Google Deletes "PS Gay Car" - Help get it back online

New Media Rights recently hit a dead-end in an attempt to resolved what seemingly should be a routine issue: a band of hobbyist musicians, Fortress of Attitude, had a Youtube video that got misflagged by an automated Youtube takedown system. They were unfairly accused of violating Youtube's terms of service. Below, Pat Stango of Fortress of Attitude describes the 3+ month process of attempting to get his video human-reviewed and reinstated. Like our work with Jonathan McIntosh, Pat's story highlights area where Youtube's technology, support, and legal department can improve its practices.

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Hello people of the internet,

My name is Pat Stango, and I’m a member of New York City-based comedy group/ rock band “Fortress of Attitude.”  Don’t worry, we're not here to plug our upcoming shows or sell you some band merchandise. (Though we DO still have a few hundred T-shirts with our name spelled wrong, if anyone is interested.) Instead we need to let you know about a very difficult situation we’re going through with YouTube/Google regarding a music video being taken down unfairly. WAIT! Don’t leave yet. This situation could totally happen to you too.

On Nov 17, 2012, we uploaded our newest Fortress of Attitude video to YouTube, entitled “PS Gay Car.” You can view a (lo-resolution) version of the video here at Funny or Die.

We wrote the song several years ago, using the exact words of a mean note we found on our car one day and turning it into a rocking tune. Eventually we self-produced this music video, and after lots of hard work came away with something very fun with a pro-gay message. The “PS Gay Car” video caught on quickly, and was featured on several popular websites:

Thanks in large part to that media attention, the video gained 39,800 views in its first month on Youtube! 

And then a month later YouTube took down the video. Oh boy.

 

 

We received one form email from YouTube on December 19th, 2012, stating that the video was in Violation of TOU #4 Section H. Basically, they said that we had used some sort of outside service to gain fake or robot views, thereby violating their terms of service.

 

 

So, note up front: we 100% did not engage in any activity of that sort. First of all, our group policy is that robots are scary and will someday enslave us all, and therefore we do not engage in any activities involving robots—especially activities such as artificially inflating YouTube views.

Secondly it is very clear why the video had gotten its views. Popular websites posted the video, thereby putting it in front of their readerships, and it was spread around. As a group we did nothing more than email the link out to our mailing list, post it on our Facebook pages, and send it to these media outlets. Trying to create artificial views for our work is not something we would do, and it also seems like WAY too much work.

So obviously there was some sort of accounting mistake on YouTube’s part. And hey, they’re responsible for monitoring millions (billions?) of videos per day, so I get it: MISTAKES HAPPEN. They flagged our video incorrectly. Surely, I assumed, I could contact Youtube, explain the mistake, and they would put our video right back up.

 

 

Flash forward four months later, and that has certainly not been the case.

After receiving the initial email I searched for a way to contact YouTube/Google and it turns out, there really isn’t any way to do so. The closest I could find was the “Send Feedback” function on their site, but that elicited no response. Google has absolutely no protocol in place for users to plead their case.

Luckily, we then found the fine folks over at the New Media Rights, and after becoming emotionally moved by our case (I imagine they cried quite a bit), they agreed to contact Google’s legal department on our behalf for free.

Although they told me that YouTube very rarely reinstates videos in situations like mine, after I saw the well-reasoned email they wrote on my behalf, I was hopeful. New Media Rights spent a few pages explaining our case and showing why Google had obviously made some sort of mistake.

In response they got this:

 

 

On the downside, it was a form letter. On the upside, they actually got a response. Undaunted, New Media Rights kept responding and following up.  After a week of Youtube sending the same form letter, Youtube sent this on February 19th:

 

 

Progress! At least it wasn’t the same form letter anymore. And their response made it seem a real person was finally reading these emails. New Media Rights kept going, and I was hopeful...

 

To Youtube Legal:

This email is in response to the form letter received by support on February 19th in regards to Youtube user FortressOf Attitude. I hope this clarifies some issues. Is there anyone who can specifically attend to the points in our emails?

You are ultimately responsible for your traffic, so fully research any service that promises to promote or curate your YouTube channel.

No-one curated or promoted the video or the channel. It has already been in 100% control of Pat Stango (the user who runs the FortressOf Attitude account). 

YouTube cannot audit or certify specific 3rd party programs to verify that they comply with our policy. 

No non-organic promotion techniques were used. There is nothing to verify or certify.

If we determine that suspicious actions are being done by a specific entity, they risk being blocked from our service and accessing our APIs, and having any related accounts suspended.

The major point of our initial email is that Youtube's algorithm for determining suspicious actions, for whatever reason, made a mistake and flagged the video, P.S. Gay Car <http://www.youtube.com/watch?v=gOnnoTiX05w> inappropriately for a Section H violation. It has never been promoted or curated by a third party. No views have been falsified.

Again, Youtube has a legal obligation to enforce its terms fairly and accurately, so we're asking you to human review this error and fix it. 

