Why I'm Suing YouTube.
This is a video that YouTube does not want you to watch. It’s also a video that I did not want to publish. For over a year, my team and I have been conducting an investigation — an investigation into the theft of our videos by a YouTube channel owned-and-controlled by the Russian government. But as our investigation unfolded, we began to realize that what we had uncovered was so much bigger than anything we could have ever imagined.
This is not a political video. Nor is it a fictional one — although, I wish it was. This is a true story. A story about YouTube’s intentional efforts to undermine the United States of America in collusion with the Russian government. It’s also a story about copyright infringement and YouTube’s desire to provide a safe haven for copyright pirates.
Now, before you click away, I know that copyright may not sound like the most exciting topic. I get that. But trust me when I tell you that is an important one especially if you create original content here on YouTube.
As this video will prove, executives at YouTube are turning a blind eye to brazen, repeated, and obvious infringements of our channel’s copyrighted videos in an effort to protect the Russian government’s YouTube channels. To that end, this video will also prove that YouTube has acted, and continues to act, at the direction of the Kremlin. Even if it means violating YouTube’s own Rules & Policies in the process.
As you will see in this video, a brazen copyright pirate has been stealing our videos for years. Upon learning about this about a year ago, I filed takedown notices with YouTube. The pirate received three copyright strikes and was subsequently terminated under YouTube’s 3-strike policy. Now, had this pirate been your average channel, well, that would’ve been the end of this story. But unfortunately, the pirate in this story is not your average channel — it’s the Russian government. Indeed, RT, also known as Russia Today — an entity that is owned-and-controlled by the Kremlin — has been stealing videos from our channel for years.
The only reason that we never knew was because they removed our watermark and then changed the saturation to avoid detection. But rather than apply its policies to Russia’s channels, YouTube has decided to do otherwise. Immediately after RT was shutdown following three copyright strikes from our channel, the Kremlin offered YouTube an ultimatum: bring back RT immediately or YouTube and Google would be banned from the Russian market. Less than four hours later, RT was back. Ever since caving to Russia’s orders, YouTube has since launched an attack against our channel, to destroy our copyrights.
As exposed in this video, YouTube has taken the unbelievable position of not only defending a pirate’s brazen theft of our videos, but in fact, YouTube is actually attacking the copyrights of our channel –– and by extension, your channel. According to YouTube’s lawyers, our videos are not “copyrightable” because they quote “consist entirely of public-domain images.” End quote. YouTube’s lawyers have even gone so far as to call our copyright claims against RT “misbegotten” and “dubious at best.” By the end of this video, I invite you to judge for yourself whether our claims are “misbegotten” and “dubious.” Now, if you’re a long-time fan of our channel, then you already know that what YouTube’s lawyers are arguing is simply not true.
Of course our videos are original. Our team spends thousands of hours creating stunning 3-D parallax visuals; visuals which have become a signature hallmark of our brand around the world. Also worthy of note is that the content stolen from our channel is protected by our copyright registrations which were granted by the U.S. Copyright Office. What I believe is perhaps most disturbing about all of this is that if YouTube is successful in its arguments, then YouTube will be successful in destroying the copyright protections not just for our channel but potentially millions of other content creators. Of course, YouTube knows this. They just don’t want you to know this.
To understand why YouTube is attacking the YouTubers who make YouTube, well, YouTube, you have to understand the larger picture. YouTube is at war with America’s copyright law. For over a decade, YouTube’s parent company, Google, has been quietly paying millions of dollars to prominent legal scholars to echo support for anti-copyright legislation. Or, as Google would call it, “progressive thinking.” Google handsomely pays its network of influential legal minds to preach its anti-copyright agenda to judges, politicians, and university students: all for the express purpose of trying to move public opinion toward what Google believes America’s copyright law should look like. As exposed by the Wall Street Journal in 2017, Google has a “wish list” of policy-related topics, a secret menu if you will, which it provides to respected legal professors.
In exchange for publishing academic research on America’s laws concerning, anti-trust, copyright, privacy, and other topics that directly affect Google, Google provides these academics with “research awards;” ranging from $5,000 to $400,000. When you read these Google-funded papers, you will find an unsurprising theme: they all promote legal opinions that support Google’s business model; weaker copyright protection, watered-down privacy laws, and more regulation; presumably, to make it harder for new startup incumbents to compete with Google. As Forbes put it, it is a “secret academic influence-peddling effort by Google to shape government policy to suit its business needs.” And the most insidious part? While this may be legal, there’s rarely disclosure. One study found that more than half of all Google-funded academic research concerning topics that directly affect Google, conveniently forgot to mention that their research was funded by Google.
And it’s not just academia. Google also funds a number of cleverly named “non-profits” with harmless-sounding names like The Center for Democracy and Technology, Public Knowledge, and even the venerable EFF. Over the past year of our conducting our investigation, I found it remarkable how these “charities” oftentimes appear before Courts in important cases that Google is not actually party to, but would be affected by. These organizations try to masquerade as “independent third-parties.”
But they’re not independent. They are, in fact, funded with millions of dollars from Google, oftentimes run by former Google lawyers, and make legal arguments that benefit, you guessed it, Google. If you’re still confused as to why YouTube lobbies for anti-copyright policies, policies that hurt its own alleged “community,” it’s because Surprise! It helps YouTube make more money. See, here’s the dirty truth that everyone at YouTube knows, but no one dares to talk about: YouTube. profits. from. copyright. infringement. And it profits significantly.
This is an open secret. You don’t have to look hard on YouTube to find boot-legged movies, entire episodes of TV shows like Family Guy with tens of millions of views, and other obviously pirated content. Why does YouTube turn a blind eye? Simple: because pirated content is not viewed as a liability at YouTube. It’s viewed as an asset. In fact, copyright infringement is the foundation of YouTube’s entire business.
