My struggle with false copyright claims

Kishor, who runs the YouTube channel called Moving Images, has sent a write-up on his experience with the copyright issues plaguing his channel.

Running a YouTube channel is not an easy thing, especially if one decides to make videos on an untapped and relatively unknown genre. I chose to make “video essays” on Tamil cinema at a time when YouTube reviews were ruling the space. My goal was to analyse, appreciate, and give deeper meanings to the many path-breaking yet forgotten films in Tamil. I wanted to bring to the audience’s attention, films that have long finished their theatrical run, rather than focusing on the newer, still-in-theatres films the other channels were reviewing. Finding that niche’ thing to make videos on and reaching it to an audience who’d appreciate it by itself a struggle of its own. The last thing one would want in this arduous journey is that constant barrage of copyright claims and disputes that threaten to takedown the channel you’ve built. That is exactly what I and my channel are going through. My name is Kishor and this is the story of a YouTube channel called “Moving Images”.

Before I started my channel, I did some extensive research on copyright laws and regulations. Making a video essay on a film or films involves using footage from the work in the video. Generally, using any such footage without permission would be a copyright infringement and rightly so too. It is piracy to post footage online that you do not own. But, this does not mean any use of footage from a film for any purpose amounts to copyright infringement. “Fair use” is a legal doctrine that promotes freedom of expression by allowing usage of any copyrighted material without a license and not amounting to infringement under certain circumstances. The doctrine allows unlicensed use of any copyrighted material if they are done for uses—such as criticism, comment, news reporting, teaching, scholarship, and research—to name a few. “Fair use” is a legal doctrine in the US copyright law and you can read more about it here. India has a similar allowance in the Indian copyright laws in the form of “Fair Dealings”. Act 52 of the Indian Copyright Law, 1957, states that the following acts shall not constitute an infringement of copyright, namely:

(a) a fair dealing with a literary, dramatic, musical or artistic work for the purposes of —

(i) research or private study;

(ii) criticism or review, whether of that work or of any other work;

It is important to note that YouTube follows the same guidelines as the US copyright laws for Fair use. In short, a YouTube channel making video essays on films should come under Fair use and hence could make unlicensed use of any copyrighted material as long as the videos follow the guidelines.

This is exactly what I believed in and began my channel and as soon as I released my first video, I was hit with several copyright claims. Now, YouTube follows a policy of “Guilty until proven innocent” when it comes to copyright claims. They would put the burden on the creator of the video to prove that their video is a fair use rather than the person or entity filing those claims. YouTube, however, offers a way to dispute the claims if you believe you are using the material legally. This is a three-step process where the claimant gets a chance to retract or sustain their claim at each step. The final step is where they either retract their claim or take down the video. When this happens, my channel gets a copyright strike, and like in baseball, once I get three strikes, I am out and the channel is deleted forever. But it is not all over if my video gets taken down. The last resort is to file a counter-notification which YouTube reviews and if they feel you are right, will pass it on to the claimant. The claimant now has 10 US business days to either start a legal proceeding against you or YouTube restores your video, removes the strike, and the claimant will not able to claim that video ever again. Notice how the claimant does not get penalized if they make a false claim.

In my case, I have been through all these steps and have had several of my videos taken down, only for YouTube to recognize that my videos are fair use and file counter-notification on my behalf and help me regain my videos. But the problem is that most claimants do not realize or refuse to accept fair use. They assume that it is copyright infringement if even a second of their material is used in any video. In most cases, my videos do not need to be dragged through the three-step hell and even get taken down if the claimant realized that it is fair use. But, I ‘ve been through so many of this that it has become a routine of sorts until I decided to do something about it that lead to my channel being at the brink of deletion right now.