As I said before, although this may not be of huge importance to YouTube, this is important to Pat to be resolved. The Section H violation email he received, explained that if a terms violation were to happen again, Youtube would delete their entire account. Since this first terms violation was a false flag, you can understand how this may be scary to a group that has spent time and money contributing to the Youtube community. They are afraid that if Youtube makes another "mistake" their account could be deleted at any moment.

Please human review my previous emails or the original emails with the extra explanatory details of this situation. I look forward to clearing up this situation amicably. You may contact me at support@newmediarights.org, via my cell phone at XXX-XXX-XXXX, or by replying to this email.

…until Youtube responded with this on March 7th.

 


Wait? What “reasons” were “previously stated?” We investigated further:

Hi legal,

While we appreciate that this letter was not a form reply, and we acknowledge YouTube's interest in keeping it's system clear of robot-generated views, I want to make it clear that there were no "reasons" stated for not restoring the content, only conclusions.

Our claim is that the video in question was falsely flagged due to a mistake with the Section H takedown algorithm. We assert that there was no service involved in promoting the Youtube channel or video. You reason (copied below) doesn't respond to this at all.

You are ultimately responsible for your traffic, so fully research any service that promises to promote or curate your YouTube channel.

Instead, it just suggests again that there was a service involved hired by Pat to artificially inflate the view counts of his videos.

We simply want a reporting of why this was flagged when there were no activities that violated the terms of service going on. A simple human review of the video's traffic sources will probably show very quickly that all of the traffic generated to the video was appropriate.

And that was over a week ago. That email on March 7th was the last thing we’ve heard from Google.

So despite New Media Rights’ persistence and best efforts for more than a month, so far they have received nothing more than automatically generated form responses that do not address any of the specifics of our situation. Which leads to two conclusions:

  1. Google has no human employees. They are all ROBOTS.
  2. We’re not going to be able to get this video reinstalled (and our good names cleared) without the help of the public.

So you might be asking yourself: “What’s the big deal about getting this silly video case resolved? Why should I spend my time on this instead of, I dunno, helping poor children in Africa?” To that we say, yes, if you need to choose between publicizing our unfair situation with Google OR helping to feed a poor child, definitely do the latter. But you can probably do both!

There are a few reasons why this case is so important to us. Firstly we are basically hobbyists, and we spent a great deal of time, effort, and our own money in making this project. All the actors in the video were paid, as was the owner of the car. As silly as it seems, the moderate success of that video was very important to our fledgling comedy group. View counts are an important tool in pitching media agencies, trying to land touring gigs, etc.

Even more importantly, YouTube's initial email also told us that if this were to happen again, they would delete our entire account. This is frankly terrifying, because that account contains several years of our work (videos, views, subscribers, etc) and since this first violation was obviously a mistake on YouTube's part, that theoretical second violation (and account deletion) could come at any moment through no fault of ours at all.

Basically, ours is a case showcasing how YouTube can delete the work and the accounts of their users on a whim, without any chance for users to plead their case. (Hell, without any chance to interact with a live human at the company.) Frankly, we think it’s crazy for a business, with millions of users and customers around the world, to act in this manner and to be so unreachable.

We’ve been told there are a lot of other people that also got mistakenly caught in this Section H filter on the same day. We feel bad for those people because they’ve had to pay lawyers $100s an hour only to get those same form responses from Youtube’s legal department. At least we found lawyers who would help with this for free.

And aside from all that, “PS Gay Car” is an extremely positive, fun video with a very pro-gay rights message, and it’s terrible that viewers don’t have the option to enjoy and spread it around on YouTube.

Therefore we ask you, oh nameless faceless readers of this rambling letter, to help bring this issue to a wider attention. Tell Youtube that you don’t think it’s right for them to delete their users’ work in such an unfair manner. SPECIFICALLY tell them you want “PS Gay Car” to be reinstated immediately. Tweet and Facebook this post! (We’ll be tweeting @Google and using the hashtag #PSGayCar on tweets about this.) And then, if someday “PS Gay Car” does get rightfully reinstated, please like the video and share with your friends. (If you want to.)

Sincerely,

Pat Stango, Gregg Zehentner, Scott Barkan, Clayton Gumbert

Fortress of Attitude • FortressOfAttitude.com

 

PS. New Media Rights put a lot of work into trying to get our video back up for free and even helped share the story with the press. They’re a great organization, and it would be awesome if you could support them by donating a few bucks so they can help other people like us in the future. 
 

 

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The Copyright Alert System and a meeting the Mayor of San Diego! - March 2013 Newsletter

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In this issue:

  • Understanding the Copyright System
  • New website content and educational guides
  • A meeting with the Mayor
  • Upcoming Events
  • Job opening: Staff Attorney Fellow


Understanding the Copyright Alert System:
Last week, a number of the major internet service providers in the United States, including AT&T, Verizon, Comcast, and Time Warner, began implementing the "Copyright Alert System." The system allows content providers like large media companies (i.e. Motion Picture Association of America [MPAA] and the Recording Industry Association of America [RIAA] ) to police your Internet Service Providers's networks for copyright infringement. This means they monitor Internet traffic, and when potential copyright infringement is identified, the copyright holder will send your IP address so that the ISP will notify you. From there, the ISP will engage in a series of escalating warnings and actions with internet subscribers intended to discourage digital "piracy."