And that is by design. See, contrary to what YouTube says publicly, YouTube does not care about copyright infringement. What YouTube cares about is its *perception* about caring about copyright infringement. This is not “my theory,” — it’s almost a verbatim quote from YouTube’s own co-founder, which was exposed in the infamous Vimeo lawsuit a few years back. By my calculations, YouTube profits several billion dollars, every year, from pirated content uploaded to the site. And that is on the conservative side.
Ladies and gentlemen, let there be no doubt: YouTube knowingly profits from copyright infringement. And it is, in fact, precisely this reason for why YouTube is lobbying to convince legislators to enact new laws. Laws that would make it harder for legitimate rightsholders — people like you and me — to shutdown the accounts of bad actors. Put simply: the harder it is to shutdown the accounts of copyright pirates, the more money that YouTube makes. Think about it. As a platform that relies on user-uploaded content, YouTube needs more content to continue growing: lawful or otherwise, it doesn’t matter.
In the eyes of YouTube, the only thing that matters is fueling the algorithm. YouTube’s executives understand this. It’s why YouTube considers watch-time as its most important metric.
At the end of the day, the name of the game is keeping you on the website so that YouTube can serve you with more ads. Reducing the amount of content available on YouTube’s website subtracts from this chief goal. It’s really that simple.
With this video that you’re watching now, I am blowing the whistle. Enough. is. enough. In my view, there is no difference between copyright pirates and the websites that seek to harbor them. It is time that YouTube finally be held accountable.
It is time that someone finally hold YouTube’s feet to the fire — to force it to live up to its own alleged principles. It is time that someone not only call-out YouTube for its willful corruption, but actually takes action to put an end it — once and for all. And so, as you may have heard, I have filed a lawsuit in the Southern District of New York. Two of them, actually. One against YouTube for refusing to apply its copyright policies to the Kremlin’s channels, and another against Russia Today; a proxy of the Russian government, for copyright infringement. These lawsuits are a big deal — the outcome of these cases will forever affect the copyright law in this country and most certainly the very future of the internet.
If you are a fellow content creator, please, I am pleading with you — pay very close attention to this video because the outcome of these cases will have a direct impact on your channel. How so? Well, if Business Casual loses, it will become virtually impossible for you to shutdown the channels of obvious copyright pirates who brazenly and repeatedly steal your videos – at least, not without first spending hundreds of thousands of dollars and years in litigation for each and every pirate. If this sounds insane to you or if you don’t believe me: buckle up, grab your popcorn, and get ready. Because as you will see, this is exactly what YouTube is trying to achieve. YouTube is trying to pull a fast-one, on all of us, in broad daylight. I will not allow it to happen.
Before we dive into the details and expose YouTube, on its own website, I just want to mention that you don’t have to take my word on anything that I mention in this video. I ask that you look at YouTube’s own publicly-available court filings for yourself. Okay, lastly, before we get into things, let me just quickly highlight the three principal allegations that I will prove to you over the coming hour with overwhelming evidence. Allegation No. 1: YouTube is attacking Business Casual’s copyrights to protect and advance the interests of the Russian Federation.
Rather than defend a content creator who makes original videos, you’ll see first-hand how YouTube has instead chosen to stand behind an obvious copyright pirate –– one that is not only funded-and-controlled by the Kremlin no less, but one that illegally downloads videos from other channels, erases their watermarks, and then removes the color from their videos, to try to avoid getting caught. Allegation number two: YouTube does not equally apply its Rules and Policies to all channels on its platform. In fact, as you will learn, YouTube actually has a secret off-the-books policy: a policy that is only available to the Russian government and other channels that YouTube deems as “special.” Under this secret policy, channels belonging to the Kremlin are not actually channels but rather, “content owners,” and therefore can receive up to 35 copyright strikes, every single year, without ever facing termination. Much more on this later. Allegation number three: YouTube is trying to make it harder for you to shut-down the channels of copyright pirates. As you’ll see at the end of this video, YouTube argues that it possesses the right to “sub-license” your videos; essentially granting YouTube the ability to basically do whatever it wants with your content.
According to YouTuber’s lawyers: when you sign-up for YouTube, YouTube can never be held liable for copyright infringement. Why? Well, YouTube’s position is that it can go behind your back and enter into licensing agreements with copyright pirates on your behalf –– including with, but not to limited to; Russian state-owned television channels, without your knowledge. Much less your approval. But it gets worse, because after providing pirates with a license to exploit and monetize your video, YouTube also argues that it’s entitled to then split the revenue from that pirated content on a 55/45 basis. But not with you, obviously. But rather, with the copyright pirate.
55% to the thief — 45% to YouTube — 0% to you. This is what YouTube is actually arguing; it is all in the record. As you can imagine, YouTube is terrified by our lawsuit; and rightfully so.
These unlawful policies enable YouTube to generate billions of dollars a year in illicit profits. YouTube knows that losing this case would establish a legal precedent effectively requiring YouTube to shutdown the accounts of millions of obvious repeat infringers from its website; just like the channels of those posting feature-length movies and Family Guy episodes that I mentioned earlier. YouTube is determined to make sure that doesn’t happen. Since filing this case, Google has been on a relentless crusade to get our lawsuit thrown-out at whatever cost necessary; even if it means lying to a federal judge — repeatedly — to protect Russia. But YouTube will not be successful. At the end of this video, I’ll walk you through YouTube’s Motion to Dismiss, point-by-point, and we’ll expose their arguments together. It’ll be fun.
