meta: anyone in the mood for a copyright fight?

Submitted by Brian on September 20th, 2011 at 10:02 PM

So one of those hilariously-corporate-sounding corporations that goes around using the DMCA to get stuff off the internet has hit my youtube account, taking down big chunks of the last couple years of UFR clips.

I believe there's a strong fair use argument here and would like to issue a counter-notice, but that exposes me to a lawsuit so I'd like to know get I'm getting into. I've already emailed the EFF about my situation in the hopes they'll find it to fit their mission, but I know there are lawyers out there: can any of them offer non-binding non-legal disclaimered no one will sue you advice for me?

Comments

BucksfanXC

September 21st, 2011 at 8:52 AM ^

Yeah, this is very clearly them trying to push you around. You have to be willing to push back. As a lawyer, with some IP knowledge, I think you definitely have enough with which to push back. But (disclaimer alert!) you are always taking a risk, nothing is ever a sure thing, etc. etc.

rymgoblue11

September 21st, 2011 at 8:54 AM ^

Into battle we go. We all go in like Animal House. If that shit doesnt fly we march right the fuck out. br0.

Although, I dont know the source of the video. There is no creative copyrights to the game itself.

bronxblue

September 21st, 2011 at 9:53 AM ^

As others have noted - and yes, I am an attorney.  Actually, an IP attorney.  Not a particularly good one, but it's out there - this looks like a solid fair use argument.  Those DMCA notices are so easy to generate, and so onerous on the media provider if proven valid, that most just take down the offending material first and ask questions later.  Yes, go copyright protection!

The key issues are always two-fold:  (1) the amount of the copyrighted work that you sampled in generating your comment or critique, and if that "amount and substantiality of the portion used" was so great as to co-op or degrade the value of the whole work (in other words, you couldn't copy the whole game, cut out some commercials and some meaningless kick-offs, and say you are making fair use of the IP); and (2) if your sampling profitted you unfairly/to the detriment of the rights-holder.  With the first, you sampled small portions of the game to highlight some key moments, and while you are a for-profit site, the level of criticism you used probably protects you.  Also, putting shadow boxes and other distnguishing marks on the video probably helps, since it shows an active criticism by you versus simply showing a clip and being "haha FLOYDFLOYDFLOYD!" 

As for the latter, the NCAA/ABC/whatever would argue you are hurting their profits because you are "giving away" portions of the game that they could profit from later on via replays.  Your clounter would be that you are not re-airing the game (just small snippets), and furthermore you are providing a service that they seemingly do not provide otherwise (play-specific breakdowns for a single team).  This actually helps your argument for fair use, since this isn't a market any of the rights-holders seem heavily involved in - nobody at ESPN/ABC/NCAA produce a competing product, so they are not losing a piece of that market to you.

All of this said, it is definitely not a black-white issue.  You can seemingly meet all of the factors for fair use according to your peers at mgoblog, yet fail to meet them in court.  And as usual, lawsuits are expensive - if it is a legit media company sending the notice, they are probably ready and able for a fight.  As others have noted, find someone who practices in this area (while I am a bar member in MI and NY, I don't really practice law in the classical sense) and can lay out the pros and cons. 

Good luck Brian.  Feel free to e-mail me if you have any questions, though it sounds like other people on the site are equally strong on this topic.  In general, I would say reach out to the EFF and also follow up with Youtube - they need to provide you with some information about who filed the DMCA, which might help you figure out if they are a legit company or a troll.   

profitgoblue

September 21st, 2011 at 10:11 AM ^

This is great stuff Bronxblue.  I am not an IP attorney and unfortunately can't give you good technical legal advice about the black-letter law involved.  However, I can help you locate a good lawyer to work with in MI (if Bronxblue is unable to take it on pro bono - hint, hint).  I have a few contacts at big firms there who are so-called "Michigan Men" that might be interested in helping issue formal demand letters, etc.  Shoot me an email if you're interested.

