watching it are taking it as accurate despite how misleading it is and how incorrect on the law it is). But then, in looking at the docket, I saw that the very same day that this two-hour, very highly produced video of Edson dramatically misrepresenting many of the key elements of his case, and standing up and screaming about how evil YouTube is and how he’ll never back down… his lawyer was filing a request for a time extension insisting that Edson’s health was so bad that he was “unable to operate.”
YouTube’s lawyers noticed that too.
And, the very next day, they sent a note to the judge highlighting this, well, discrepancy.
This is the third straight time Plaintiff has claimed that its CEO, Alex Edson, has fallen ill right around the time that a brief is due. See Dkts. 46, 51. While we would normally take the representations in Plaintiff’s letter to the Court at face value, we were surprised to see that yesterday – the same day as its belated request for an extension – Mr. Edson posted a lengthy video to his YouTube channel (available at https://youtu.be/4IaOeVgZ-wc) making a variety of baseless claims about this case and asserting conspiracy theories about YouTube. Mr. Edson, who does not appear in poor health, specifically targets Defendants’ counsel by personally ridiculing them, accusing them of lying to the Court, identifying them by name, and posting their photographs (see, e.g., clips beginning at 27:45, https://youtu.be/4IaOeVgZ-wc?t=1665, and 1:43:00, https://youtu.be/4IaOeVgZ-wc?t=6180, where Mr. Edson states: “If you guys are wondering how this possibly could have happened, and how a judge can get it so wrong, it’s because YouTube’s lawyers are pathological liars. These people have no regard for the truth. Put simply, YouTube has been successful in misleading the court.”).
Although it is unclear when this footage was recorded, it was posted yesterday, suggesting Mr. Edson has likely been busy finalizing it over the last few days or weeks while he could have been attending to the reply brief. We think it appropriate for the Court to consider this sequence of events in determining whether to retroactively allow Plaintiff additional time for a reply brief that it failed to file according to the Court’s deadline.
Just slightly after that was filed, the judge still granted the extension, though it’s unclear if he had seen YouTube’s letter by that time. Granting extensions is pretty standard practice here so it’s not surprising that it was granted. But, still, it can’t be a good look for Business Casual.
Meanwhile, Business Casual’s strategy seems to be to try to turn this into a battle in the court of public opinion, rather than the court of law. The organization has been trying to whip up social media fury about all this without much luck. It’s also been trying to get various politicians (like Ted Cruz and Josh Hawley) to pay attention and even called for the CIA and the State Dept. to investigate YouTube… because Business Casual is mad that YouTube applied its repeat infringer policy in a way that it doesn’t like.
He’s also trying to play up about how he’s being “shadow banned” and suppressed because the nearly two hour long rant isn’t getting as many views as he wants. Basically none of his tweets are getting any pickup, but who knows sooner or later maybe one of the politicians (or Elon Musk!) who he’s tweeting at will retweet him without understanding just how silly and legally deficient his argument is.
Filed Under: alex edson, copyright, dmca, intermediary liability, repeat infringer policy, takedowns
Companies: business casual, google, tv-novosti, youtube
Comments on “Pro Tip: If You’re Suing YouTube And Asking For More Time Because The CEO Is Sick, Don’t Post A Highly Produced YouTube Video Attacking The Ruling & Lawyers”
Too sick to show in court, not too sick to make long vidoes...
It’s like calling in sick only to show up on the local news that day trash talking your boss and co-workers. I can only assume that the judge missed the video because this sure seems like a pretty blatant case of lying to the court in order to get extensions on your case, and hopefully the next time they try to pull the ‘He can’t show because he’s too sick’ the judge will just point to the video and ‘insist’.
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So That You Dont Have To
Many people peruse sites like this to see the highlights of current events without subjecting themselves to torture. Your sacrifice is greatly appreciated. Thank you.
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“Many people peruse sites like this to see the highlights of current events”
Strange coming from the guy who routinely argues against the most basic facts presented in many stories, but sure.
Race to the next docket entry ...
What will it be?