Without further ado, let’s rewind to the beginning of this story so I can explain how this whole situation came to be. It’s the last day of 2020. I’m minding my own business, conducting research for our next documentary about Cornelius Vanderbilt. And then this happened. What you’re seeing on-screen is a television broadcast from a Russian state-owned outlet called “RT,” or more specifically, “RT Arabic.” If you’re a long-time fan of our channel, this may look familiar. That’s because it’s actually from our most recent documentary: J.P. Morgan: How One Man Financed America
For those of you who do not live in the Middle East, RT Arabic may not be familiar to you; it certainly was not to me. For context, RT Arabic is the largest news channel in the Arabic world. With tens of million of weekly viewers, its influence in the Middle East is unparalleled. RT Arabic broadcasted twenty-eight copyrighted scenes from our J.P. Morgan documentary — nearly a minute-and-a-half of our video — to millions of households via satellite, and, of course, through its YouTube channel.
Now, before going into the details of these infringements, it’s important that you understand the dark forces behind the infringer. See, RT Arabic is but one cog in a much larger machine — and, an insidious one at that. A machine whose wheels are greased with lies and whose product is hate. RT, also known as Russia Today, is Vladimir Putin’s propaganda machine. Those aren’t my words, but the words of the U.S. State Department,
Intelligence Community, amongst many other vocal critics. Even RT’s own Editor-in-Chief, Margarita Simonyan has referred to RT a “an information weapon to be used against the United States.” Okay, so, I added to the evil laugh track to the end there. But I digress. When it comes to Kremlin propaganda on YouTube, you don’t have to look hard to find all kinds of vile content from U.S. election conspiracy theories, to anti-Semitic tropes, to deadly Coronavirus disinformation — of which, there is a lot.
Make no mistake: RT is a Kremlin-funded operation with a singular mission: to undermine the interests of the United States of America. If you don’t believe that, just follow the money. RT receives hundreds of millions of dollars, or virtually all of its funding, from the Russian government. And that brings us back to YouTube. See, the Kremlin’s weapon of choice for disseminating its propaganda is not Twitter. Nor is it Facebook, believe it or not.
It’s YouTube. Unlike other social media platforms, where your posts get buried under a sea of subsequent posts, YouTube is different. YouTube videos are evergreen: they aggregate more traffic after their publication, not less. The U.S. Intel Committee is well-aware of this; as is YouTube. It’s why the U.S. government calls YouTube Russia’s "vehicle of choice” for spreading its propaganda.
So with that in mind, let’s get back to RT’s theft of our videos. RT used a third-party website to illegally-download our J.P. Morgan documentary. After ripping our video, RT then used a digital eraser to scrape-off our watermark — which they replaced with their own watermark. But they didn’t stop there. RT also went-on to display a banner, on-screen, telling their millions of viewers that the content being broadcasted came from their channel — not ours.
And not this would make it okay, but RT also never provided us with any credit in its video description, on-screen, or anywhere else. Russia Today did everything they could to pass-off our original video as their own. They also went to great lengths to make sure we’d never find out. If you look closely, you can see that RT removed the saturation from our video, sped-up certain parts, and even added a filter effect for good measure. For those of you watching who’ve been making videos for a long time like myself, you’ve no doubt seen these malicious tactics before –– perhaps in dealing with copyright pirates who’ve stolen videos from your channel.
RT implemented these changes for one purpose: to. avoid. getting. caught. They’ve never disputed this. Nor have they ever disputed illegally downloading our video.
I mention all of this for a few reasons. First, it tells you everything that you need to know about the bad actor in this case — a bad actor that we’ve been forced to deal with over for a year; not to mention spend hundreds of thousands of dollars suing, which is required under YouTube’s policy, which we’ll talk about later. I also mention it because it tells you even more about YouTube and its true colors. If this was any other channel, YouTube would have terminated this account. At a minimum, RT has materially and repeatedly violated YouTube’s Terms of Service.
But YouTube doesn’t care. Instead, YouTube stands behind RT; defending them. As you’ll see later, YouTube’s lawyers have the gall to argue that RT’s admittedly unauthorized use of Business Casual’s copyrighted material is somehow justified under the “Fair Use” doctrine. It is laughable on its face. I also mention this because it ties into how we discovered RT’s infringements. See, normally when someone steals a video from your channel, YouTube alerts you.
When you click on the alert, you can see how much of your video was copied, a link to the infringing video, among other resources. But because RT deliberately circumvented YouTube’s anti-infringement technology, we never received any such notifications. In fact, the only reason that we discovered RT’s infringements is because our Director of Animation just so happens to live in Morocco and speaks Arabic.
It was pure chance that one of our team members just so happened to be watching Arabic television when he stumbled upon the video that he personally edited. Immediately after finding RT’s video, he sent me a message. Like any other infringement of our content, I filed a copyright takedown notice with YouTube.
This is something that I’ve done many times before. Over the past decade of making videos, I’ve probably filed well over a thousand takedown requests with YouTube. Copyright infringement is nothing new, nor unique, to Business Casual. Just like every other big channel, we deal with copyright infringement all the time.
Nine days after receiving our takedown request, YouTube removed RT’s infringing video and applied a copyright strike to RT Arabic’s channel. Now, at this point — we thought that that was that. The situation was over, right? Nyet. About a week later, I received this email from RT’s Copyright Producer, Ms. Karyaeva Albina. Karyaeva appears genuinely confused as to why RT received a copyright strike from Business Casual.
Her email states that the content in question is “public domain.” She wants to know why RT Arabic received a copyright strike. Now, before going any further, it’s important to understand what she’s referring to here.
What does public domain mean? And, as also a follow-up to that: do you need to register your work in order to hold a copyright? To help answer these questions is the Russian President himself. Howdy Comrade and Hello Business Casual fans. It is me Vladdy Daddy! Let's talk about copyright and public domain. When you create something original, like a painting or a movie, and then you publish it, your work is instantly protected by this magical legal forcefield called "copyright." This is thanks to long-standing agreement called the Berne Convention, of which Russia is part of.
