YouTube Suspends Pax Stereo Tv Account!
 Universal Music Group Complaint Leads To Shutdown Ahead Of Schedule
 Profile Closed Early & Prior To Dispute Deadline

 

Notice Received From YouTube Thursday, February 17, 2010:

"We have received three notifications alleging copyright infringement in one of your postings. Consequently, your account is subject to termination. Your ability to post new videos has been suspended. Your access to your account will be completely disabled unless we receive from you a valid counter-notification disputing at least one of the claims by February 24, 2010."

Pax Stereo has been a member of YouTube since November, 2005. We were a member of the YouTube Partner Program.

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Email: copyright@youtube.com

Fax: 650.872.8513

Subject: YouTube Pax Stereo DMCA Takedown

Twitter/youtube

DMCA Complaints - YouTube, Inc.901
Cherry Ave. Second Floor
San Bruno, CA 94066

 

Our Response To YouTube
(THE PAX STEREO YOUTUBE PROFILE WAS UNABLE TO BE LOCATED AS OF 4:30PM FEBRUARY 23, 2010 - PRIOR TO DEADLINE FOR RESPONSE)


Tuesday, February 23, 2010

From:

Pax Stereo
3784 Northland Drive, LA CA 90008
323 296-6165

To:

DMCA Complaints - YouTube, Inc.
901 Cherry Ave. Second Floor
San Bruno, CA 94066 USA

 

Re: Video ID _DzDfazcrWw

 

Dear YouTube,

 

We recently received notification that our account was frozen due to copyright complaint(s), and we were asked to submit a response by February 24, 2010. This is our official response.

 

We regret the action taken to freeze our upload privileges, and would like to do everything to ensure reinstatement of these privileges as soon as possible. As members of the EFF (Electronic Frontier Foundation), we are very aware of the pressures applied to YouTube to combat piracy, however we believe our use of the materials represents fair use. We strongly believe in the following fair use principles as previously expressed in an Electronic Frontier Foundation Publication:

  1. A Wide Berth for Transformative, Creative Uses: Copyright owners are within their rights to pursue nontransformative verbatim copying of their copyrighted materials online. However, where copyrighted materials are employed for purposes of comment, criticism, reporting, parody, satire, or scholarship, or as the raw material for other kinds of creative and transformative works, the resulting work will likely fall within the bounds of fair use.

But a commitment to accommodating "fair use" alone is not enough. Because the precise contours of the fair use doctrine can be difficult for non-lawyers to discern, creators, service providers, and copyright owners alike will benefit from a more easily understood and objectively ascertainable standard.

Accordingly, content owners should, as a general matter, avoid issuing DMCA or other informal takedown notices for uses of their content that constitute fair uses or that are noncommercial, creative, and transformative in nature.2

  1. Filters Must Incorporate Protections for Fair Use. Many service providers are experimenting with automated content identification technologies ("filters") to monitor their systems for potential copyright infringements. If a service provider chooses to implement such filters, the following precautions should be taken to ensure that fair uses are not mistakenly caught in them:

     
    1. Three Strikes Before Blocking: The use of "filtering" technology should not be used to automatically remove, prevent the uploading of, or block access to content unless the filtering mechanism is able to verify that the content has previously been removed pursuant to an undisputed DMCA takedown notice or that there are "three strikes" against it:
      1. the video track matches the video track of a copyrighted work submitted by a content owner;
      2. the audio track matches the audio track of that same copyrighted work; and
      3. nearly the entirety (e.g, 90% or more) of the challenged content is comprised of a single copyrighted work (i.e., a "ratio test").

If filtering technologies are not reliably able to establish these "three strikes," further human review by the content owner should be required before content is taken down or blocked.

    1. Humans Trump Machines: Human creators should be afforded the opportunity to dispute the conclusions of automated filters. If a user's video is "matched" by an automatic filter, the user should be promptly notified by the service provider of the consequences of the "match" and given the opportunity to dispute the conclusions of the filtering process. Notice should be provided to the user whether or not the "match" results in the blocking of content (e.g., a parodist may not want the target of the parody receiving a share of revenues generated by it).