Motion to withdraw by Mr. Coleman, or
Order to show cause filed sua sponte by the Court?
Listened to the entire youtube video and also went, “that’s not how the DMCA works”, “conjecture”, “citation needed”, over and over.
As much as I hate Russia Today, they do have a very decent fair use argument between stripping out the audio, using public domain derived images, and the short amount of time of each use – though obviously not a determinative analysis.
I asked for a link to the actual complaint to read. The channel deleted my comment.
Very serious, much educational.
They should dismiss their complaint before the attorney’s fees get dropped on their lap.
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“they do have a very decent fair use argument between stripping out the audio, using public domain derived images, and the short amount of time of each use”
I’m not watching the video myself, but… if the images are PD, there’s no fair use argument, they’re literally exempt from copyright.
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Though the images in question have been derived from PD sources, the resulting images are not in the PD and Business Casual holds the copyright to these new, non-PD images.
If someone re-edits, colorizes and then publishes “their” version of “The Night of the Living Dead”, this newly published version IS NOT in the PD and may not be freely copied and distributed by you or me or anyone but the copyright holder of said newly published version.
Orchestras playing Beethoven and releasing their recordings still have copyright for their recordings even though Beethoven’s music is in the PD.
Re: Re: Re: Copyright on derivatives of PD works
I don’t think that is entirely accurate.
You can’t simply take public domain works, make a slight alteration, and be certain of holding a valid copyright in the result.
Every republishing necessarily makes some creative decisions, even if they minimal. For instance, scanning or photographing a painting involves many decisions. Some may be fixed decisions and defaults made invisibly by the people that designed the equipment, but they are still creative decisions.
The use of the public domain work must be transformative, changing its very nature. That’s difficult to objectively specify and judges are going to make conflicting decisions, but simply making different technical decisions about how to republish a public domain work is unlikely to qualify as transformative.
In my opinion, this is much like the “Ken Burns” effect of simulating motion by smoothly changing the framing of a static image. The ‘3-D parallax’ effect is arguably not transformative, and that will be increasingly clear as “AI” does it automatically. You are still showing essentially the same image, without adding to the content.
That’s all normal enough. But, a month and a half later, the company also sued YouTube itself, arguing that YouTube directly infringed its copyrights as well. That seems like a questionable move for a whole variety of reasons.
As another commenter previously pointed out, YouTube assesses every single video uploaded to the site to decide whether it’s suitable for their “Made for Kids” offering or not, thus making editorial decisions as regards all of them, and thereby acting as a joint publisher. This does, therefore, make them legally guilty of direct infringement even though they have no control over what’s uploaded.
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That’s moderation and curation, like every DMCA and terrorism and maybe-we-don’t-want-this check.
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“YouTube assesses every single video uploaded to the site to decide whether it’s suitable for their “Made for Kids” offering or not”
There’s plenty of examples that show that they don’t really do that, though.
“thus making editorial decisions as regards all of them, and thereby acting as a joint publisher”
Not by any standard I’m aware of. Adding an age restriction (or not doing so) is still a form of moderation, and it’s established that moderating does not make you a publisher, as per the people who created section 230 literally saying as such.
“legally guilty of direct infringement even though they have no control over what’s uploaded”
…and that should be utterly terrifying for every person online. If YouTube can be held legally liable for things they didn’t do, why not you?
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There’s plenty of examples that show that they don’t really do that, though.
So a work made by a bot means the programmer can’t get a copyright because “they didn’t really make the art”? YouTube uses bots to make editorial decisions, and therefore YouTube makes editorial decisions. The fact the bots do a bad job doesn’t change that.
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That is not accurate, and even if true would not make YouTube liable under Section 230.
Look, i in no way intend to minimize theeffects of tinnitus, but lmao? Deteriorating health?
It’s like they picked something unfalsifiable for some reason. And then went ahead and blew it, good job.