Under this international treaty, a copyright exists starting from the moment that that work is fixed, or in other words, when it is published — not when it is registered. In fact, the very essence of the The Berne Convention is that you do not need to register your work with any government because... copyright is automatic baby! Once you have a copyright, you are granted a temporary exclusive license to that content.
It's sort of like being your own oligarch. Now, bear in mind:a copyright is only temporary. Eventually, a copyright will expire and die. Just like in my political opponents! Am I right? :P Just kidding! When a copyright expires, it enters what is known as the "public domain." This simply means that anyone can now use that content because it is no longer protected by its previously exclusive monopoly. Thanks Vlad. Okay. So, RT’s "Copyright Producer," who ironically appears to know
nothing about copyright, is basically saying that Business Casual should not have taken-down RT Arabic’s video because our video — which, again they illegally-downloaded from our channel — is not protected by copyright. But that is where Ms. Albina is tragically mistaken. See, RT Arabic’s video did not use public domain images from a place like the Library of Congress. Had RT done that, well, that would have been fine.
But that’s not the case here. To understand why Business Casual’s videos are not public domain, all you need to do is give them a brief and casual viewing. To help explain how our 3-D visuals are produced, is the late J.P. Morgan.
Oh, hello there Business Casual fans! I didn't see you there. It's me, John Pierpont Morgan! Let's take a look at some copyrighted material that RT admittedly ripped-off from Business Casual's most recent documentary. What you see on screen is not just an image. If you look closely, you'll notice that it's actually a 3-D animation. Let me show you how this works. This scene was created by layering several different images on top of one another into a carefully constructed 3-D model.
After placing each image, and determining the appropriate amount of space between those images images, a virtual camera moves through the scene. This 3-D visual effect, known as parallax, is what provides Business Casual's visuals with its signature depth-of-field. This effect cannot be achieved by merely "zooming-in" or "panning" across a two-dimensional image.
Before a photo can be placed into a 3-D model, it must oftentimes be completely reconstructed. Business Casual uses digital paintbrushes to painstakingly draw new facial features for various characters. Like a new nose for a person's face, a new set of eyes, and so forth. It's as much an artistic process as a technical one.
For example, on the left-hand side of your screen, you can see a public domain image of myself from the Library of Congress. Notice the creases in this photo, the pixelation, the not-so-dark suit, and yes... I'll admit it, my less than appealing nose caused by my acne rosacea. Okay, now let's see what Business Casual's restored version looks like. Wow! Just look at this handsome fellow. Notice how the creases have been removed. The background has been darkened. Just look at those piercing eyes and vividly sharp pupils. And check out my suit. It looks like it was just pressed yesterday.
After completing the restoration process, the next phase can begin: image extraction. Business Casual begins by analyzing the scene specifically looking for people, buildings, and other assets that can be cut out using a digital pair of scissors. These assets will become their own separate images. For example, notice how this crowd shows several groups of people. Some of these spectators are closer to the camera than others. And so, Business Casual begins by extracting this first group of people from the image. This becomes layer no. 1.
The next group of people are then extracted, becoming layer no. 2, and so on. After cutting out each layer, each of these images are then placed on top of one another. This process is known as layering. It is not only extremely time consuming but requires tremendous creativity.
If the images are too far apart, the 3-D effect becomes distorted. On the other hand, if the images are too close together, the optical effect is not as pronounced. And because no two scenes are ever the same, Business Casual spends a great deal of time manually tinkering with the optimal distance between the images to achieve the best 3-D result. After each layer has been placed, the final phase can begin: animation.
Animation is the process of moving a virtual camera through the 3-D model. Sort of like how a director moves a camera on a movie set by using a camera track. By moving the camera, you can see what was once a 2-D image "come to life" right before your eyes.
If a picture speaks a thousand words, parallax speaks a million. But business casual goes even further than this, oftentimes combining several different images, from different eras, to create entirely new works of art. For example, this crowd that you see was never actually present before me. Indeed, this crowd was cut-out, or "photoshopped," from a different public domain image — one of Teddy Roosevelt giving a campaign speech in New York in 1905. I wasn't even in New York when this photo was captured. I was vacationing in Monte Carlo in 1912.
Business Casual combined two completely different photos, from two completely different time periods, and place them into one 3-D model; creating an entirely new and original scene in the process. Thanks, J.P. So, surely this highly-creative and original production process is more than you need for warranting copyright protection, right? Well, according to YouTube: no. Or should I say.. . Nyet. Indeed, all of this just isn’t enough for YouTube.
According to YouTube’s law firm, Wilson Sonsini, Business Casual’s production process that J.P. just described is insufficient as a matter of law. Indeed, according to YouTube, our videos are simply unoriginal and “not even copyrightable to begin with.” Don’t believe me? Let me show you a few quotes from YouTube’s lawyers, as well as a couple from Russia’s [lawyers], narrated by Morgan Freeman. "The only 'originality' that Business Casual claims is the way that those images were displayed." "Even if RT copied content from Business Casuals videos, the content is not copyrightable to Plaintiff to begin with. Or, at least, RT has a very strong copyright-ability defense. RT also very likely has a very strong Fair Use defense."
"Only a few seconds worth from 3 of RT's thousands of videos are in dispute, and those momentary segments consist entirely of public domain images." "Business Casual's videos use numerous century-old public domain photographs." "RT Arabic's use of short video snippets of historical public domain images and nothing else from business casuals videos was fair within the meaning of U.S.C 17 §107." Okay, so, full disclosure: the real Morgan Freeman was slightly out of our budget for this video. But he does sound like him right? Anyway. Just for fun, try covering up the names of the attorneys from these quotes and see if you
can figure out which are working for the Kremlin and which are working for Google. Good luck. Indeed. Lawyers on behalf YouTube and Russia are each arguing to a federal judge the same talking points: that our videos, here at Business Casual, are unworthy of copyright protection. YouTube’s alignment with the Kremlin is not just appalling. It’s blood-boiling. YouTube’s false and misleading claim — that our videos are “unoriginal” is not just a brazen lie, and an obvious one at that — it’s an insult.
