from the legal-bully dept
Last month we had a post about wolf kink erotica writer Addison Cain (pen name) and her abuse of the DMCA which we had first written about in May, but which came up again after YouTuber Lindsay Ellis did a fantastic video analyzing the entire case. If you haven’t seen that, here it is:
The reason we wrote about it again last month was that after Ellis posted her video, a lawyer named Tynia Watson had sent Ellis what appeared to be one of the stupidest legal threat letters I’ve ever seen (and I’ve seen a lot). Ellis only revealed a brief portion of that letter, but that was enough.
Now, in a new video, Ellis describes all of the nonsense that has happened since then, which goes super deep in the weeds on a variety of things. You can watch the whole thing here:
I’m not going to go over everything in the video because (1) you should watch it and (2) a bunch of it is super crazy and I don’t even want to start to think about figuring out how to explain all of the background necessary. Instead, I’m just going to focus on the legal threats of Tynia Watson, who is, somehow, an actual lawyer, meaning she should fucking know better than to send such bullshit conspiracy-theory laden emails to basically everyone.
As we noted, the original letter from Watson seemed to be claiming both copyright infringement (on the basis that Ellis quoted a few short segments in an obviously fair use manner) and “numerous false statements” that I could see no evidence of. In fact, Ellis’ reporting got me to go back and read through a whole bunch of documents in one of the lawsuits that the video was about, and discover how Cain had insisted, repeatedly, that it was her publisher who filed the lawsuits and she had nothing to do with it — though in discovery in a different lawsuit, it came out that Cain was in the driver’s seat through much of this, telling her publisher to send the (bogus) DMCA notices, and then later telling her publisher how she was going to “hide behind” them. In fact, Cain got dismissed from one of the lawsuits on the basis that the DMCA notices were all sent by the publisher. That’s kind of a big deal.
Anyway, Watson then started sending more threat letters, including to Patreon and YouTube, to try to get the video taken down. Any real copyright (or defamation) lawyer should be embarrassed that Watson is also a lawyer, because these letters are… bad. You can see them in the video (so I don’t have full copies to post here, as I normally would). First, Watson sent a takedown to… Patreon. Even though the video was hosted at YouTube. Ellis, like many YouTubers and podcasters, uses Patreon as a revenue source, but there’s little reason to target them for copyright infringement other than being vindictive. Patreon told Ellis to go through the standard counternotice process, but did ask her to remove the link to YouTube from her Patreon post for the requisite 10 days under the DMCA to retain its safe harbors (and then relink the video). But then it also told Ellis that if this did go to court, it would totally back her up (FWIW, Patreon has some great people who work on this stuff, so I’m not surprised to see them stand behind their user like that).
Then, YouTube notified her that it had also received a takedown from Cain. YouTube went even further and said that it didn’t see how the video was infringing at all, and had rejected the takedown demand. Ellis seems surprised about this and says that she’s never heard of YouTube not complying with a takedown, but it actually happens reasonably often. Despite all the mess with things like ContentID, YouTube’s legal team does take fair use seriously, and especially on high profile videos is pretty quick to push back on censorial thuggish bullshit takedowns.
Ellis then has a fun narration of the takedown letter that Cain sent to YouTube, which the company passed on. It’s… stunningly stupid. Here’s a key clip that I want to post here just to make sure that everyone can see just how incredibly stupid it is:
The work infringed is not “fair use”. My book is not public domain; it is a creative work, not a text book. The poster reads my books to degrade my work. This is not fair use of a copyrighted work, nor was this video a review of my work. It was a personal attack framed around two lawsuits filed against me personally in which the poster did not like the outcomes….
The power significantly transformed my original work, both by altering the work and by mocking it for the poster’s financial gain via YouTube and Patreon. Monetizing the video does not make this fair use.
Yeah. So. About all that. Fair use applies to copyright-covered works. If it were public domain, you wouldn’t need fair use because… it’s not covered by copyright. So that opening line is just… weird. Second, who cares if it’s not a text book? Fair use is not limited to text books. Whether it’s a personal attack (it wasn’t) is completely meaningless to a fair use analysis as well.
But it’s that second highlighted paragraph that is truly stunning. Because a key point for a court determining whether or not something is fair use is, literally, was it “transformative.” And here you have Cain saying it’s not fair use because it was transformative. She even used the word transformative. Also, the fact that the video is monetized is also (mostly) meaningless. Yes, “commercial” works sometimes are considered to have a higher standard when it comes to fair use, but not by much, and tons and tons of stuff is still done commercially and is fair use. The main way in which the commercial nature comes into play is if the work is somehow competing in the marketplace with the original. And in no world is Ellis’ video competing with Cain’s books.