You can read our new FAQ to learn more about how the new system may affect you as an Internet user, and how to ensure that the system isn't abused.


New website content and guides

We've been working on the NMR website by updating content and adding new educational guides.  We base our work on guides on input we get from you, our community, and the clients we serve, about the practical questions that creators and internet users need answered..

Our new FAQ about student's First Amendment speech rights in public high school. It includes topics like whether students can be censored for their speech on campus or off campus

We work so hard on helping folks that its hard to keep up with telling you about all the things we've accomplished.  To remedy this, we've updated our "About Us" page with a timeline of our accomplishments

We've also added a press page so you can keep up with our mentions in the media quickly and easily.
 

Meeting with the Mayor

On Friday, March 8, New Media Rights and tech startups from Ansir Innovation Center were invited to meet with San Diego Mayor Bob Filner to discuss the needs of startup tech companies here in San Diego. Art Neill represented New Media Rights, and shared the work we're doing with Mayor Filner. The group as a whole discussed the need to find ways for startups to better interface with the city, as well as various ways the City could foster its local startup community.


Upcoming Events

Meet with NMR at March Mingle in San Diego, CA on Wednesday, March 13th
New Media Rights will be at this year's March Mingle IX on March 13, 2013 from 7:00PM – 9:00PM. The event will be at ScaleMatrix at 5775 Kearney Villa Road, San Diego, CA 92123

Since 2004, March Mingle has brought together 100's of people each year from the San Diego tech community for a night of networking, food, drinks, and relaxation. Organized by the folks at San Diego Tech Scene, March Mingle brings together developers of all flavors together for San Diego’s annual “Technology Woodstock” or “Ultimate Geek Happy Hour.”  Hosted at a local venue and conducted without sales or technical presentations, you are invited to talk shop, trade war stories, and munch on finger food while enjoying the evening with San Diego’s finest technologists. Plus, there's a raffle with prizes.

A full list of all of the San Diego tech groups invited to participate can be found on the event's official site: marchmingle.com
 

The American Association of Law Schools Transactional Clinical Conference on April 5-6 in Austin, TX

New Media Rights' Art Neill will be speaking on the closing plenary panel at the AALS Transactional Clinical Conference in Austin, TX.  The conference is a great place for folks that work with law students in transactional clinics across the country to come together an learn from one another.

The National Conference for Media Reform, April 5-7 in Denver, CO

NCMR is a bi-annual conference attended by thousands of folks in media reform field, and is taking place in Denver, CO this year.  Visit their site for more info 
 

Job Opening: Staff Attorney Fellow

We're excited to announce we have a new position opening at New Media Rights as of today for a Staff Attorney Fellow!

Please share this information with any attorneys or recent law school graduates that have a passion for public interest and internet law.  This is a paid position.  The position is open immediately and we are accepting applications only until March 22nd.

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Job Opening: Staff Attorney Fellow

We're excited to announce we have a new position opening at New Media Rights as of today for a Staff Attorney Fellow.

Please share this information with any attorneys or recent law school graduates that have a passion for public interest and internet law.  This is a paid position.  The position is open immediately and we are accepting applications only until March 22nd.
 
Here's the details:
 

This is a long-term, full time, temporary position that may last up to one-year.

New Media Rights, a program of California Western School of Law, is seeking an individual who, under the direct supervision of the New Media Rights ExecutiveDirector, will supervise and manage student legal clerks while providing transactional and preventative legal services in the fields of intellectual property, media, and cyberlaw. The individual should have a J.D., be a member of the California bar or have immediate plans to take the California Bar, and have an interest in IP, media, entertainment, and communications law.  The ideal candidate will also have strong computer skills as well as a basic operating knowledge of marketing and public relations, website and database management, and non-legal project management.

 
The Staff Attorney Fellow would 
(1) Supervise students in providing one-to-one legal assistance to individuals, draft educational guides, and draft public policy comments to regulatory bodies on Intellectual Property, media, and communications law related issues. 
(2) Speak in the community to consumers and creators about digital and internet rights related issues. 
(3) Assist in meeting the objectives of any grant awards as well as draft and submit grant applications. 
(4) Strategize and execute NMR's social media and web presence. This includes managing NMR’s contact database, and social media profiles.
(5) Manage NMR's intake process and determine which cases are worth pursuing.
 
Qualifications:
 
● J.D. and bar passage or immediate plans to take the California Bar required
● Prior experience with transactional work in one or more of the following legal areas: intellectual property, cyberlaw, entertainment, media & communications law is preferred.  Litigation experience in these areas of law is also preferred.
● Legal or non-legal supervisory experience preferred. 
● Ideal candidates have additional non-legal skills that will assist with the administration of the Project. These may include: fundraising, marketing, design, website management, or video production. 
● Must be comfortable working independently with minimal instruction 
● Occasional evening and weekend hours necessary.
● Basic operating knowledge of Windows and Excel is required; and, must be highly proficient in Word, Google Apps, Facebook, Twitter, and website management.
 