It’s an insult to our team of editors who work around-the-clock to make original content for YouTube’s platform. Not to mention, an insult to every other creator in the YouTube community. Most egregious of all, YouTube’s lawyers aren’t just trying to mislead anyone. They’re trying to mislead one of the most experienced and respected federal judges in America. Worse yet, YouTube is doing it to protect Russia. If you’re wondering why, the answer will become evident in the coming minutes.
Hint: it’s about the money. By the way — should YouTube try to walk back its comments by issuing a statement after this video is published saying “oh, we had no idea,” or “our attorneys had a misunderstanding,” you should know that I provided YouTube’s legal team with countless screenshots and recordings showing how our videos are made: scene-by-scene. And I mean that *literally.* I sent YouTube a Google Drive folder with 28 screen recordings of our raw Adobe After Effects files. These recordings show how each of the 28 scenes that RT infringed are made: *layer-by-layer. *
When YouTube made these false statements to a federal judge, YouTube knew very well that our videos were not “mere public domain images.” I wish I could say that YouTube’s lying stopped there, but it doesn’t. My friends, we’re just getting started.
For example, when YouTube was asked for some context about RT by Judge Ramos, YouTube suggested that RT may not even be funded by the Russian government at all. Can I ask you something about TV-Novosti? I understand that it used to be, or it is, a state-owned station. So, I take it that it's a substantial business and it's not some teenager with a TikTok channel? So, Business Casual alleges that they're funded by the Russian government. I think there's some evidence of that. And I actually believe that there's a notice on YouTube's website that says that 'RT may be funded in whole or in part by the Russian government.' I don't know whether that happens to be true or not.
But yes — they are a massive content creator. They have 39 channels. RT Arabic is just one of their 39 channels. Wait a second, Mr. Mollick. YouTube "isn’t sure" about its own disclaimer which YouTube prominently slaps onto all of Russia’s state-owned channels? You know, the one that explicitly warns viewers about RT’s funding from the Russian government? Reallllllly, Mr. Mollick?
But anyway, moving on. As mentioned earlier, RT’s Copyright Producer, a woman named Karyaeva Albina, sent me email after we took down RT Arabic’s First Infringing Video. Karyaeva asked why RT received a strike. So, being the forward guy that I am, I replied a few hours later and explained exactly why I took down their video. Quote – “Karyaeva, the strike placed on RT is, indeed, legitimate.
Your video was a blatant rip-off of my company’s video. If you disagree, feel free to sue and we will happily you see in court.” To my surprise, Karayeva replied the next day. Quote — “Dear Alex, yes, you are right. I am terribly sorry about the use of your
material in our project. Due to an oversight and misunderstanding here, my colleagues used this fragment without your permission. In this respect, we are willing to make this right with you. We are ready to pull our entire project from circulation and remove your copyrighted material if you retract the strike.” A few hours later, Karyaeva sent me another unbelievably incriminating email. “Following-up on my previous email. I’d
like to add that my colleagues filed a counterclaim by mistake yesterday. So, please ignore it. Within 24 hours, Russia Today, to its credit, did the right thing and retracted their counter-notification. Side note: a counter-notification is basically a short message that you send through your YouTube dashboard where you explain your reasoning as to why you are disputing the takedown of your video. More on this later.
As of the day of making this video, RT’s counter-notification concerning its first infringing video remains retracted. As it should. And just like that: RT has a copyright strike. For those of you who are not content creators and may not be familiar with YouTube’s copyright policies, RT now has a very serious issue on its hands. And that’s because YouTube’s policy explicitly states: Quote — “If a user gets 3 copyright strikes in 90 days, their account, *along with any associated channels,* will be terminated.” After 3 strikes, YouTube provides you with a 7-day courtesy period. Once the courtesy period is over. it’s do svidaniya!
This is YouTube’s published policy. It is simple and straightforward: three strikes — you’re out. Unfortunately for RT, they have THIRTY-NINE channels, as confirmed by YouTube. Collectively, these 39 channels receive over FIVE BILLION views every year; representing the cornerstone of the Kremlin’s propaganda apparatus on the internet.
These channels are, without a doubt, the backbone of Putin’s propaganda machine. And here’s where things get really interesting. Unlike other policies on YouTube’s website, like its Terms of Service or Community Guidelines, which are agreements governed under the jurisdiction of California, having and enforcing a repeat infringer policy is a matter of federal statute. Under Title 17 Section 512, YouTube must “adopt and reasonably implement” a policy that calls for the termination, in “appropriate circumstances,” of channels that are “repeat infringers.” If YouTube fails to quote-on-quote “reasonably implement” its repeat infringer policy, then YouTube can be held liable — specifically, by forfeiting the DMCA’s safe harbor; which is sort of like a liability force-field if you will, protecting YouTube from lawsuits.
More about this at the end of the video. But for now, let’s get back to Russia. As mentioned, RT now has one copyright strike. Not great, but not terrible. (*wink*) After all, if RT can avoid receiving two additional copyright strikes within 89 days, then one of those strikes will fall off, and their 39 channels will be spared from termination. But, as would fate would have it, RT has been stealing our videos for years.