One of the claimants I constantly get copyright claims from is “WhackedOut Media”, a multi-channel network (MCN). WhackedOut has copyright to many films in various Indian languages and has made it their purpose to file claims on any video that use their material without a license purchased from them. They tried to take down several of my videos and have taken them down too, only for me to file counter-notifications to regain them all back. But the constant battle was taking a toll on me. My videos were constantly disappearing from YouTube for weeks because of the takedown and I constantly had to worry about the strikes. To my surprise, I came to know that most of my fellow YouTubers are also constantly facing this issue as well, mostly from WhackedOut among other such MCNs. And I decided to initiate a conversation with the concerned channel hoping that this would resolve this issue for me and my fellow YouTubers too. So, when WhackedOut decided to file a claim on two of my videos, I emailed them asking for a chance to resolve this. What followed was a chain of emails and events that led to three strikes against my account and my channel scheduled for deletion.

My first email to WhackedOut was me trying to explain what my channel does and asking them to kindly retract the claims. I didn’t expect a reply as I’ve tried to email them in the past with no replies. But this time was different, I did get a reply from one Mr. Praveen Parlapelli and he wrote as such.

Hello Kishore,

We really appreciate the kind of hard work you put into these videos. Unfortunately, most of the content being used in these videos is owned by us and in no way, it is treated as ‘fair use’.

We would want you to understand that when a piece of content is bought by us, we will not only control piracy but also not allow it to be used in any of the videos.

We would also like to mention that the counter-notification can be filed only if you are the rightful owner of the content. We can also legally sue you for filing fake counter notifications for the content that has been bought by us.

If you have obtained permission from the production house, please forward us the authorization letter post which we will decide if we can allow you to monetize the video.

Hope we have answered your query.

Thank you.

As you can see, it didn’t seem Mr. Praveen knew what fair use was or what constituted as a fair use video. I explained to him in my next email about fair use and fair dealings. Notice also the unawareness he has about the counter-notification process. The counter-notification request is vetted by YouTube to make sure the video is fair use before forwarding it to the claimant. If YouTube does not find your video to be fair use, they’d reject the counter-notification. There was no way for me to file fake counter-notifications.

So I explained to him that fair use is actually a legal term and also wrote to him about Indian copyright laws. This certainly grabbed Mr. Praveen’s attention as his next email asked me links and more details on those laws. I was glad he was opening a dialogue and felt hopeful in resolving this issue both for me and my fellow YouTubers. This was his email.

Hello Kishore,

Thank you for the reply. However, we have some queries that need to be answered before we can proceed further:

Please clarify what you mean by fair dealing. Specifically, how your content falls under the category of “fair dealing.” Also, if possible, please provide the statutory section where such “fair dealing” exception is mentioned. You have mentioned that your videos are “use of artistic work for the purpose of research and criticism.” Please clarify how you are achieving this by using our videos. Our content is neither educational nor public. So, please clarify how you intend to use such material for education or public communication. Are you monetizing the content you publish on your channel? If yes, you are not allowed to claim a fair use defence. Educational use of a video does not in any way generate revenue. Even if you were using for fair use, the law clearly states that you are required to obtain our permission for such use at every instance. In case of genuine fair dealing/use, we will not charge you for such use but in all other cases you are required to pay us a license fee as owners of the content.

Just to reiterate, the fair use/dealing provision is a very narrow exception to the rights of the owner under Sec. 14 of the Copyright Act. We, as absolute owners of the content do not grant you any license to make use of our content. You are required to ask our permission each time you utilize our content in the absence of such license. Even for fair use exception, you are required to take our permission but you may not be charged for such use if it is legitimately for educational or research purposes. Please provide confirmation of your research use and we will proceed further with our conversation.

Thank you.