How to Apply:

Interested individuals should provide 1) a cover letter describing their interest in and qualifications for the position, and salary requirements, 2) a resume, and 3) a legal and non-legal writing sample to: Art Neill, Executive Director of New Media Rights, at support@newmediarights.org by March 22nd, 2013. The search will continue until the position is filled.

 

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Internet User's Guide to the Copyright Alert System "Six-strike" policy - FAQ

Just this week, a number of the major internet service providers in the United States, including AT&T, Verizon, and Time Warner, began implementing the "Copyright Alert System."

 

What is the Copyright Alert System?

The system is an anti-piracy approach where your Internet Service Provider allows content partners, typically large media companies (i.e. Motion Picture Association of America [MPAA] and the Recording Industry Association of America [RIAA] ) to police the ISP's networks for copyright infringement. This means they monitor Internet traffic, and when potential copyright infringement is identified, the copyright holder will send your IP address to the ISP and request that the ISP notify you. The ISP will engage in a series of escalating warnings and actions with internet subscribers intended to discourage digital "piracy."

 

Does my Internet Service Provider have to participate in this system?

No.  This is not a requirement based on any law. Instead, it's an agreement that the large Internet Service Providers have voluntarily chosen to participate in. The existing law, specifically the Digital Millenium Copyright Act, already protects intermediaries like Internet Service Providers from liability and says they do not have to police their networks for copyright infringment. Nonetheless, ISP's have decided to participate in this program. 

 

If it's not required, why would ISP's monitor and police internet traffic?

There's a few reasons, but primarily because 1) many ISP's like Comcast and Time Warner are also large copyright holders and 2) despite the protections of the DMCA, ISP's want to make sure to avoid lawsuits from large media companies.

 

How does the "Copyright Alert System" work?

The policy may vary a bit from ISP to ISP, so you should keep an eye out on your email since some ISPs will be sending notice to internet subscribers about their policy.  You can see the approach some of the specific ISP's are saying by visting this post on Mashable.

In general though, the first time that ISPs find that your account has been used to download allegedly illegal materials from peer-to-peer networks, you will like receive an notification by email probably telling you you're doing something illegal, and providing basic "education" on copyright law. The second offense typically will be either a) another email notification that requires you to acknowledge receipt, or b) an educational call from your ISP.

The system continues to escalate on each notice.

The third and fourth warnings will likely require you to watch a video and confirm you've viewed it before getting online.  It may also be a simple redirect from certain web sites to an educational video.

For the fifth and final sixth warnings, ISPs range fairly significantly on their approaches.  Approaches range from throttling your bandwidth, to temporary suspension of internet access, to redirection to a new landing page, to a personal instructional phone call with an ISP representative.

 

What doesn't the Copyright Alert System do?

As of now, it does not appear that the Copyright Alert System will be used to get ISPs to provide your personal information to large media companies.  Large media companies should still need a subpoena or court order for that.

It appears the system is focused on tracking public Bittorrent trackers.  Lifehacker has suggestions about anonymizing Bittorrent traffic or making use of virtual private networks

 

Are there any problem's with the Copyright Alert system?

We think so.  The system highlights the uncomfortably close connection between ISP's and lage media companies, which are often one in the same.  It shows the kind of control that large media companies can exert over the internet.  

ISP's have no responsibility to do large media company's copyright policing for them, but they've chosen to get into that business anyway.

In addition, as with all anti-piracy systems, there are bound to be legal or fair uses of content that are misidentified as infringement.  

We'll be keeping a close eye on how the system is implemented by the various ISP's, and will be looking to make sure the new system respects legal, fair uses of content.

 

What if I receive a notice from the Copyright Alert System?

If you have questions about the notice you received, you can contact New Media Rights for an explanation or to help you get your ISP to remove the strike.

 

More information: Here's just a few articles on the new Copyright Alert System

http://www.forbes.com/sites/kashmirhill/2013/02/25/copyright-alert-system/

http://www.technologyreview.com/view/511841/the-six-strikes-copyright-alert-system-is-toothless/

http://lifehacker.com/5986961/the-copyright-alert-system-how-the-new-six-strikes-anti+piracy-program-works

Value free legal services for internet users like you?  Support them.

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Our 2012 accomplishments, and what we're working on in 2013

A summary of New Media Rights in 2012


New Media Rights continued its non-profit work providing free and dramatically reduced cost one-to-one legal services in Internet, intellectual property, media, and technology law. We renewed our mission to stand up to internet censorship and those who use legal processes to bullies independent creators and average internet users.