RT being forced to register under FARA
Business Casual specifically mentioned that RT America had to register as a foreign agent under the Foreign Agents Registration Act, but the circumstances which forced them to register as such were apart of a politically motivated campaign against Russia taken under the Trump administration. News outlets like the ABC (Australia’s state broadcaster), Al-Jazeera (Qatar’s state broadcaster), the BBC (Britain’s state broadcaster), DW (Germany’s state broadcaster), the SBS (partly funded by the Australian government), France24 (guess who owns this one!!!!) or CBC (Canada’s state broadcaster) haven’t had to register as foreign agents. Say what you want about RT, but this is clearly not a consistent application of the law and was only done to punish RT for providing a different perspective.
Side note: In my opinion RT could easily be completely fucking demolished if people that oppose American military intervention were invited onto regular news channels, because those are the only segments I’ve ever seen on RT which have any sort of cogency.
There’s two cases here one against RT and the other against YT. Both cases are very interesting.
In the case against RT BC turned the image into a video using a parallax effect. RT chose to use BC parallax video over displaying the original image. Effort was put into transforming the image into something more visually appealing and BC should have been compensated. RT didn’t have to create their own parallax effect. It’s like having sheet music and performing it. Just because the sheet music is public domain doesn’t mean that the performance is as well.
WTF is this case against YT I can’t fully understand the case. YT is following the DMCA takedown process. YT was reluctant to take the video down because the allegedly infringing part was centred around a public domain image. Why is BC throwing a tantrum because of this go to court, fight RT and show YT the settlement?
The 32 copyright strikes per year he goes on to talk about is for people managing multiple YT channels. Guess how many channels RT has? 39. Less than 1 copyright strike per channel. That’s HARSHER than the three strikes system channels outside of the program get.
I don’t like the attempt from the get-go to sway my opinion with diminutive phrasing like ‘apparently’ and ‘whatnot’; it seems like the first paragraph could’ve been a cleanly objective introduction to the case, and I wouldn’t as much doubt how the rest of the article sways me.
I kind of felt bad for bringing this to your attention, but it seems it worked into a good post after all.
Have you watched the video?
Before writing stupid shit and presenting it as facts, get your information right. If you watch the explanation video you would see that the video was recorded before the brief was due (see 1:12:08 of https://www.youtube.com/watch?v=4IaOeVgZ-wc&ab_channel=BusinessCasual). Let’s say that he lied in the video and it wasn’t recorded July 5,2022 and closer to August 16, 2022. To make such an almost 2 hours video takes a lot of time, even if you have a large team that works non-stop and it would be impossible to finish it faster than at least 2 weeks before.
I watched the entire video, and while I don’t like RT, I’m kind of on their side for this. It’s crazy that your entire account can be wiped if a copyright holder can dig up 3 infringements within 90 days. It looks like RT was willing to cooperate at the beginning, but Business Casual forced their hand.
I would urge you to see the video in full, atleast nearing the end
Yeah this should’ve been clarified, as YouTube’s lawyers clearly haven’t, given that Business Casual has already filed similar cases way back since 2021 and would’ve likely had his team have ample resources in doing the research for the video even with the multiple extensions due to health issues.
I will say, bear with me on this as this seems ultimately minor, but what I find
kinda questionable that has been pointed out before is on the 17 minute mark about the claim of erasure of Business Casual’s logo and replacement of it with RT on the infringing bids.
This is plainly incorrect. The RT logo was appended/overlaid on top of the video, but the original logo is not literally digitally erased. The logo isn’t part of the original video he refers to begin with — just view it on mobile without full screen, or um, download it, and you notice that BC’s logo is part of the player UI, which exists for many big channels in general.
The fact that they double down on this logo being directly part of the vid on the next frames of comparison that they use in the video, while seemingly a minor editing issue, kinda is exactly my problem considering how this video is meant to make the most compelling case against YouTube and RT.
All in all, there are no sides to take here for obvious reasons. YouTube’s inconsistent review of copyright claims/DMCA is bad, but that’s kinda becuase copyright law/DMCA is already highly flawed, and at the same time the ramifications should BC win the case doesn’t guarantee that this would protect content creators as a whole either.
This is a great article! I have been following the YouTube case closely and I think this is a great tip.