{"id":22423,"date":"2022-12-10T00:28:13","date_gmt":"2022-12-10T00:28:13","guid":{"rendered":"https:\/\/mailinvest.blog\/index.php\/2022\/12\/10\/guy-who-sued-youtube-because-someone-else-copied-a-bit-of-his-youtube-video-loses-again\/"},"modified":"2022-12-10T00:28:13","modified_gmt":"2022-12-10T00:28:13","slug":"guy-who-sued-youtube-because-someone-else-copied-a-bit-of-his-youtube-video-loses-again","status":"publish","type":"post","link":"https:\/\/mailinvest.blog\/index.php\/2022\/12\/10\/guy-who-sued-youtube-because-someone-else-copied-a-bit-of-his-youtube-video-loses-again\/","title":{"rendered":"Guy Who Sued YouTube Because Someone Else Copied A Bit Of His YouTube Video Loses (Again)"},"content":{"rendered":"

<\/a>\n
<\/p>\n

\n

from the not-how-any-of-this-works<\/i> dept<\/h3>\n

You may recall that, back in August, we wrote about<\/a> the bizarre situation of a company called \u201cBusiness Casual\u201d and its CEO, Alex Edson. Business Casual makes highly produced videos. It made a few on historical topics, including taking some public domain images and modifying them significantly to make \u201cparalax images\u201d that added a sort of 3D feel. Edson\/Business Casual claim (credibly!) that RT Arabic, the Arabic language wing of Russia Today, owned by TV-Novosti, copied parts of some of their videos. There were some DMCA claims he filed and then a lawsuit against TV-Novosti<\/a>.<\/p>\n

All that is\u2026 perfectly reasonable?<\/p>\n

But then, for unclear reasons, Edson decided to sue YouTube\/Google as well, claiming direct<\/em> infringement among other things. That lawsuit did not go well<\/a>. Not well at all.<\/p>\n

It got much more bizarre over the summer, because Edson\u2019s lawyer, Ron Coleman (who these days seems to specialize in fighting ridiculously bad culture war lawsuits which have no chance of success) kept filing for delays on filing for permission to file an amended complaint, saying that Edson was dealing with debilitating health problems. But\u2026 the very day that he filed the third such \u201cEdson\u2019s ill, we need more time,\u201d motion (directly stating that Edson \u201cis in agonizing pain and cannot function at this time<\/em>\u201c), a very healthy looking Edson was releasing a two hour long video<\/a> on YouTube (complete with a very bad Putin impersonator) explaining \u2014 poorly \u2014 some details of copyright law, and claiming that YouTube is an \u201canti-American\u201d company. He also claims, in truly dramatic fashion, that YouTube\u2019s lawyers are \u201cpathological liars\u201d among other things. <\/p>\n

While YouTube\u2019s lawyers alerted the judge to this video, the judge ignored it and still granted the extension. Coleman eventually got around to submitting the actual filing. And, right before Thanksgiving the judge ruled on it \u2014 again highlighting how truly bad<\/em> the legal arguments<\/a> being made are.<\/p>\n

First, Edson\/Business Casual argue that YouTube failed to apply its \u201crepeat infringer\u201d policy to TV-Novosti by not suspending the account (or rather, suspending it only briefly). But, as the judge notes, the DMCA\u2019s repeat infringer policy requirement (DMCA 512(i)<\/a>), are only about whether or not a website is eligible for the DMCA\u2019s safe harbors. It\u2019s not its very own cause of action. But Coleman seems to think it is. The judge disabuses him of this:<\/p>\n