If the user disputes a "match" pursuant to the above dispute mechanism provided by the service provider, the provider should promptly notify the relevant content owner. The service provider may choose to impose a brief "quarantine" period on the content (no more than three business days), in order to afford content owner an opportunity to issue a DMCA takedown notice after human review of the disputed content.

    1. Minimization: In applying automated filtering procedures, service providers should take steps to minimize the impact on other expressive activities related to the blocked content. For example, automated blocks should not result in the removal of other videos posted by the same user (e.g., as a result of account cancellation) or the removal of user comments posted about the video.

       
  1. DMCA Notices Required for Removals: The DMCA's "notice-and-takedown" procedures provide two important protections for creators whose noninfringing materials are improperly targeted for removal: (1) the right to sue where the removal is the result of a knowing material misrepresentation3 and (2) a "counternotice-and-putback" procedure that overrides a takedown notice unless a content owner is willing to file an infringement action in court. 4

In order to preserve these protections, service providers should require compliant DMCA takedown notices from content owners before removing content in any manner that does not afford users the ability to contest and override the removal (such as the dispute and notice procedure described in Principle #2b above).

  1. Notice to Users upon DMCA Takedown: Upon issuance of any DMCA takedown notice by a content owner, the service provider should provide prompt notice to the user who posted the allegedly infringing material. Such notices should include (1) an entire copy of the takedown notice, (2) information concerning the user's right to issue a DMCA counter-notice and the provider's procedures for receiving such notices, and (3) information about how to contact the content owner directly in order to request a reconsideration of the takedown notice (see Principle #5 below).

Where feasible, this information should be made available to the posting user on the page where the content formerly appeared, as well as in private communications (such as email).

  1. Informal "Dolphin Hotline": Every system makes mistakes, and when fair use "dolphins" are caught in a net intended for infringing "tuna," an escape mechanism must be available to them. Accordingly, content owners should create a mechanism by which the user who posted the allegedly infringing content can easily and informally request reconsideration of the content owner's decision to issue a DMCA takedown notice and explain why the user believes the takedown was improper.

This "dolphin hotline" should include a website that provides information about how to request reconsideration, and a dedicated email address to which requests for reconsideration can be sent.5 Service providers should ensure that users are informed of these mechanisms for reconsideration, both on the site where the removed material previously appeared, as well as in the notice described in Principle #4 above.

Upon receiving an informal request for reconsideration of a particular takedown notice, the content owner should evaluate the request promptly, generally within three (3) business days, and retract the notice where it was issued in error.

  1. Mandatory Reinstatement upon Counter-notice or Retraction: Service providers should establish and follow the formal "counternotice-and-putback" process contemplated by the DMCA. Service providers also should provide users with a streamlined mechanism to reinstate content in cases when a takedown notice has been retracted by the content owner.

While not legally binding, these principles have been endorsed by:

 

·         Electronic Frontier Foundation

·         Center for Social Media, School of Communications, American University

·         Program on Information Justice and Intellectual Property, Washington College of Law, American University

·         Public Knowledge

·         Berkman Center for Internet and Society at Harvard Law School

·         ACLU of Northern California

 

 

Link: UGC_Fair_Use_Best_Practices.pdf       317.81 KB

 

Because of our beliefs, we are respectfully submitting the following requests:

 

·         Full reinstatement of the Pax Stereo YouTube Account

·         Information about how to contact the content owner directly to request a reconsideration of the takedown notice

·         Specific contact person(s) at YouTube for direct contact with any future issues

 

Our Position:

Consider the "four factors" that courts examine in fair use cases: (1) publication is clearly for a transformative purpose (criticism, public debate); (2) publication does not harm the "market" for the original (3) the nature of the publication is factual, not highly creative; and (4) while the whole manual was published, that was necessary for the transformative purpose. And, perhaps most important, a federal court has already ruled in favor of fair use on nearly these same facts, when Diebold Election Systems was sued for trying to censor embarrassing internal documents off the Internet using bogus DMCA takedowns.

The DMCA does not require service providers to comply with bogus takedown notices. The DMCA offers a "safe harbor" from money damages for copyright infringement, but you only need a "safe harbor" if the activity in question might be infringing in the first place.

