When the Claimant Doesn't Understand the Law

[Idec Sdawkminn]

If you're familiar with my channel, you know that my videos consist almost entirely of content owned by someone else. I believe that the edits I make to them are enough to be considered a type of parody, enough to be considered fair use. I know that's only my opinion, but I wouldn't be making these videos, let alone disputing the claims, if I didn't feel I was in the right to do it.

So, I recently made a video about the theme song/intro to the CGI cartoon Pocoyo. A couple days later, it got a manually-detected claim on it that blocked it worldwide. They weren't interested in making money off my views. They just didn't want it to be seen. So, naturally, I disputed it. Can't get many views if no one can watch it, right? Here's my canned response dispute:

I believe that my use of your content is a form of parody and overall highly transformative. It has an overall different meaning and feeling from the original work and it does not compete with the original or damage its market. Have a nice day!

They get 30 days to respond, but they responded the next day, of course rejecting it. So, having only 1 strike at the time and in minimal danger of having 3, I appealed it with a similar message. Again, 30 days to respond, but they responded immediately and set it to be taken down in 7 days if I didn't cancel my appeal. I wish they would just take it down right away because I don't appeal things unless I'm prepared for it to be taken down, so it's just an extra 7 days I have to wait, but I understand the usefulness of that feature for people who were kind of bluffing.

I waited the 7 days for it to go down, then sent my counter notification with a similar message, and also sent a retraction request to the email listed. At this point I never expect anything good to result from it, but it never hurts to try. Here's my email I send for that:

Hello,

I'm contacting you because a conflict has prompted the takedown of my video. I used content created and/or owned by you or your company, without permission. I can certainly understand you wanting to protect your content, but I believe that my use of it is a form of parody and therefore within the guidelines of Fair Use as described in the law. Therefore, in the interest of my own channel, I have filed a Counter Notification with YouTube to have my video restored.

The Counter Notification process takes a couple weeks, however, so in the interest of getting it resolved sooner, I ask that you please retract your Takedown Notice. Here is the link to do that: youtube.com/my_claims

The video(s) taken down: (URL)

Thank you and I hope you have a nice day!

Surprisingly, I actually got a response back! Here's what he said:

Pocoyo is a preschool brand for us it is very important to take care of the use of it. Your video is inappropriate for children so we have exercised a blocking policy. I have not marked Takedown to be yourself who deletes said content and does not generate problems in your channel.

regards

I'm not sure what all he was saying, but my best guess is that he was willing to retract the takedown if I delete the video. That still makes it really hard for me to get views on it. But what stood out was his reason for taking it down. Basically he didn't like the video. I replied:

Thanks for replying. I’m not sure I understand what you are saying. Are you saying you didn’t take down the video? Because it was taken down. Are you saying that you’ll retract the strike if I delete the video myself? If so, that’s a nice offer, but I want my video to remain up, so that solution isn’t ideal for me.

Regarding the video being inappropriate for children, I can understand your reasoning for wanting the video gone, but on its own, that isn’t a valid legal reason to take someone’s video down. Me infringing your copyright is a valid legal reason, but since I think my use of the content is within the guidelines of Fair Use, my opinion is that I didn’t infringe any copyright and therefore no one has any legal right to take my video down.

There has been no reply, but now the status on my counter notification says "Under Final Review", which means they have sent something to YouTube in response to the counter notification. Ideally one would send proof of some sort of legal proceedings, like a court order or lawsuit, to keep the video down. But what I've actually been seeing happen is they are trying to convince YouTube to keep the video down, most likely by saying my counter notification was invalid. I haven't had this happen very often, but in all the cases it has, YouTube has decided it was still valid and the video came back up.

We'll see how this one goes, but I just found his reply to my email interesting and amusing. I hope you did, too!

 

[videoeditgr]

but it never hurts to try

liked the post just for this phrase

"Pocoyo is a preschool brand for us it is very important to take care of the use of it. "

To be honest as an example, recently I have disliked couple of parody videos in native language as long as presented the opposite of right traffic rules as normal. Notice that my little one was learning this year the basic traffic laws (age of 5) so I let her search it in Youtube while watching what see sees. To my surprise some really well done videos with cool music and fun mood presented how to be the "cool" guy let's say in streets. They were parody but tags and description was nothing to indicate that. Also, there was no age restriction on them. So: Preschool is a powerful word for some people I guess.... Anyway, good luck with your case, hope to end to your profit

 

[Idec Sdawkminn]

liked the post just for this phrase

"Pocoyo is a preschool brand for us it is very important to take care of the use of it. "

To be honest as an example, recently I have disliked couple of parody videos in native language as long as presented the opposite of right traffic rules as normal. Notice that my little one was learning this year the basic traffic laws (age of 5) so I let her search it in Youtube while watching what see sees. To my surprise some really well done videos with cool music and fun mood presented how to be the "cool" guy let's say in streets. They were parody but tags and description was nothing to indicate that. Also, there was no age restriction on them. So: Preschool is a powerful word for some people I guess.... Anyway, good luck with your case, hope to end to your profit

Nice. See, disliking a video is stating your opinion on it and is an appropriate way to express your dissatisfaction with something. By contrast, breaking someone's sign because you don't agree with what it says is not an appropriate way. Taking down someone's video is basically the same thing, and if they aren't actually infringing your copyright (like if it is Fair Use), then that's the same as taking a random video down that you don't own.

