Large YouTuber: Copyright Lawsuit vs Fair Use A channel with close to 1.5-million subscribers on YouTube, H3H3Productions, is being sued on the grounds that their video infringes another author's copyright. Their channel essentially reviews other YouTube videos in the form of satire, mockery, and comedy. I've been watching them for over 6-months, so first-and-foremost I'm a fan. But after having thought about this situation for a few days, I'm not entirely sure if the lawsuit is unfair. In H3H3 videos, they don't just show small clips or images from videos that they make fun of; they show almost the entire work of the targeted author's video but in the form of small clips. The format is essentially: Show a clip/segment of the other person's video Pause said clip Change scene from the reviewed video to H3H3 making commnetary on that particular clip/segment Pick up where you left off on the video and show the next 5-10 seconds Rinse and repeat From watching their videos, I'd estimate that H3H3 shows at least half of the other author's video more than 95% of the time. To be honest, when I watch the original work (which is rare) or have happened to see it before hand, I'd say that H3H3 uses more than 75% of the video they review within their own video. H3H3 is claiming in their defense that the grounds of Fair Use is in their defense and thus does not breach any copyright. Does it?
Only a court can decide if use is fair. As Dale stated, we will know whether it was or was not legally fair when a court decides, and it ceased to be appealed. Unfortunately, there is no formula. Remember that fair use is an exception to rules that make copyright infringement illegal, so it occupies a narrow space practically by definition. Fortunately this was already decided (yes, I recognize that this is an old question) Judge Katherine B. Forrest decided in favor of your favorite YouTuber: The Court has held that the Klein video constitutes fair use, and further that the Klein video does not infringe plaintiff’s copyrights. and further that: But even if this Court held the Klein video is not fair use, the Court would still dismiss Claim II because defendants clearly had a subjective “good faith belief” that their video did not infringe plaintiff’s copyrights. Cf. Lenz, 815 F.3d at 1153. It is undisputed that defendants understand the concept of fair use and have an established practice for ensuring their videos make fair use of copyrighted material. But that answer isn't entirely satisfying, is it? Let's get specific. Fair use seems to be something that should be clear to both parties: the copyright holders and the user of copyrighted content. While it is true that the percentage of original content may be of concern, there is no specific percentage nominated in Title 17 Chapter 1 Section 107 of the US Code. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include— (1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (4) the effect of the use upon the potential market for or value of the copyrighted work. The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors. It takes vigilance on the part of both parties to cohabit this narrow law. Fortunately, YouTube has recently taken measures to ensure that use that should (presumably in their view) be judged as fair will remain live on their site while a dispute process is pursued. This procedure resolves cases outside of formal legal battles, which can be costly for both parties. However, YouTube has pledged to pay legal fees of content providers that are sued for copyright infringement, in special circumstances (esp. when the use was fair, and when a claimant is abusing, again presumably as determined by some legal counsel at YouTube). They discuss similar matters in their FAQ page. Why did YouTube let an abusive claimant remove my video? YouTube takes action to address cases of abuse and misuse in our copyright takedown processes. While we cannot comment on specific cases or our processes, we do look into abuse of our copyright tools and processes, and have a zero-tolerance policy for claimants we've deemed abusive. Misuse of the copyright process (for both takedowns and counter notifications) can result in termination of an account. And remember that courts love precedent Future cases will likely leverage the decisions made in the case you mention. And while the following does not have any real legal value, you may find comfort in knowing: there are many YouTubers out there that heavily leverage others' content, and their videos are still up. Again this is not strictly speaking a precedent, but you can safely assume that in cases where a high-profile YouTuber (say CinemaSins, for instance) uses content from many content owners, and uses a great deal of it, they will likely have come up against claims of unfair use, and have emerged with an intact channel. The aforementioned avenues that YouTube provides should be utilized wherever possible to stay out of court.