·         The Automated System Penalizes Pax Stereo Prior To Allowing Contact With Content Provider

·         UMG Specifically Has History Of Ignoring Fair Use

In Lenz v. Universal (aka the "dancing baby" case), Judge Jeremy Fogel held that content owners must consider fair use before sending takedown notices under the Digital Millennium Copyright Act ("DMCA").

Universal Music Corporation ("Universal") had sent a takedown notice targeting a 29-second home movie of a toddler dancing in a kitchen to a Prince song, "Let's Go Crazy," which is heard playing in the background. Because her use of the song was obviously a fair use and, therefore, non-infringing, Lenz sued Universal for misrepresentation under the DMCA. Universal moved to dismiss the case, claiming, among other things, that it had no obligation to consider whether Lenz's use was fair before sending its notice. The judge firmly rejected Universal's theory:

[A] fair use is a lawful use of a copyright. Accordingly, in order for a copyright owner to proceed under the DMCA with “a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law,” the owner must evaluate whether the material makes fair use of the copyright.

Universal had insisted that copyright owners could not efficiently police copyright infringement if they had to consider whether a give use was fair. Not so, said the judge:

[I]n the majority of cases, a consideration of fair use prior to issuing a takedown notice will not be so complicated as to jeopardize a copyright owner’s ability to respond rapidly to potential infringements. The DMCA already requires copyright owners to make an initial review of the potentially infringing material prior to sending a takedown notice; indeed, it would be impossible to meet any of the requirements of Section 512(c) without doing so. A consideration of the applicability of the fair use doctrine simply is part of that initial review.

The court also noted that consideration of fair use is necessary to make sure that content owners do not abuse the takedown process:

A good faith consideration of whether a particular use is fair use is consistent with the purpose of the statute. Requiring owners to consider fair use will help “ensure[] that the efficiency of the Internet will continue to improve and that the variety and quality of services on the Internet will expand” without compromising “the movies, music, software and literary works that are the fruit of American creative genius.”

Given the "shoot first and ask questions later" approach some content owners take to the DMCA notice process, improper takedowns of non-infringing fair uses are all too common. We're very pleased that Judge Fogel has put content owners on notice: ignore fair use at your peril.

Pax Stereo is a weekly broadcaster of Internet news and talk shows, and has over 1900 video uploads, two million video views and 1300 channel subscribers at Youtube. Our growing video catalog includes interviews with Tavis Smiley, Jesse Jackson, Gene Simmons, Mayor Pro-Tem of Manhattan Beach Mitch Ward,  and grammy winning artist Teena Marie. Besides being an Amazon.com affiliate, we are early members of the YouTube Partner Program with plans to bring new high definition video from Teena Marie to the download sales program once it is reinstated. These copyright fair use dispute areas are a very minor fraction (<1%) of our total content. We are doing daily news broadcasts that are streamed live and also available on Internet radio daily. Should anyone question our dedication to news delivery, they should consider our broadcasts. Our commitment to covering news is consistent and obvious. In light of all this, we specifically feel that cancellation of our account is excessively punitive, and in direct opposition to the minimization discussed in the above principles. Specifically the principle states that “automated blocks should not result in the removal of other videos posted by the same user (e.g., as a result of account cancellation) or the removal of user comments posted about the video.” We ask that YouTube recognize the difficulty inherent in broadcasting news and integrating UGC (User Generated Content), and never close any accounts, especially those who comply quickly to takedown notices.

We recognize the difficulty and sensitivity of YouTube’s position. Without admitting any wrongdoing, we have removed the offending content, and wish to continue our current operations at YouTube. We are also requesting a specific representative with whom to discuss any future problems.

Thank you for your consideration of our requests. We are available daily at the number below. Please let me know how I may be of any further assistance.

Sincerely,

Mario R. Hemsley, MD
Pax Stereo CEO
mario@paxstereo.com

Pax Stereo
3784 Northland Drive, Los Angeles, CA 90008
(323) 296-6165

 

Related Issues: No Downtime for Free Speech Campaign

Related Cases: Lenz v. Universal