If You're Going To Sue YouTube For Infringement, Maybe First Don't License Your Music To YouTube Or Setup Fake Accounts To Upload Your Own Works

from the just-saying... dept

Fifteen years ago, we applauded jazz musician Maria Schneider, who was an early adopter of crowdfunding her music directly from fans -- getting them to donate to help her pay to record a new album. We were excited to see musicians like her go direct to fans and show that you didn't need record labels and the old way of doing things, such as locking up the music, to become a successful musician. For reasons I don't fully understand, in the intervening years, Schneider has become one of the most vocal critics of "big tech" and "piracy," even as she had been an early embracer of the internet and unique business models.

And then, in early July, she sued YouTube along with an anti-piracy organization called Pirate Monitor Ltd. The lawsuit had some unique (some might say "bizarre") legal theories in there, and was brought by infamous law firm Boies Schiller Flexner, whose top named partner, David Boies, you may recall from his work to try to spy on Harvey Weinstein's accusers. Or perhaps from the time he was actively involved with trying to suppress the speech of Theranos whistleblowers (where he was on the board). Or from the time he threatened us for reporting on leaked emails. Or from the fact that he's represented Oracle in trying to undermine the fundamental open nature of APIs for which he received a fantastic benchslap from Judge William Alsup who mocked Boies as being "one of the best lawyers in America" making a very silly legal argument.

Boies' firm representing Schneider raised a lot of eyebrows around the industry. I heard from multiple people wondering how it was that Schneider could afford a firm like Boies'. And, of course, Boies' connections to Hollywood (Weinstein, Sony Pictures) suggested there might be more behind this lawsuit than just an upset jazz musician.

But the lawsuit has now gone completely sideways in the most delightful way, as it appears that Schneider actually licensed her music to YouTube and (much, much, much worse), Pirate Monitor had actually set up fake accounts to upload its own works (reminiscent of that time that Viacom had to amend its lawsuit against YouTube after it was realized that Viacom had tried to sneakily post about 100 videos from its marketing department that it later sued over).

First, though, an explanation of the lawsuit itself. Schneider complains that she was not allowed to use ContentID to block or monetize her music that was uploaded by others. Schneider's lawsuit argued that this created a two-tier system, in which less well known artists like herself were left on their own to fight piracy, while bigger artists could just turn on ContentID.

The superior protections of the Content ID system are completely denied to Plaintiffs and the Class no matter how many times their copyright protected works are infringed on the YouTube platform. If a rights holder does not have the economic clout to qualify for Content ID, YouTube refuses to add their works to the Content ID catalog for prepublication protection even if those works have previously been infringed on YouTube hundreds or even thousands of times. Through its use of these systems, YouTube exerts significant control over which infringing videos may be published on its site and which infringing videos are never viewed by the public.

The lawsuit further argues that because of the odd interplay between ContentID (which allows copyright holders to "monetize" certain works, rather than pull them down), it creates a weird conflict with the DMCA's repeat infringer policies -- suggesting that YouTube is not complying with the DMCA's "repeat infringer" policy requirements in Section 512(i)(1)(A).

YouTube purports to take advantage of this safe harbor by having a policy that assesses a “copyright strike” against the uploader when an ordinary rights holder files a takedown notice and terminating uploaders when they accrue three active copyright strikes within 90 days. However, when infringing content is uploaded and identified by the Content ID system, no copyright strikes are issued. Thus, when Google brags that 98% of its “copyright issues are resolved via Content ID,” what it really means is that nearly all identified copyright infringing material is entirely insulated from its repeat-infringer policy. This two-tiered system essentially trains YouTube’s billions of uploading users that there is essentially minimal risk to uploading to their hearts’ content. And while YouTube’s Content ID partners are protected from these repeat infringers because their uploads will always be screened against the Content ID catalog before publication, Plaintiffs and the Class remain at risk of recurring infringement by these same repeat infringers.

It's an interesting argument, though multiple copyright lawyers I spoke to described it as a big stretch. Still, with copyright cases, you never know. As we've discussed over the years, copyright law rarely follows the actual law, with judges frequently coming up with weird excuses in which "piracy" seems to make them ignore what the law actually says.

Still Google's answer and counterclaims to the lawsuit are something to behold. It notes that Content ID is a unique tool to help copyright holders, and the reason it doesn't let everyone use it is because it's the type of tool that can be abused to monetize or takedown works that users have no right to. And then it points out how Pirate Monitor in particular is like the perfect example of why not everyone should be able to use ContentID. Because of a history of abuse:

Precisely because YouTube’s novel copyright management tools are so powerful, they must be used with care. These special tools enable users to automatically (or at the touch of a button) remove content from YouTube or block it from appearing in the first place. Misused or put in the wrong hands, these tools can be used to censor videos that others have every right to share through YouTube. These tools can also enable users to wrongfully claim ownership rights in others’ content or to take for themselves revenue that rightly belongs to others.