It is, in most jurisdictions, not a crime to download YouTube videos. For criminal law, the answer is that it is not illegal. In many jurisdictions, downloading music or video of any kind from the internet is not a crime. Thus, police has no power to punish you for downloading, and even less power to shutdown such "downloader" websites. YouTube's Terms of Service seem to disallow such downloads so YouTube has the right to terminate the agreement with the downloader. They may prevent you from viewing any more videos, for example. However, I think Google does not even have a technical measure in place to do that. Google is not interested in preventing you from using YouTube (its servers can handle that) and that is pretty much the only punishment it can use. Google could use the Terms of Services to say that the downloader-websites are breaking them and thus should not have access to YouTube. The websites could be sued for breaking the Terms of Services (and the court could order them to stop) and Google can block those websites from accessing YouTube by technical measures. It appears it did so in at least one case. Google could sue you (or the websites) for advertisement revenue loss, but it is unlikely. In theory, Google loses advertisement revenue from the video playbacks you would have done on YouTube but did not play because you downloaded the video and played it offline (contrary to the Terms of Service). Google might attempt to sue a downloader website on this basis and try to make it give it money. It would be difficult for Google to prove that it deserves such money, though. I cannot imagine how it would prove that "you would have played the video online, again, with advertisements, if you didn't download it. Note that when you replay a video from browser cache, advertisements do not replay. Why Google doesn't sue downloader-website more often? It's expensive. Google could pay a lot of money to shut down a website via court order but if it really wants to do so, they can apply a technical measure (such as IP block) instead. It is much cheaper and has the same effect. This may change in the near future. There's a some talk around about European court rulings and directives that may change this. It is quite possible that in the near future, even viewing illegally uploaded music on YouTube will be criminal. I find this doubtful because of the difficulty of proving knowledge ("How was I supposed to know that it wasn't an official clip?"). As for whether downloading to a file (as opposed to downloading to the browser cache) will become criminal, I really doubt that.
may require that you obtain license rights from third-party owners or licensors of content that you include in your text inputs (Emphasis mine). Based solely on the excerpt above, yes, you have the copyright on the audio files if you created the source material, as you are the creator, using Amazon Polly as/to generate a "tangible medium". One of the central rights granted by copyright is to control translation into a different medium (in this case, from text into audio), as is the right to control distribution, which is what this excerpt is talking about. "Third party" in this case means neither you nor Amazon. Basically, Amazon is informing you that using their software on someone else's copyrighted material does not grant you copyright on the audio recording.
This kind of piracy is unfortunately common. When your copyright has been violated, your available response is to sue the infringer. Yes, this costs money, and yes, many infringers get away with it. In the Free Software/Open Source community, a couple of actors including the FSF, gpl-violations.org/Harald Welte, and the Software Freedom Conservancy have sued GPL infringers. But they can only do that for copyrights that they hold themselves. For example, the FSF holds copyright for the GNU userland, whereas Welte and Conservancy hold copyright for parts of the Linux kernel. They do not hold copyright for your software so they cannot enforce the AGPL license on your behalf. What can be done fairly easily is to file a takedown request with platforms that host the infringing content. Under various safe harbor laws including the US DMCA, a platform is not responsible if they accidentally host infringing content uploaded by users. However, the platform has to take the content down if they're notified that the content is infringing. For example, you could file a DMCA takedown request with GitHub to take down their repository, in case they are using GitHub. The drawback is that a takedown notice can be contested by the alleged infringer, in which case the content is reinstated and you would have to sue. The platform is not allowed to make its own determination about whether you or the infringer is right.