 

How New Media Rights grew in 2012

 

  1. We assisted 400 tech & media law inquiries (copyright, free speech, media, and internet law matters) with free or reduced cost legal services while utilizing an annual budget of less than $150,000.
  2. An example of one of the issues we worked on in 2012, New Media Rights helped reinstate the popular Buffy vs. Edward video after it improperly monetized and then taken down by YouTube’s Content ID system.
  3. We released over 13 hours of educational video that has been cumulatively viewed more than 100,000 times including a series of videos explaining copyright law and LAGD, a series that features advice from established developers on how to avoid legal problems in the industry.  
  4. LAGD got #1 spot on Reddit games. We put together a fundraiser to support this work and these videos where we raised more than $4,000.
  5. We worked with the EFF in the recent DMCA “anti-circumvention” proceeding and provided the direct evidence needed to secure important exemptions for smartphone users and independent creators.
  6. We provided more than 15 workshops in California to independent creators and Internet users.
  7. We educated 5-6 law students per semester [Fall, Summer, and Spring] in public interest internet law issues
  8. By providing specific stories to the Copyright Office, we helped protect users’ rights to jailbreak or root their mobile phones and the rights of video creators on YouTube. We partnered with other organizations like EFF to ensure these rights were protected for another 3 years.

 

Looking Forward

 

While we are able to accomplish so much with a small staff of two full-time employees along with a few interns, volunteers, and fellows, we have high hopes for what we are able to achieve in 2013.

  1. Helping over 400+ individuals around the world with internet-specific legal matters, especially with unjustified takedowns prompted by YouTube’s Content ID system.
  2. Sponsoring and organizing more than 10 workshops and community events throughout the San Diego region and throughout the United States about digital rights. For example, in 2013, New Media Rights was a sponsor of San Diego’s Start Up Weekend.
  3. Working on policy initiatives to reform copyright law in a way that helps the Internet continue to be a thriving force of information and distribution for users and independent creators. This includes commenting on the direction of the proposed “copyright small claims court.”
  4. Considering litigation on behalf of Internet users and creators to correct abuses committed by legal bullies.

 

Significant events of 2012

 

  • May 17 - NMR testifies before the Copyright Office in support of Jailbreaking and Video fair use exemptions to DMCA.
  • July 1st - Partnered with California Western School of Law. This partnership was beneficial because the school provides administrative support, so 100% of all donations now go directly to program and core work.
  • October 30 - Copyright Office announces two DMCA exemptions advocated for by NMR are granted. NMR attended and testified at the Office's May hearings in Los Angeles.
  • November 12 - Launched educational video series for independent game developers (LAGD), which includes over 13 hours of free, openly licensed video content.
  • November 16 - New Media Rights sponsors local innovation event - Startup Weekend San Diego
  • November 21 - Indiegogo fundraiser launched to expand our services for game developers. More than $4,000 raised.
  • November 26-27 - NMR testifies at Copyright Office hearing in Los Angeles on potential copyright small claims court. Our input was recently covered on The Register and Techdirt.

Significant press in 2012


You can see all of our recent press on our press page.

  • Cover of San Diego Citybeat – Dave Maass details New Media Rights’ fight to defend the rights of bloggers, musicians, filmmakers and programmers.
  • Joystiq – Joystiq editor Jessica Conditt explains the free legal services New Media Rights provides to independent developers.
  • Techdirt – NMR Executive Director Art Neill explains how a small claims court for copyright infringements may seem appealing, but could actually hurt independent creators more than help them.
  • Comics Bulletin – Shaun Spalding, attorney for NMR, answers questions about General Partnerships.
  • Penny Arcade – Shaun Spalding provides advice to independent developers are starting a new studio.
  • Ars Technica – Remix video artist Jonathan McIntosh details how New Media Rights helped him reinstate his remix video

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How we defeated Lionsgate's unfair takedown of Buffy v Edward, and our next battle

As you may have heard, New Media Rights recently assisted pop-culture hacker and remix artist Jonathan McIntosh (RebelliousPixels.com) in his battle with Lionsgate over the improper copyright takedown of his well known Buffy vs. Edward: Twilight Remixed video.
 
Jonathan's story is most interesting, because Jonathan had recently shown the Copyright Office the video in a hearing about copyright exemptions last May where New Media Rights was advocating for your right to reuse video under fair use. In one of its findings, the Office praised the video as an example of innovative fair use that copyright exemptions are there to protect. 
 
Jonathan's battle, and our experience working with folks one-to-one suggests there are large media companies that intend to blindly monetize every reuse of content, even if it means steamrolling fair use and the freedom of speech. 
 
Due to Jonathan's compelling post, and supporting coverage from ARS Technica and people like Mike Masnick of Techdirt, we were able to resolve his issues, and now Jonathan's Buffy Versus Edward: Twilight Remixed is back on Youtube, viewable without ads.  Forbes also covered this victory.
 
How we can keep this work going

First of all, we want to thank all of our new donors from our November crowd-funding campaign as well as those who donated in January who help continue to fund this type of work. 

Between new donors and new newsletter recipients, this email welcomes nearly 250 new people to the NMR community in the last two months alone!

Despite a recent temporary groundswell of support from individuals, what we do is still not sustainable in the long term without institutional grantors.
 
Right now, we're in search of foundation partners and institutional donors to support this work going forward. Defending independent creators and consumers against bogus legal threats is unfortunately a growing problem that has outstripped our ability to handle many of the people requesting our assistance. If you have any leads for foundations or institutional donors interested in supporting and expanding this work, please send them our way.
 