\n


\nPlainly, the plaintiff here is attempting to assert an
\nindependent claim against YouTube for its alleged failure to
\ndiscontinue TV-Novosti\u2019s account in accordance with its Repeat
\nInfringer Policy. Lest there be any doubt on this point, the
\nplaintiff asserts in its motion papers that YouTube\u2019s failure to
\n\u201cterminate the accounts of repeat infringers . is why we are
\nhere.\u201d Pl.\u2019s Reply at 1. But as this Court already made clear,
\nBusiness Casual \u201cmisconstrues the safe harbor provisions of the
\nDMCA and how [those provisions] interact with the other federal
\ncopyright laws.\u201d First Opinion, 2022 WL 837596, at *5. The DMCA
\ndoes not establish an affirmative cause of action. Rather, the
\nDMCA provides internet service providers (\u201cISPs\u201d) with potential
\n\u201csafe harbor\u201d defenses that will shield ISPs from liability for
\ncopyright infringement so long as certain statutory criteria,
\nincluding the maintenance of a policy for terminating \u201crepeat
\ninfringers,\u201d are met. See Arista Records LLC v. Usenet.com,
\nInc., No. 07-cv-8822, 2008 WL 4974823, at *4 (S.D.N.Y. Nov. 24,
\n2008); Martin v. Tumblr, Inc., No. 15-cv-8338, 2017 WL 11665339,
\nat *4 (S.D.N.Y. Feb. 10, 2017) (DMCA provision \u201cdoes not create
\na right of action, but rather creates a defense to liability, or
\nsafe harbor\u201d); see also 17 U.S.C. \u00a7 512(i)(l)(A) (an ISP will
\nqualify for the \u201climitations on liability established by this
\nsection . only if the [ISP] . has adopted and reasonably
\nimplemented\u201d a \u201cpolicy that provides for the termination\u201d of
\n\u201crepeat infringers\u201d). Put differently, an ISP\u2019s compliance with
\nthe DMCA\u2019s safe harbor provisions does not come into play until
\na plaintiff pleads a viable copyright infringement claim against
\nthe ISP in the first instance, at which point, the ISP may
\nassert its eligibility for a safe harbor as a defense to
\nliability. See Arista Records, 2008 WL 4974823, at *4 (DMCA\u2019s
\n\u201climitations of liability apply if the provider is found to be
\nalready liable under existing principles of law\u201d). <\/em><\/p>\n

In short, Business Casual cannot transform the DMCA\u2019s
\nprerequisites for a safe harbor defense into the basis for an
\naffirmative claim against YouTube. That is not how the statute
\nwas written, and it is not for the Court to permit a cause of
\naction that Congress did not create. The allegations concerning
\nYouTube\u2019s failure to terminate TV-Novosti\u2019s channels would be
\nrelevant here only if the plaintiff had first pleaded a
\nplausible claim for copyright infringement, thereby shifting the
\nburden to YouTube to establish its entitlement to a DMCA safe
\nharbor defense. <\/p>\n<\/blockquote>\n

But\u2026 therein lies a problem. Because there is no plausible claim of liability for YouTube<\/em>. There may well be a plausible claim against TV-Novosti, but that doesn\u2019t magically make YouTube liable as well. Indeed, this case is complicated by the fact that Business Casual uploads its videos to YouTube granting YouTube a license to them<\/em>. That doesn\u2019t mean that TV-Novosti gets a license, but it does mean that suing YouTube for infringement (especially direct infringement) makes no sense, as it already has a license to the work, and therefore cannot be infringing:<\/p>\n

\n


\nIn any event, the plaintiff\u2019s Amended Complaint fails to
\nstate a claim for direct copyright infringement because it is
\ndevoid of allegations casting doubt on the existence, validity,
\nor enforceability of the License. As noted in the First Opinion,
\n\u201cit is a hallmark principle of copyright law that licensors may
\nnot sue their licensees for copyright infringement,\u201d Jasper v.
\nSony Music Ent., Inc., 378 F. Supp. 2d 334, 339 (S.D.N.Y. 2005),
\nand here, Business Casual granted to YouTube a broad License to
\n\u201cuse,\u201d \u201creproduce, distribute, prepare derivative works [from],
\ndisplay, and perform\u201d the content in Business Casual\u2019s YouTube
\nvideos, see First Opinion, 2022 WL 837596, at *5. Accordingly,
\nunder the plain language of the License, Business Casual cannot
\nhold YouTube directly liable for hosting or displaying video
\ncontent that Business Casual has uploaded to YouTube\u2019s platform.
\nThat would include the hosting or displaying of the copyrighted
\nvideo segments that appeared on TV-Novosti\u2019s YouTube channel,
\nbecause Business Casual had authorized YouTube to display those
\nsegments when it uploaded the Rockefeller and J.P. Morgan Videos
\nto YouTube.
\n<\/em><\/p>\n<\/blockquote>\n

Business Casual tried to argue that nothing in the license allowed YouTube to then license that work to TV-Novosti, but as the judge explains, that\u2019s not how any of this works.<\/p>\n