This seems to be a mix of question about law and a meta-question about this site, but I'll treat it as an on-topic question about law. The author of a question, or answer, owns the copyright to their contributions, and they can re-publish to their heart's content. Any user who posts here grants a license to SE and other users to use content posted here, so I don't have to ask you permission to quote you. As part of the permission granted by SE to use this website, you have agreed to &quot;follow the rules&quot; set by SE. There are many rules, some spelled out more clearly that others. For example, if you post a question, you indirectly agreed that your content can be upvoted or down-voted. Certain content can be &quot;closed&quot; and deleted, when the content is deemed to violate the rules in particular ways (is spam, porn, abuse, or judged to be poor-quality). Judgment (on different matters) can be rendered by community managers, moderators, or other users. The agreement is here, see especially here. If we take the post that you linked to, it is quite possible that it was deleted because it is not a general legal question, in violation of the acceptable use policy. If you want a historical analysis of your particular case, it should be asked on Law Meta.
Counter notices are described in 17 USC 512(g)(3). It starts with the requirement for "A physical or electronic signature of the subscriber" (and a statement under penalty of perjury...). Supposing that you can't get anywhere with finding the contributor even via a subpoena, then you're stopped there: you can't swear on behalf of someone else. Paragraph (f) also says that if a person files a false infringement claim, they become liable for any damages, including costs and attorneys' fees, incurred by the alleged infringer, by any copyright owner or copyright owner's authorized licensee, or by a service provider, who is injured by such misrepresentation, as the result of the service provider relying upon such misrepresentation in removing or disabling access to the material or activity claimed to be infringing, or in replacing the removed material or ceasing to disable access to it but it's not immediately obvious that you would suffer damage by taking the material down (not immediately obvious doesn't mean obviously not true). A case could be made, but it's risky. In Online Policy Group v. Diebold, Diebold was hit with substantial damages basically for having made up a theory that certain email discussion was infringing when it was clearly fair use. If a person actually lies about being the copyright owner, that would probably be viewed even more dimly by the courts. Your 4th argument gives you no traction: if an infringer posts infringing material and transfers copyright on the web page, but they don't hold copyright, then that transfer mean nothing. As for the other arguments, your attorney will have to suggest an advisable course of action. S/he might advise that your evidence is so strong that you should just ignore the takedown; or that you should take the content down and then sue for damages; or take the content down and lobby your congressman for a change in the law. [Addendum] I will reiterate my recommendation to get a lawyer. I believe that under the law, the risk to you would be the situation where the person prevails in an infringement suit against you. Outside of the "mere conduit" safe harbor, you have to participate in the notice and takedown scheme in order to "stay safe" (also you have to do so quickly). You have identified a potentially huge flaw in the system. Theoretically, criminal charges of perjury and paragraph (f) damages would be enough to deter ordinary wrong-doers, provided that you can really prove that someone else is the copyright holder. But the cost of litigation is not zero and the chances of winning are not 100%. The law does assume that all parties tell the truth, indeed the law requires a "penalty of perjury" statement. Since counter-notice is also part of the legal dance, I would conclude that you do have to write yourself a counter-notice. Then if there is a suit, you have satisfied the requirements of the law.
To answer part of your question, the takedown and restoration process of the DMCA is not required. It is a legal way a hosting site can stay in the clear for copyright infringement. Therefore, if the site didn't take down what you complained about, they're participating in copyright infringement (if that's what's happening). Since they did not take down the material (assuming your DMCA was in the right legal form), if you do sue over copyright infringement you can sue the site as well as whoever uploaded your stuff to the site. I don't think that linking to your stuff would itself be copyright infringement, so I'd suggest consulting a lawyer specializing in IP.
I believe the author has published it online. I agree. It is posted at his publisher's website. However, I am unsure if I'm allowed to read it. This answer assumes you are in jurisdiction whose copyright laws is based upon the Berne convention (i.e. the civilized world + USA). Assuming it was the author published it online, it is perfectly legal to read it. Technically, the author is performing his work by putting it online, and by reading it, you are just enjoying his performance. Also, if you are in a jurisdiction with an explicit exception from copyright for personal use, or where fair use allows making copies for personal use, it would also be legal to download it, or to print it on paper (but for personal use only). As for downloading and printing for non-personal use - that is not legal in Berne jurisdictions.