The recent story about Jonathan McIntosh's case is just the tip of the iceberg. We've assisted over 300 people in the last 12 months with issues, most of whom we cannot discuss due to confidentiality, but all of whom have stories just as compelling as his.
 
Moving forward - Youtube's Terms of Service, paragraph 4, Section H
 
We're about to embark on another Youtube related issue: getting some of the filmmakers, non-profits, journalists, and activists whose videos have been taken down recently due to Youtube's automated "Terms of Use Section H" violation takedowns who actually did not violate those terms of use. 
 
This issue affected most likely thousands of Youtube users who were caught in the automated filter taking down their videos and closing their accounts, but did not violate Youtube's terms of use with bots or automated views. Over a dozen reputable cases of this came to us in December alone. 
 
I encourage you to connect with New Media Rights on Twitter, Facebook, and Youtube to stay up to date with that issue.
 
Thanks again for being part of the New Media Rights community, and keep an eye out as our future battles against for independent creators develop.

All the best,

Art Neill, Shaun Spalding, and the entire team at New Media Rights

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NMR helps remix artist Jonathan McIntosh fight Lionsgate's Youtube takedown of "Buffy vs. Edward"

Buffy vs Edward unfairly removed

A new year brings new battles for independent creators to share their work.

Pop-culture hacker and remix artist Jonathan McIntosh (RebelliousPixels.com) explains below in a post how New Media Rights is fighting for him in his battle with Lionsgate over the copyright takedown of his well known Buffy vs. Edward remix video.

New Media Rights is proud to be helping Jonathan fight this battle with Lionsgate over his video.  Asserting the right to make fair use of content simply shouldn't be this hard.

It is part of a bigger picture development in the world of online video.

His story, and our experience working with folks one-to-one suggests there are large media companies that intend to blindly monetize every reuse of content, even if it means steamrolling fair use and the freedom of speech. 

Please remember New Media Rights is a non-profit project doing this work on a very modest budget, so if you support this work, please donate now so we can keep advocating for creators like Jonathan!

 

Buffy vs Edward Remix Unfairly Removed by Lionsgate

January 9, 2013

by Jonathan McIntosh

It has been three and a half years since I first uploaded my remix video “Buffy vs Edward: Twilight Remixed” to YouTube. The work is an example of fair use transformative storytelling which serves as a visual critique of gender roles and representations in modern pop culture vampire media.

Since I published the remix in 2009 it has been viewed over 3 million times on YouTube and fans have translated the subtitles into 30 different languages. It has been featured and written about by the LA Times, Boston Globe, Salon, Slate, Wired, Vanity Fair, Entertainment Weekly and discussed on NPR radio. It was nominated for a 2010 Webby Award in the best remix/mashup category. The video is used in law school programs, media studies courses and gender studies curricula across the country. The remix also ignited countless online debates over the troubling ways stalking-type behavior is often framed as deeply romantic in movie and television narratives.

This past summer, together with the Electronic Frontier Foundation, I even screened the remix for the US Copyright Office at the 2012 hearings on exemptions to the DMCA. Afterward my Buffy vs Edward remix was mentioned by name in the official recommendations by the US Copyright Office (pdf) on exemptions to the DMCA as an example of a transformative noncommercial video work.

“Based on the video evidence presented, the Register is able to conclude that diminished quality likely would impair the criticism and comment contained in noncommercial videos.  For example, the Register is able to perceive that Buffy vs Edward and other noncommercial videos would suffer significantly because of blurring and the loss of detail in characters’ expression and sense of depth.”
-Recommendation of the Register of Copyrights, October 2012 (Page 133)

Despite the clear and rather unambiguous fair use argument that exists for the video, Lionsgate Entertainment has now abused YouTube’s system and filed a DMCA takedown and had my remix deleted for “copyright infringement”. Below is a brief chronicle of my struggle to get Buffy vs Edward back on YouTube where it belongs.

On October 9th 2012 I received a message from YouTube stating that Buffy vs Edward had “matched third party content” owned or licensed by Lionsgate and “ads may appear next to it”. Lionsgate acquired ownership of the Twilight movie franchise in 2012 (via the purchase of Summit Entertainment for 412 million dollars) so the claim appeared to be directed at the 1 minute 48 seconds of footage I quoted from the first Twilight movie in my 6 minute remix.

YouTube notice 1

I always turn all ads off on my remix videos and never profit off them. But sure enough when I checked my channel, Lionsgate was monetizing my noncommercial fair use remix with ads for Nordstrom fall fashions which popped up over top of my gender critique of pop culture vampires. Incidentally this copyright claim also prevented the remix from playing on all iOS devices like iPads and iPhones becuase they are not ”monetized platforms“.

adsonbuffy

I thought perhaps YouTube’s Content ID System had automatically tagged the video and didn’t understand that it was a fair use. In the hopes I could get the mistake cleared up I immediately used YouTube’s built-in process to register a fair use dispute.

dispute1

Less then 24 hours later however I received another message from YouTube informing me that Lionsgate had reviewed my fair use claim and rejected it, reinstating their claim on the remix and again monetizing the video with intrusive popup ads.

dispute rejected

Slightly concerned at what appeared to be a blatant disregard for fair use previsions, I contacted a lawyer at New Media Rights named Art Neill. New Media Rights drafted a rather detailed 1000 word legal argument citing case law and explaining how Buffy vs Edward was in fact about as clear of an example of fair use as exists. This included fair use arguments for the nature and purpose of the transformative use, amount used and market effect. YouTube’s built-in system now allows for a second round of copyright disputes, called an appeal process. So I returned to YouTube and filed an official appeal of the reinstated bogus copyright claim by Lionsgate using the fair use argument and legal language from my lawyer. (See the full text of the fair use argument we made here.)