The best advice I can give is that, once you start weeding into the world of figuring out how to fight back, if you encounter a lawyer on the other side make sure you have a lawyer as well.  Don't try to deal directly with lawyers because they will (1) poo-poo you, and (2) act high-and-mighty and work hard NOT to help resolve things.  Lawyers love preying on non-lawyers in these kinds of disputes.  Heck, I'll make a phone call for you if you encounter an a--hole attorney.  Just let me know - I love f-ing with other lawyers, if only because most of them are tools.

 

Patent Pending

September 21st, 2011 at 11:11 AM ^

I second bronxblue's breakdown.

Yes, the fair use doctrine 'should' apply based on the information provided. BUT... you have to take into account the potential costs involved if you want to go down that road.

It is frustrating when you feel you're being bullied, but sometimes it's simply better to limit your potential liability than to risk your livelihood because armchair-attorneys want you to fight the power.

bluebyyou

September 21st, 2011 at 11:30 AM ^

I am also an IP attorney but deal exclusively with the patent side of the business.  Bronxblue gave you some good advice and I would listen to him.  IP challenges are rarely inexpensive to pursue, win or lose.

I know of one firm in Ann Arbor which is exclusively an IP shop.  They are a satellite office of a very large IP firm in Chicago.  The name of the firm is Brinks, Hofer, Gilson & Lione, and they are on Main Street.  They have about 20 IP lawyers in Ann Arbor.  I have worked with a couple of the people in that office, although not for a while.  The attorney I know  locally is a Michigan alum and I would be happy to give you particulars if you want to go that way.  I also assume you can find my email address through my user name.

Lampuki22

September 21st, 2011 at 11:12 AM ^

Ad agencies and advertisers get into DCMA/Copyright squabbles all the time.  I've dealt with these issues before. Insurance policies and common sense dicate that I can't give legal advice to third parties, and certainly would not do so on a blog.  

FWIW I wouldn't hang my hat on a fair use defense (due to Factor 3 being unsettled) but where you are linking to existing content and not posting/embedding you have an argument there.  I'm not aware of any successful challenges to simiple linking.  These matters usually settle out with some sort of a cease and desist agreement. 

When you hire a lawyer, and you should, look for one in Chicago, NY or LA.  Michigan-based lawyers don't know much about stuff like this and if they say they do they are lying.  It's a matter of volume. 

I can recommend Brian Heidelberger at Winston & Strawn, Chicago (although he is an IU grad). 

profitgoblue

September 21st, 2011 at 11:28 AM ^

I agree with everything you say.  But Brian is not Big Corporation ABC with deep pockets to hire a firm like W&S.  We lawyers that enjoy this Blog need to find a way to help out in whatever way we can as long as within ethical guidelines.  If someone with expertise that you mention wanted - not meaning to put you or anyone on the spot - they could probably provide some hints as to how he could proceed without establishing any kind of attorney-client relationship or violating any ethical axioms.  Malpractice coverage is a non-issue here since there would be no formal legal advice given (use formal disclaimers, etc. if necessary).  Friendly advice is always acceptable.

If anyone is interested, email Brian.  (Please do not take this post as pressuring anyone - I just wanted to make a point that people can provide tips/ideas without providing formal legal advice).

bluebyyou

September 21st, 2011 at 11:45 AM ^

I would personally help Brian in a second if I felt confident in my abilities in the particular area  of copyright law that is the subject of concern.  This is one of those times where the best, and potentially least expensive course of action, might well be to talk directly to someone who is a dedicated copyright attorney at the outset.

Sextus Empiricus

September 22nd, 2011 at 11:06 AM ^

Thought Equity Motion is a tool for the greedy fat cats who make their living off the childhood dreams of football glory and American love of the sport. 

Wiki -

Thought Equity Motion works to increase the value of video content through its technology platform and licensing services. The company works with more than 400 rights holders globally, including BBC Motion Gallery[1], Paramount Pictures[2], Sony Pictures Entertainment[3], National Geographic[4], The New York Times[5], and the NCAA[6]

This has effectively shut down the UFR for this week.  How does this help College Football? It's all about the money. 

Walter Camp is not pleased.