This was my reply

Dear Praveen,

Thank you for your queries. I am very glad we are starting a dialogue here. There are many misconceptions about fair use and I am happy you are willing to hear me out. The law I stated is Act 52 of the Indian Copyright Law 1957. Here is a link to it.

https://indiankanoon.org/doc/1013176/

YouTube has also put up the same guidelines followed by our Indian copyright laws as their regulations for Fair-use. Here is a link to US fair-use laws and about monetizing said work.

https://www.quora.com/What-is-Fair-Use-on-YouTube-and-can-I-monetize-a-video-if-it-is-Fair-Use

https://www.quora.com/What-is-%E2%80%9Cfair-use%E2%80%9D-under-US-copyright-law

and YouTube official page showing Fair-use guidelines

https://www.youtube.com/intl/en-GB/yt/about/copyright/fair-use/#yt-copyright-four-factors

To clarify your queries

2. and 3 – My videos are essays on story structure, philosophy, psychology of characters and all other film analysis related content. They are both a critical view on films and serve as educational material for anyone interested in learning the art of cinema, literature, philosophy and more. I put in a lot of effort adding my own content to these videos and they are not mere re-production of the work. I don’t post song and comedy videos from movies or an entire movie. Those are all piracy.

Here is the link to my channel

https://www.youtube.com/channel/UC3Zq7Ce0wPYsBNOQNb3y76w?view_as=subscriber

I am monetizing my videos as there are no laws stating that I cannot monetize “fair use” videos. I’ll be happy to correct myself if you show me a source stating that. I am learning too! Fair-use is basically freedom of speech and again I read through the Act 52 and it doesn’t state that I need prior permission. I’ll be happy to rectify that too if you can cite a source and am writing this email to get your approval for videos on my channel.

As for obtaining permission from Whackedout Media, I believe this chain of emails is me trying to explain the intent of my channel and getting approval from you for the existing and future videos. Once again, I am very grateful that you’ve opened up this dialogue and I will be happy to answer any question you might have regarding this.

Thanks,

Kishor

I emailed this believing that I’ve made a breakthrough in reaching out to a MCN and making them understand what fair use is and was hoping this would save not only my channel but many more like me, encouraging us all to make more educational material. But I was dead wrong. The next morning I woke up to see several more take down notices on my channel by WhackedOut and my channel scheduled for deletion. I immediately emailed Mr. Praveen.

Hello Praveen,

I just received a take-down notice for one of my video by WhackedOut Media. This is three strikes on my account from WhackedOut Media. I was trying to reach a resolution with you and am surprised to see this action. Are you aware of this? Can we please resolve this? Kindly let me know.

Thanks,

Kishor

Only to get this reply

Hello Kishor,

We have tried explaining that you cannot monetize our videos and call it a fair use. When you say that the videos whole purpose is for research and education, you cannot make money out of them. Also, we don’t see the videos to be educative in fact they are more like reviews.

In the YouTube fair-use guidelines page that you have shared, there are certain points that you must have missed. Please go through them. Attaching the screenshots for your reference.

We are the rightful owners of the content that has been uploaded on your channel, and therefore we are authorized to monetize the videos.

This was their reply and the screenshot they attached as their argument against me monetizing my videos. One can see even the screenshot they sent that the last point is that it is possible to monetize a video and still take advantage of the fair use defence. Also, it didn’t seem they read the other actual laws and acts I sent them and just saw what they wanted to see.

he law never stated anything against monetizing fair use videos and the Indian copyright laws are even more specific on the usage of copyrighted artistic material for critique or review purposes and nothing about monetizing. WhackedOut didn’t “feel” my work was educational and hence they decided to be the judge. Even going by their own words of seeing my videos as reviews, it still comes under fair dealing according to Indian laws. But I decided not to make any more arguments with them. Clearly, they didn’t understand the laws and all they cared about was money. In their veiled attempt at curbing piracy, they are also curbing freedom of speech.

As it stands, I have filed for counter-notifications again and hoping this would resolve the issue once more for the time being. But I am bringing my ordeal to everyone’s attention to educate people about fair use and how certain MCNs bully you for using content lawfully. I spend over 90 hours for every video of mine, researching them, breaking them apart, editing the essay and adding substantial portions of my own work to it. These are not mere copies of the films but rather a work of their own, and to be labelled as not educative or “mere” reviews and getting penalized by both the platform and MCNs under the guise of copyright is truly heart-breaking.