\n


\nBut this argument misunderstands the
\nimport of the License and the nature of YouTube\u2019s license
\ndefense. The relevant question here is not whether YouTube was
\nentitled to authorize TV-Novosti\u2019s use of Business Casual\u2019s
\ncopyrighted video content. Rather, the question is whether
\nYouTube\u2019s use of the plaintiff\u2019s content \u2014 here, the display of
\ncopyrighted video segments that Business Casual had previously
\nuploaded to YouTube \u2014 fell within YouTube\u2019s broad rights as the
\nlicensee of the plaintiff\u2019s YouTube videos. As discussed above,
\nthe License does cover that use. <\/em><\/p>\n<\/blockquote>\n

What about contributory or vicarious infringement? No, those don\u2019t fly either. Those things require at least some level of knowledge or profiting off of the infringement by YouTube, which is not shown at all.<\/p>\n

\n


\nLike the Original Complaint, the Amended Complaint contains
\nno allegation that YouTube knew of the allegedly infringing TVNovosti videos before Business Casual lodged its DMCA takedown
\nnotices. To the contrary, the Amended Complaint alleges that TVNovosti manipulated the video content for the precise purpose of
\nevading YouTube\u2019s detection. Moreover, because YouTube promptly
\nand permanently removed the First, Second, and Third RT Videos
\nfrom its platform once it received the plaintiff\u2019s DMCA notices,
\nthe Amended Complaint does not permit an inference that YouTube
\nacted in concert with TV-Novosti.<\/em><\/p>\n

The Amended Complaint also fails to state a claim for
\nvicarious infringement. To hold a defendant vicariously liable
\nfor another party\u2019s infringing act, a plaintiff must allege
\nplausibly that the defendant \u201cprofit[ed] from [the] direct
\ninfringement while declining to exercise a right to stop or
\nlimit it.\u201d Metro-Goldwyn-Mayer Studios Inc. v. Grokster, Ltd.,
\n545 U.S. 913, 930 (2005). In this case, the plaintiff\u2019s
\nallegations foreclose an inference that YouTube declined to
\nexercise its right to stop TV-Novosti\u2019s alleged infringement.
\nTo the contrary, the allegations indicate that YouTube removed
\nthe First, Second, and Third RT Videos, and thereby stopped the
\nalleged infringement, shortly after Business Casual notified
\nYouTube of its copyright concerns.\n<\/p>\n<\/blockquote>\n

One other point that the Business Casual complaint kept making is that it took YouTube 23 days to remove one of the videos after receiving one of its DMCA takedown notices. This is used to argue that YouTube wasn\u2019t expeditiously removing infringing works. But, this is presented out of context. As the judge makes clear:<\/p>\n

\n


\nFinally, the Amended Complaint takes issue with the fact
\nthat YouTube removed the Second RT Video 23 days after receiving
\nthe plaintiff\u2019s second DMCA notice. To the extent the plaintiff
\nintends to suggest that the length of this 23-day period renders
\nYouTube secondarily liable for TV-Novosti\u2019s infringement, such
\nan argument is meritless. As before, Business Casual \u201chas not
\npointed to any authority\u201d suggesting that YouTube was obligated
\nto investigate Business Casual\u2019s complaint on \u201ca more compressed
\ntimeline.\u201d First Opinion, 2022 WL 837596, at *4. Moreover, the
\nnew allegations in the Amended Complaint indicate that YouTube
\nspent the 23-day period actively communicating with Business
\nCasual and evaluating the alleged infringement<\/b>, see Am. Compl.
\ntt 118-119, 123-126, foreclosing any inference that YouTube
\nsimply sat back and allowed the alleged infringement to occur.
\nAccordingly, the purported delay in YouTube\u2019s removal of the
\nSecond RT Video does not support a contributory or vicarious
\ninfringement claim against YouTube.
\n<\/em><\/p>\n<\/blockquote>\n

In other words, while it did take 23 days, much of that was spent with YouTube communicating back and forth with Business Casual to make sure the work was actually infringing. That\u2019s not ignoring infringement, it\u2019s making sure that it\u2019s not incorrectly taking down non-infringing videos.<\/p>\n

Of course, Business Casual immediately appealed, and copyright cases can be a bit of a crapshoot in the appeals court, including the 2nd Circuit. But this seems like a fairly slam dunk bullshit case by someone who does not appear to understand the fundamentals of copyright law, but seems more focused on creating a stupid culture war by misstating how copyright works.<\/p>\n