A couple of weeks after taking-down RT’s first infringing video, my team stumbled upon another infringing video that RT posted. This one infringed an entire scene, approximately 7 seconds, from our video about John D. Rockefeller, which is also our most popular video with over five million views. Shortly after discovering that video, we found — you guessed it — yet another infringing video. This one, a YouTube livestream, featuring nearly 9 minutes of our J.P. Morgan documentary.
To make a long story short: RT received 3 copyright strikes from Business Casual within 52 days. At this point, the Kremlin was beginning to realize that they had a major problem on its hands. With the shutdown of RT’s 39 channels looming closer by the day, the Russians were left with only one option to save their propaganda machine: RT had to muster-up a completely meritless “fair use” defense and file disputes, in bad faith, concerning its two other copyright strikes from Business Casual. As a reminder, the Russians already retracted their counter-notification concerning their first infringing video. Now, before going any further, it’s important that you understand the Fair Use legal doctrine and its role in the DMCA’s takedown and counter-notification system. It may sound complicated, but I promise you it’s not.
To help explain once more, is the Russian president. Howdy comrade. As I talked about earlier, a copyright provides you with a temporary exclusive license to your original creations.
But there is one notable exception to this exclusiveness, and it is called: fair use. Basically, fair use is a legal defense to copyright infringement. It allows you to legally use another person's copyrighted material, without permission. Now, in order for your use of another person's copyright material to be considered fair, hence the name "fair use," a court will consider 4 factors.
Factor no. 1: the purpose and character of your use of the copyrighted material. Put simply, did you transform the copyrighted material? If so, how much? And how? This is critically important. It's the first thing that the judge will observe. For example, consider this picture of a peaceful Ukrainian city before Russia's invasion.
Say that you want to incorporate this copyrighted material into your own artwork. A court will ask, did you add something new? Or is the original photo still the dominant work that is present in your version? The more that you transform it, the more likely it is that your version will be considered fair. For example, let me show you what this peaceful Ukrainian city now looks like after my "special military operation." As you can see, these two photos are now very different. This is a great example of a very strong transformation defense.
Factor no. 2 — the nature of the copyrighted material. In other words, is the copyrighted material historical in nature — or is it creative, like fiction? As a general rule, copyrighted works that are factual receive less copyright protection. Allow me to explain. Consider two movies: "The Hunt for Red October," a fictional American spy thriller about a Soviet submarine. And "First Man," a historical film about the United States being the first country to land on the moon.
First Man is a historical film. But it still receives the same level of copyright protection as a fictional movie, like the Hunt for Red October. Why? Because both works are creative and original works. Much in the same, Business Casual's videos might be about history, but its copyright protections extend to its beautiful 3-D visuals, which boast very strong copyright protection. Factor No. 3 deals with the amount of copyrighted material that you use.
The more of someone else's copyrighted content that you appropriate, the less likely it is to be considered fair use. Now, to be clear, that is not to say that using "just a little bit" of copyrighted content is okay. As YouTube's Help Center correctly states: One of the biggest myths about Fair Use is that there's a minimum amount of time you're allowed to use someone else's copyrighted work.
But despite what some people may think, there is no duration which you can use someone else's content that is automatically protected under Fair Use. When it comes to using other people's copyrighted material, remember this: "LESS IS BEST!" Factor No. 4: the effect of your use on the market. If your use of the copyright holder's material harms or usurps the market for the original work, it is very likely that your use is not fair. It's that's simple. So, in a nutshell, those are the 4 Factors of Fair Use.
Remember them wisely comrade. Thanks Vlad. Okay, so let's say that you make a YouTube video and you use someone else's copyrighted content. Before you publish your video, you go through the 4 Factors of Fair Use to diligently ensure that your use of the other person's material is fair. You are *not* a bad actor.
Your intent is not to infringe another person's copyrights to enrich yourself. On the contrary, your genuine intent is to enrich society with your unique ideas and criticism of their work. By the way, this is the genius of Fair Use. Without it, it would be impossible for people like YouTubers or newscasters to comment on matters like breaking news out of fear of committing copyright infringement. Because criticism is heavily protected under the fair use legal doctrine, you believe that your use is fair.
So, you go ahead and publish your video. The copyright holder, on the other hand, watches your video and disagrees. They think that you used too much of their video and that your use is not fair. So, they file a copyright takedown request with YouTube. In doing so, the copyright holder signs a sworn statement, under penalty of perjury, certifying that they are filing their takedown request in good-faith.
A couple of days later, YouTube expeditiously removes the content from your channel, as required by law. Well, sort of. Technically, YouTube doesn't *have* to do this but if it does not do so expeditiously, it can be sued. So, usually, YouTube complies. You then get an email saying that your video was "removed for copyright infringement." You also now have a copyright strike on your channel. But you disagree. You believe that your use was, in fact, fair, and that the takedown was wrong. So, you file a dispute, also known as a [DMCA] counter-notification, through your YouTube dashboard.