Plaintiffs’ claims in this case offer an especially pointed example of why YouTube limits access to Content ID. Both Pirate Monitor and Maria Schneider complain that they have not been allowed access to Content ID. But Pirate Monitor has clearly demonstrated why it cannot be trusted to use that tool properly. As set forth In YouTube’s Counterclaims, Pirate Monitor has engaged in widespread abuse of the DMCA’s notice-and-takedown process, going so far as to upload hundreds of videos to YouTube under false pretenses only then to claim, through false DMCA notices, that those same videos were infringing. This was apparently a ruse to obtain access to Content ID, and when it failed Pirate Monitor responded with this lawsuit. As for Schneider, she is suing YouTube on copyrighted musical works that she and her agents licensed YouTube to use. Not only that, despite Schneider’s claims that she has no access to Content ID, her own agent in fact used the tool to generate revenue from those same musical works on her behalf. Use of Content ID requires far greater care and candor.

Oof. Double oof. It makes you wonder if the high priced lawyers at Boies Schiller did their due diligence before filing the lawsuit. Because, that's bad. Later in the filing it details Pirate Monitor's widespread abuse with fake accounts and bogus takedowns:

During the fall of 2019, Pirate Monitor, through authorized agents (collectively “Pirate Monitor”), created a series of accounts on YouTube. Each time it created a new account, Pirate Monitor affirmatively agreed to the ToS Agreement. But in order to deceive YouTube and in violation of the ToS Agreement, Pirate Monitor provided bogus account registration information. Rather than properly identifying itself as the account creator, Pirate Monitor used alternative account names to mask the relationship of the account creators and the accounts to Pirate Monitor.

Pirate Monitor used these accounts to upload hundreds of videos to the YouTube service during 2019.

Included in the videos that Pirate Monitor uploaded in 2019 were clips from the very works that Pirate Monitor now accuses Google and YouTube of infringing in this action, including numerous excerpts from the Hungarian film Csak szex és más semmi.

Through these disguised accounts, Pirate Monitor also uploaded hundreds of excerpts from the Hungarian film, Zimmer Feri to YouTube.

Each time these videos were uploaded, Pirate Monitor was representing and warranting that the video did not infringe anyone’s copyrights, and it expressly granted YouTube a license to display, reproduce, and otherwise use the videos in connection with the service. Pirate Monitor also represented that it owned or had the rights to upload and license the material contained in the videos.

Pirate Monitor reconfirmed its representations and promises in the ToS Agreement during the upload process for each video.

But shortly after uploading these videos, Pirate Monitor sent YouTube hundreds of takedown requests under the DMCA, in many instances for the same videos it had just uploaded through its disguised accounts. In those notices, Pirate Monitor represented that the videos that were the subject of the notices—videos that it had uploaded—infringed its copyrights or the copyrights of a party whom Pirate Monitor was authorized to represent. YouTube processed the substantial volume of DMCA takedown requests and removed the videos.

Without the benefit of discovery, it is unclear which of Pirate Monitor’s conflicting representations about these videos were accurate. But either way, Pirate Monitor has made misrepresentations on which YouTube relied.

On the one hand, if Pirate Monitor falsely represented to YouTube that it had the authority to post the videos and that the videos did not infringe anyone’s copyrights, then Pirate Monitor breached the ToS Agreement and perpetrated a fraud on YouTube. Had Pirate Monitor not made the representations to YouTube that it did, YouTube would not have allowed it to create accounts on the service, and it would not have allowed Pirate Monitor to upload content to the service.

On the other hand, if Pirate Monitor accurately represented to YouTube that it had the authority to post the videos and that the videos did not infringe any third party’s copyrights, then Pirate Monitor made knowingly false statements when it subsequently represented to YouTube in its DMCA takedown requests that those same videos were infringing.

Pirate Monitor’s serial uploads and DMCA takedown requests for the same videos were central to a scheme through which it hoped to gain access to YouTube’s powerful copyright management tools, in particular Content ID.

Pirate Monitor had previously applied for and been denied access to use YouTube’s advanced copyright management tools.

YouTube told Pirate Monitor that access to YouTube’s copyrighted management tools was predicated in part on demonstrating both a need for such access, and a history of properly using the DMCA takedown request process.

Pirate Monitor believed that it could demonstrate both the need for access, and a track record of valid DMCA takedown requests, by surreptitiously uploading a substantial volume of content through accounts seemingly unconnected to it, and then sending DMCA takedown requests for that same content.

Instead of showing that it could properly use YouTube’s tools, Pirate Monitor’s deceptive and unlawful tactics established that it could not be trusted, and that YouTube was right in rejecting its request for access.

It's amazing how frequently we see this kind of thing. Anyway, as a counterclaim, YouTube accuses Pirate Monitor of fraud and breach of contract.

There are no counterclaims against Schneider, but the reply does claim that Schneider licensed her works to YouTube through her agent, who is not identified) and thus claims that there can be no infringement, since the works were licensed. Separately, YouTube highlights that her unnamed agent had access to ContentID, so the claim that she was blocked from using ContentID also appears to be untrue.

Plaintiff Schneider complains that she has been denied access to YouTube’s Content ID system, but has long had that access through her agent who has expressly used Content ID to generate revenue on her behalf using the Content ID system. More generally, Plaintiffs’ claims are barred in whole or in part by licenses, consents, or permissions that Plaintiffs and their agents, have granted to YouTube and Google, and/or to third parties who in turn have granted licenses to YouTube and Google.

If this case was designed to be a big legal attack on Content ID and the repeat infringer policies required under the DMCA, well, it's not off to a particularly auspicious start.

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Filed Under: abuse, contentid, copyright, maria schneider
Companies: google, pirate monitor, youtube