Appeal 1

On November 26th 2012, after a month of waiting, I finally got a response stating that Lionsgate had decided to release their copyright claim on my remix. Victory!

Or so I thought.

claim released

That same day I noticed another notification from YouTube saying that my Buffy vs Edward remix had “matched third party content” owned or licensed by Lionsgate and that ads may appear on my video. Wait what? Deja-vu. Hadn’t I just spent nearly 2 months dealing with exactly that? On closer inspection this new claim was for “visual content” owned by Lionsgate and the claim I had just fought and finally won had been for “audiovisual” content. No further information was provided as to what the difference was between the two claims or what content exactly was supposedly infringing.

two claims

It appeared as though Lionsgate just filed two separate infringement claims on the same piece of media.

 Confused and slightly frustrated I once again embarked on repeating the same dispute process as before. I filed my fair use dispute via YouTube’s built-in form exactly as I had the first time around.

Again, just like the first time, it was rejected by Lionsgate within 24 hours and they reinstated their claim on the remix.

So again I filed my second long-form appeal using YouTube’s system, again making the detailed legal arguments crafted by my lawyer at New Media Rights which again lay out very clearly all the fair use arguments. And again, I waited for a response.

On December 18th I received notification from YouTube that Lionsgate had again ignored my fair use arguments, rejected my appeal and this time had the remix deleted from YouTube entirely.

youtube removal

I was dumbfounded. And to add insult to injury I was now locked out of my YouTube account and had a copyright infringement “strike” placed on my channel.

In order to regain access to my account I was also forced to attend YouTube’s insulting “copyright school” and take a test on fair use. Since I’ve been giving lectures on fair use doctrine for artists and video makers for a number of years this was a breeze, but still insulting because my video was not infringing in the first place.

buffyvsedward-deleated

Once I was allowed back into my account I found  that YouTube is now penalizing me for this “strike” by preventing me from uploading videos longer than 15 minutes.

I consulted my lawyer again, and following the advice on YouTube’s copyright FAQ page, he reached out to the representatives of Lionsgate who administer their online content and  had issued the DMCA takedown. What he found out from that correspondence was worrying.

Representatives of Lionsgate, a company called MovieClips that claims to manage Lionsgate’s clips on Youtube, confirmed in an email to New Media Rights that they had filed a DMCA takedown on Buffy vs Edward because I did not want them to monetize the remix. In fact this is exactly what the company’s representative, Matty Van Schoor, said in a response email to New Media Rights on December 20, 2012.

“The audio/visual content of this video has been reviewed by our team as well as the YouTube content ID system and it has been determined that the video utilizes copyrighted works belonging to Lionsgate. Had our requestes to monetize this video not been disputed, we would have placed an ad on the cotent [sic] and allowed it to remain online. Unfortunately after appeal, we are left with no other option than to remove the content.”

No other option? How about recognizing it is fair use and dropping the complaint? They did not answer or even acknowledge our fair use arguments via email, despite fair use being raised multiple times. 

Perhaps this is just the action of a rogue studio, but it hints at a bit of a nightmare scenario for transformative media makers and remix artists. The fear is that fair use will be ignored in favor of a monetizing model in which media corporations will “allow” critical, educational and/or transformative works only if they can retain effective ownership and directly profit off them.

It appears that Lionsgate is attempting to do just that. What if every time The Daily Show made fun of a Fox News clip, News Corp. was allowed to claim ownership over the entire Daily Show episode in order to monetize it?

There are limitations on takedowns. For instance, as Neill from New Media Rights points out, the DMCA Section 512 prohibits knowingly, materially misrepresenting any information in takedown notices. At least one court, the case of the baby dancing to Prince in the Lenz case, has even required that DMCA takedown notice senders consider fair use before sending a takedown.

Buffy vs Edward has now been offline for 3 weeks. Over the past year, before the takedown, the remix had been viewed an average of  34,000 times per month.

Since none of YouTube’s internal systems were able to prevent this abuse by Lionsgate, and our direct outreach to the content owner hit a brick wall, with the help of New Media Rights I have now filed an official DMCA counter-notification with YouTube. Lionsgate has 14 days to either allow the remix back online or sue me. We will see what happens.

counter-notice

This is what a broken copyright enforcement system looks like.

One last note, New Media Rights has offered me invaluable advice and guidance throughout this battle. They are a small, non-profit two lawyer operation on a shoe-string budget fighting to make sure artists like me are heard. So if you can please consider donating to them here.