From there, the takedown demand goes off on a rant about people being mean to her on the internet and then claims that the video is defamatory. And, like, that sucks, and people shouldn’t be mean to Cain (or anyone) on the internet, and shouldn’t threaten people, but that’s got absolutely nothing at all to do with whether or not something can or should be taken down via a copyright claim. It’s pure performative emotional bullshit victim-playing. Also, the video is not defamatory.
The video then goes into a bunch of other stuff which is fascinating and insane and bad, but we’ll pick it up again later on in the story, after EFF steps in to defend Ellis and sends Cain’s lawyer a letter basically saying “c’mon, you know this is nonsense.” Rather than just walking away, the way a smart lawyer would, Cain’s lawyer doubles down in a manner I’ve only rarely seen before. Again, I don’t have the whole letter, but the parts that Ellis highlights are… whoo boy. A journey.
It argues that EFF is part of some giant conspiracy with Ellis and the Organization for Transformative Works (OTW). OTW is a great organization. We’ve written about them a few times, and once even teamed up with them on an amicus brief. But they’re not EFF. They’ve worked with EFF on some things where their work has overlapped, but… so what? Watson/Cain seem to think there’s a big conspiracy:
As your organization, the Electronic Frontier Foundation (“EFF”), is a close partner with the Organization for Transformative Works (“OTW”), and was clearly working with Lindsay Ellis on the Video, the EFF is aware that for over two years, my client, Addison Cain (“Ms. Cain”) has been involved in two lawsuits in which the plaintiff (Quill Ink Books, Limited) was supported by the OTW…
Huh? What does that have to do with anything beyond attempting to tie red strings to cork boards. It gets worse.
Regardless of what really happened during the two lawsuits, it is clear that you and your client were intent on spreading false allegations and outright lies about my client and the litigation in the monetized Video, which the EFF received a portion of the proceeds to produce.
Ellis did mention EFF at the end of her first video because that’s a nice thing to do when talking about bogus copyright abuse to try to silence critics, but it had nothing to do with the video. This is just random nonsense conspiracy theory claptrap.
Ms. Ellis could have easily condensed use of Ms. Cain’s book into a few paragraphs for illustration instead of reading from the book for over two minutes.
Er. She did condense it down to just a few illustrative paragraphs. As is kinda obvious from the fact that in her nearly hour long video, there was just about two minutes of text from the book. It’s bizarre to claim that Ellis should have done… what she actually did. And then complain about it.
It gets more and more unhinged, tying Zoey Ellis (the pen name of the plaintiff in the original case, who is no relation to Lindsay Ellis and has nothing to do with the creation of any of these videos) to all of this.
Zoey Ellis and her attorneys utilized numerous methods to obtain their objective to smear Ms. Cain’s name, but one common denominator has been their utilization of the OTW, of which EFF is a close partner…..
Though you failed to directly address our allegations of defamation in your letter, it is our opinion that defamation exists, and because the EFF worked in collusion with Lindsey Ellis to create the monetized Video, the EFF is also culpable for the copyright infringement and the defamation.
Just to be clear, again, though it shouldn’t need to be said: the EFF did not work with Lindsay Ellis on the video (nor did OTW, which is a totally separate organization from EFF). The video is neither defamatory nor infringing. And, even if it were (which it’s not), there is no way that EFF would be “also culpable” of either the infringement or the defamation (which, again, does not exist). We’re in pure crazy town.
And we’re not leaving crazy town any time soon:
The tie between OTW and the EFF and the history of abuse my client faced the last two years, makes the use of Lindsay Ellis, a YouTube/Patreon personality with public sway, suspicious in the least, particularly where you assisted in the creation of a monetized Video where both the EFF and Linsday Ellis could profit off copyright infringement and defamation.
Again, none of that makes any sense, either from a “this is how facts work” standpoint or a “this is how law works” standpoint. If an actual lawyer wrote this, it is truly embarrassing. It goes on and on and on in this fashion and those are only the clips that Ellis shares. The full letter was apparently 40 pages. I’m flabbergasted.
As Ellis points out, Cain/Watson are effectively arguing that there’s a vast fan fiction deep state working together to bring down… this one random author of wolf kink erotica. Because that makes sense.
Here’s a simple lesson that Cain and Watson might want to learn: after people call you out on bullshit DMCA notices… stop digging. Don’t file more. Don’t claim defamation. Don’t draw stupidly obviously bullshit conspiracy theories on the cork board with red yarn. Admit you fucked up, don’t do it again, and move on with your life writing terrible wolf kink erotica fiction.
Filed Under: addison cain, commentary, copyright, deep state, defamation, dmca, fair use, fan fiction, fan fiction deep state, lindsay ellis, omegaverse, transformative, tynia watson, wolf kink erotica
Companies: eff, organization for transformative works, otw, patreon, youtube