It's very easy. All you have to do is briefly type your reason for why you believe that your use was fair, and with just a couple of clicks, you hit "submit." Just like the rights holder who filed the takedown request, you also have to sign a sworn statement — under penalty of perjury — certifying that you are filing your dispute in good-faith. After filing your dispute, YouTube automatically forwards your message to the copyright holder. From here, the copyright holder now has 2 choices: file a lawsuit against you, or do nothing. If the copyright holder does nothing, YouTube will reinstate your content within 10 business days as required by the DMCA. Lawsuits are pretty rare. It's a real inconvenience, it's very expensive
and according to YouTube's own Help Center: it doesn't happen often. But if the copyright holder does decide to sue you, they must provide a copy of this lawsuit to youtube. And quickly. Specifically, within the 10 business day period after receiving your counter-notification. This is the law. YouTube will not reinstate your content if the rightsholder files a
lawsuit against you within this 10 day window. Now, here's the important part to understand about this whole thing: until you are held liable in court for copyright infringement — which can take the rightsholder years and millions of dollars to accomplish — you do not have a strike on your channel. Why? Well, because per YouTube's policy, the burden of proof no longer lies with you, but rather, with the rightsholder. Now, in this example, neither party is being malicious. The copyright holder genuinely believes that you committed copyright In this case, TV-Novosti has submitted counter-notifications, infringement and you genuinely believe that you did not. Both parties are acting in good-faith. But, unfortunately, that is not always the case. Bad actors like RT are abusing
the DMCA by filing laughably false DMCA counter-notifications in obvious bad-faith after receiving 3 copyright strikes. Why are bad actors like RT doing this? Well, because, as mentioned earlier, YouTube's policy is "three strikes you're out." If the bad actor does not dispute their status as a repeat infringer, YouTube will terminate their account. Much more on this in the coming minutes. YouTube would later argue in its motion to dismiss that when RT filed its counter-notifications, RT's copyright strikes were basically "reclassified" from strikes to "allegations of infringement," therefore the repeat infringer is not actually a repeat infringer, but rather, an alleged repeat infringer. In a conference call with Judge Ramos, here's how YouTube's lawyer explained their position: In this case, TV-Novosti has submitted counter-notifications, under penalty of perjury, disputing Business Casual's claims that an infringement occured.
Now, I understand that with respect to one of them, TV-Novosti withdrew one of the counter-notices, That's true. But that's only with respect to one of their videos. For two other infringing videos, they submitted counter-notifications and never withdrew them. And I suspect that the reason why your Honor, is because, even if they copied content from Business Casual's videos, the content is not copyrightable to Business Casual to begin with.
Or, at least, RT has a very strong copyright-ability defense. RT also very likely has a very strong fair use defense. Which is something that is being litigated in the related case. [...] We are not judge, jury, or executioner. And the DMCA does not require us to be judge, jury, and executioner. That wouldn't be appropriate. In this case, we have one user who has submitted three takedown notices, with respect to just a few seconds worth of content.
And those takedown notices are being disputed. It is absolutely appropriate in that circumstance to say: we don't know whose right, there are arguments on either side, go litigate your case, and then let us know how that turns out. YouTube is nothing more, at least with respect to TV-Novosti's videos, than an automated hosting platform. At first glance, this explanation for why YouTube is not terminating RT’s channels may sound perfectly appropriate.
But there’s only one problem. Almost everything that YouTube’s counsel just said, is simply not true. At the end of this video, I’ll talk more about YouTube’s false and contradicting statements to the Court, but three things must be said here. First and foremost, what YouTube lawyer Jason Mollick conveniently forgot to mention, is that YouTube has actual knowledge of the fact that RT’s Third Infringing Video exploited the exact same 28 copyrighted scenes as RT’s First Infringing video.
This is a very important detail because, as you already know, RT already retracted their counter-notification concerning that admittedly infringing video. RT has already conceded that that video was a "blatant-ripoff" of Business Casual’s "copyrighted material" and that the copyright strike placed on that video was "indeed, legitimate." Now, you may be saying: "but Alex, hold up." If RT’s First Infringing Video used around a minute-and-a-half of Business Casual’s J.P. Morgan video, then how can RT’s Third Infringing Video exploit those same 28 scenes? I thought you said it was 9 minutes? The answer is because RT’s Third Infringing Video was a YouTube livestream, which looped 6 times. We have a 100-hour screen recording proving this.
YouTube has seen the recording. How do we know this? Because I sent the evidence to YouTube — and YouTube replied. YouTube’s response constitutes actual knowledge. As you can see on-screen: RT’s two infringing videos are pixel-for-pixel identical. Both exploit the exact same 28 copyrighted scenes from our J.P. Morgan Documentary.
There is no genuine dispute about this. Nor could there ever be. I mean, you can literally see the videos side-by-side: it is obvious. And yet, despite this fact, RT still — to this day — refuses to retract it’s counter-notification concerning its Third Infringing Video.
Why? Well, apparently out of fear that doing so would then classify it as a repeat infringer. So that’s the first thing. Secondly — YouTube’s counsel knows very well that our videos are not just “copyrightable,” but in fact protected by our copyright registrations granted by the U.S. Copyright Office. As mentioned earlier, we didn’t just provide YouTube with a detailed description of how our videos are made and mere copies of our registrations.
Rather, we sent YouTube 28 separate screen recordings. These recordings show the deconstruction of each of our 3-D parallax models in Adobe After Effects! You do not need to be an attorney, much less a copyright attorney, to recognize that Business Casual’s original scenes are protected by copyright as a matter of law. If YouTube’s lawyers do not understand this, then they either need new glasses or they need to go back to law school. Thirdly — YouTube is also well-aware of the fact that RT did not exploit “just a few seconds” from our videos.
That is just a flat-out lie. At least two of RT’s infringing videos exploited nearly a-minute-and-a-half of our copyrighted material: that is a far cry from “just a few seconds.” But putting that aside — even if YouTube’s claim was true — that RT “just used few seconds” of our video — it’s still blatantly misleading because it takes a tremendous amount of time to create those “mere seconds” of copyrighted material. So, with those three things in mind, let’s take a quick minute to examine RT’s “very strong fair use defense,” in the words of YouTube.
Russia argues that our case should be dismissed for several reasons. “RT should be allowed to profit from Business Casual’s videos because RT is a non-profit.’” Argument No. 1: RT should be allowed to profit
from Business Casual's videos because RT is a non-profit. Argument No. 2: Business Casual's copyrighted material was not the "dominant thing" shown on-screen. Argument No. 3: RT's "allegedly" infringing videos are critical of J.P. Morgan and Rockefeller, whereas Business Casual's videos praise their subjects; and thus RT's use is somehow "transformative" because it serves a different purpose. Argument No. 4: Business Casual's visuals are merely "public domain images."