 

[Rambalac]

You basically has no idea what is parody. Just horror of kids character has no relation to parody. I hope they proceed to court and you will be finally suspended for counter notification fraud.

 

[Idec Sdawkminn]

You basically has no idea what is parody. Just horror of kids character has no relation to parody. I hope they proceed to court and you will be finally suspended for counter notification fraud.

seems it's actually you who has a limited understanding of the concept of parody and what things it encompasses. I'm curious what you think defines a parody. From the Wex Legal Dictionary: "The key factor for a parody to qualify as fair use is whether the parody is transformative -- it adds something new, with a further purpose or different character altering the copied work with new expression, meaning, or message."

Just to give some circumstantial evidence, I've had more than 200 videos taken down, mainly by Viacom, Disney, Universal, Warner Bros, and Sony, and all of them have come back up (except for a few where Universal has a contract with YouTube to keep the video down, but the strike was still removed) and have never been sued. I've only had one company send me an email threatening to sue me if I didn't retract my counter notification. The video came back up and I never heard from them again. I've had an email correspondence with the company that represented Adele's rights. They said their hands were tied because they have to do everything they can as Adele's agent, but personally they liked my videos and wished they could leave it alone. And just recently I asked another rights management company to retract their takedown. When they considered it a cover, I explained why I considered it a parody and they replied, "I'll let our client know what you've said (about it being a parody) as it's a good explanation of your point of view on the video."

 

[UKHypnotist]

Everybody seems to be forgetting one thing about the Fair Use Doctrine.

It can only be truly tested and defined, case by case in a court of Law.

@Rambalac You are beginning to act like you've been seen to do on the Official YouTube Help Forum. You are basically a newcomer here, while I've been a member nearly since the founding of this forum. Trying to tear down forum members simply to make yourself look more knowledgeable when you don't have a solid grounding in the subject at hand isn't the way to gain respect here.

When I speak, it is from a position of knowledge as a standing Intellectual Property Owner in both the areas of Copyright, and Trade/Service Mark. I need to know the Law in order to uphold and discharge my rights and responsibilities in these areas.

When I speak on the way YouTube works, it is from the experience of being a YouTube Creator since about a year after the site was originally founded (I joined in 2006); and having viewed every change of rules which has been done throughout all of those years.

Can you say the same? Please try being more polite when you post here, and don't presume to overstep the boundaries of your knowledge simply to make yourself look good.

(For the attention of the mods: This was meant as a head's up for @Rambalac, rather than a call out.)

 

[Idec Sdawkminn]

Everybody seems to be forgetting one thing about the Fair Use Doctrine.

It can only be truly tested and defined, case by case in a court of Law.

Thanks for the reminder. I didn't forget, but as that part's outside both party's control, the most we can discuss is whether it should be decided as Fair Use, and the likelihood that it will. I always have that fact in the back of my mind while talking about it.

Also, while I'm relatively new to Copyright, I've read up on it and discussed my channel with a co-worker who used to work in the copyright/rights management department of a TV station and his opinion is that my videos are "a clear example of what Fair Use was designed to protect."

 

[UKHypnotist]

Thanks for the reminder. I didn't forget, but as that part's outside both party's control, the most we can discuss is whether it should be decided as Fair Use, and the likelihood that it will. I always have that fact in the back of my mind while talking about it.

Also, while I'm relatively new to Copyright, I've read up on it and discussed my channel with a co-worker who used to work in the copyright/rights management department of a TV station and his opinion is that my videos are "a clear example of what Fair Use was designed to protect."

I'm definitely not disagreeing with you there my video colleague!

 

[Idec Sdawkminn]

Just an update. My video was restored today, despite the claimant responding to YouTube and presumably trying to assert that the counter notification was invalid.

 

[nixia1]

I was just scrolling through my feed when I saw a video of someone playing a really colorful and fun-looking game. Since I'm from the Philippines, I'm always on the lookout for local trends, and that's how I found chicken road through the comments. It’s such a quirky experience compared to the usual card games I play. I love the simplicity of the mechanics, and it’s a perfect way to kill some time while waiting for my ride during the busy rush hour.