PS: Until we can get the takedown reversed, you can still watch the HTML5 popup video version of Buffy vs Edward here.

 

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Invest in creativity and slay the copyright trolls!

Dear New Media Rights community, 

We logged our 600th one-to-one assistance case since mid-2010 this week!

When you support New Media Rights, you invest in creativity, and the slaying of copyright trolls.

Tax-deductible donations from folks like you support creative projects, free speech, and job-creating ideas that may die on the vine without our assistance.  Just this afternoon I spent time gathering evidence on a large media company that has abused copyright law to takedown a video that is 100% legal.  We will use that information to restore this content and expose the abuse by this company.

Unfortunately, finding the spark for a great idea isn't the only hurdle creators face.   Sometimes they need legal services to even be able to share their creativity or innovation, and that's where New Media Rights steps in.  We're gearing up to make 2013 the year the independent creator fights back.
 
There's still time to for you help independent creators and protect free speech in 2013. 
 
Here's how you can make an invest in creativity:
 
Please donate, because if everyone we've assisted donated $35 then we could easily make our goal.
 
You can also donate through our website.  Consider becoming a Founder this year by donating $250 or more.  Your name or your company's name will be prominently displayed on our website as a supporter of New Media Rights.

Both ways of donating are tax-deductible, so donate before December 31 to make sure you get the deduction fro 2012!  And spread the word!

I'm grateful to have you as part of our community, and I look forward to slaying more copyright trolls with you in 2013!

Happy Holidays and all the best in the New Year,

Art Neill
Founder | New Media Rights
619-591-8870
art@newmediarights.org

No Rights Reserved

 

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Geek v Troll: New Media Rights stands up for the underdogs of the Internet

San Diego CityBeat, San Diego's alternative newsweekly, published a great cover story this past week about our work at New Media Rights.

It also has an amazing Street-Fighteresque illustration of a Geek punching a copyright troll. Check it out!

 

 

From the story:

"Let’s say you’re a citizen journalist who wakes up one morning to an alert from Google that, due to purported copyright infringement, it has removed one of your blog posts about a student in Scotland who’d been posing online as a Syrian lesbian to score a book deal. You know the copyright claim is crap, but what then?

“Yes, I’ll use the F-word: Frightening,” says gay-rights blogger Michael Petrelis, whose blog, The Petrelis Files, received such a “takedown notice” in August 2011. “To get that email from Google, I just knew, to keep my stress level down I was going to need expertise to challenge Google. Just saying that—‘challenging Google’—gives me tingles in a way. I’m a person with AIDS, struggling with disability in San Francisco, who now has to navigate Google’s rules.”

During the last decade-and-a-half, major online communities—most notably Google’s Blogger.com and You- Tube—have instituted a largely automatic, frustratingly bureaucratic system of censor-first self-regulation when it comes to alleged copyright infringement. It’s easily, and often, abused and tends to favor aggressive “trolls,” who use the system as a weapon. These trolls are sometimes corporate legal teams; other times, they’re just independent bullies seeking to block critical content from release.

“I think he saw me as an easy target,” Petrelis says of his troll. “He’s certainly intelligent, smarty-pants enough that he knew how to lodge the right kind of complaint with Google.”

After talking to attorneys at Harvard University’s Citizen Media Law Project, Petrelis was referred to a San Diego legal clinic, New Media Rights, whose executive director, Art Neill, personally talked him through the process and helped him file a successful counter-claim."

Read the whole story here!

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New Media Rights invited to participate in Copyright Office panels considering potential small claims system for copyright law

In 2012, the U.S. Copyright Office began a process of considering creating a small claims court or system for small-scale copyright disputes.  This would affect the internet users and independent creators New Media Rights assists significantly.

New Media Rights has been invited by the Copyright Office to participate in hearings taking place November 26 & 27 in Los Angeles on the topic.

Executive Director Art Neill will be participating in panels discussing potential remedies and appeals, constitutional issues, and benchmarks for success of such a system.

In its recent October 19, 2012 comments, NMR argued any small claims system will need to address current misuses of copyright law, abuse of the DMCA takedown process, and the general discrepancy in how attorney’s fees and costs are awarded to prevailing defendants.  Throughout the proceedings NMR's goal has been to share the challenges of the internet users and independent creators it assists directly with policymakers.

http://www.copyright.gov/docs/smallclaims/

Background

Abuses of copyright law are rampant in the current system. Creators and internet users regularly face baseless content removals and settlement demands.  Right now, much of this misuse and abuse takes place outside of the formal court system.  A small claims system for copyright would naturally lower the bar for copyright bullies to bring formal actions against defendants.

Many of the defendants in the new system will be these same vulnerable independent creators and internet users already facing abuse in our informal system.  When considering such a significant change to the current copyright system, the Copyright Office must ensure that the new playing field that is created allows defendants an adequate opportunity to defend themselves and pursue those who abuse and misuse copyright law.

 

Read our full comments on this most recent round of questions

Read our earlier comments in this proceeding  

 

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