Argument No. 5: Business Casual's videos are historical in nature, and thus, worthy of less copyright protection. Argument No. 6: RT is a news agency and therefore it's entitled to monetize Business Casual's
copyrighted material without permission from Business Casual or credit to Business Casual. Argument No. 7: RT "only used" Business Casual's copyrighted visuals, and nothing else from Business Casual's videos, like it's audio, script, etc.
With all the rubles in the world, this was apparently the best defense that RT could come up with. Pathetic. I can make a whole separate video about RT and its "fair use" defense, but in the context of exposing YouTube, I think it's worth taking just a minute here to address RT's arguments. First, being a “non-profit” does not give you the right to profit from another person’s copyrighted material.
Second, I’m not sure how RT can claim that our visuals are not the dominant thing shown on-screen, when, in fact, our copyrighted visuals are the only thing shown on-screen. You know, minus our watermark. Third, our videos do not “praise” their subjects — not that it would make any difference. By watching our videos on YouTube, you can see that we actually describe Rockefeller as a blood-thirsty monopolist who strangled his competitors and Morgan as a war-profiteer, like the time when he exploited the Union Army when it was desperate for rifles. Fourth, and I promise this is the last time that I’ll say this: our visuals are not public domain images! But don’t take my word on this: just ask RT’s own Copyright Producer who admitted, in writing, that our documentary is, in fact, our copyrighted material. Her words, not mine. Fifth, the fact that our documentaries relate to history is completely irrelevant. Our
copyright registrations protect our 3-D visuals, specifically the end-product; not any process or trade secret involved in making this content, as RT also claims. Our 3-D visuals are undoubtedly original creative works; and they are protected as such. Sixth, even if RT is a “news” agency, and that is quite the stretch, its argument is still futile because the infringing content in question is not actually news. RT’s infringing videos discuss the lives of J.P. Morgan and Rockefeller: both of whom died over a century ago.
That’s not news. That’s history! Per RT’s logic, every copyright pirate should just register as a news agency to protect itself from copyright claims. But, of course, that’s not how the law works. Seven, and this is my favorite argument, RT claims that their use of our copyrighted material is fair because they didn’t steal anything else from our video, like our script, our narration, and so on.
But, of course, RT’s listing of all the copyrighted assets that they didn’t blatantly rip-off from our video is just an attempt to distract from the copyrighted material they’ve already admitted to blatantly ripping-off. It’s almost like saying: “Your Honor, while it’s true my client robbed the bank’s vault, you should know that my client did not rob the bank’s tellers or the bank’s manager on the way to his getaway car.” Seriously, that’s basically what they’re saying. And, by the way, the most hilarious part about their argument here is that... it’s not even true!
If you look at RT’s script — an English translation of which they provided to the Court — you can see that RT did steal our script. Or, at least, part of it. There are several parts of their video which use almost verbatim quotes from our video.
But yes, those are RT’s arguments in a nut-shell: meritless. They’re so meritless, in fact, that YouTube’s statement about RT likely having a quote-on-quote “very strong fair use defense” goes from being clearly wrong to, dare I say, highly suspicious. Like, for one thing: why is YouTube supporting RT’s fair use defense? YouTube is not even named as a defendant in that separate lawsuit. Think about it. If YouTube wants to win its case against Business Casual, this is not an argument that YouTube needs to make.
I thought YouTube was “just an automated hosting platform”? Didn’t we just hear YouTube say that it would be inappropriate for YouTube to be the “judge, jury, and executioner”? If that’s the case, then why is YouTube telling a federal judge their legal opinion about RT’s “very strong fair use defense”? What happened to YouTube not being able to decide what is fair and what is not? When YouTube’s lawyer said this to Judge Ramos, he was certainly not asked for his legal opinion on the merits of RT’s defense. You can read the transcript for yourself at Google Moscow dot com. So, why is YouTube echoing RT’s fair use defense? Could it be because YouTube doesn’t want Business Casual to win its case against RT? I believe the answer is yes. Why? Well, we don’t have to speculate. The Kremlin has publicly threatened countless times to ban YouTube and Google throughout Russia if YouTube terminates RT’s channels. Now, I am sure that some of you may be asking yourselves: “Well, Alex, why would Russia even try to fight this case? I mean, obviously, their use of Business Casual’s content was not fair. So, why even fight?”
And I think the answer to that question is that winning this lawsuit was never RT’s goal. RT’s only goal is to delay their termination. And, in that, respect, they’ve been successful.
The Kremlin is simply trying to preserve its YouTube propaganda machine for as long as it can, which means doing everything within its power to delay being classified as a repeat infringer. Every day that RT skirts termination is another day that it can continue to undermine the United States. And that’s actually a perfect segue to explain... Why The DMCA Fails Rightsholders In Cases Like This. America’s takedown and counter-notification system is by no means perfect, clearly.
If it were, I wouldn’t have had to make this video. But, by-and-large, it’s a fairly decent system. I think it works well for resolving the vast majority copyright disputes between *domestic* parties — many of which are genuine disputes over fair use. Unfortunately, the DMCA complexly fails rightsholders in the 0.01% of extraordinary cases, like it does here. And that’s because, as mentioned at the beginning of this video, the pirate in this lawsuit is not your average pirate.
As a reminder: we’re talking about a YouTube channel that is owned-and-controlled by an authoritarian regime that poisons its political dissidents and is actively committing war crimes. The Kremlin does not care about the legal consequences of filing completely bogus counter-notifications, in obvious bad-faith, under penalty of perjury. You have to keep in mind: RT submitted its counter-notifications *in Russian* ... from Moscow … the U.S. don’t eve
2022-08-21 19:46
