YouTube’s Latest Lawsuit Proves What We Already Knew: Copyright Law Needs Reform

By: Jennifer Martin

In August 2019, YouTube filed a lawsuit in Nebraska against Christopher Brady, alleging that Brady has abused YouTube’s copyright strike policy.[1] Specifically, the Complaint accused Brady of submitting false copyright infringement notices to YouTube as if he is the original copyright owner.[2] Once YouTube took the videos down, as it required to do under federal law, Brady would extort the actual copyright owner and demand payment before he removed his infringement notice and allowed the video to go back up.[3] This lawsuit is the latest example of copyright law’s inadequacies when it comes to sites like YouTube, which are dominated by user-uploaded content.

The Digital Millennium Copyright Act (“DMCA”), enacted in 2000, amended U.S. copyright law to crack down on copyright infringement on the internet, and to limit the liability of service providers whose users violate copyright law.[4] Most relevant to YouTube’s current lawsuit under the DMCA is Section 512, which created a safe harbor provision for service providers like YouTube.[5] In addition, Section 512(f) creates a private right of action for copyright owners and/or service providers who have been injured by material misrepresentations of copyright ownership.[6] YouTube’s only cause of action against Brady is a violation of Section 512(f).[7]

To comply with the DMCA’s take-down policy,[8] YouTube allows and encourages copyright owners to send YouTube infringement notifications if the owner believes a video infringes on their work.[9] Once a notification has been filed, YouTube removes the video, and gives the uploader a strike.[10] If the uploader believes that the infringement notification was fraudulent, or that the video falls under the “Fair Use” exception,[11] the uploader can file a counter notification.[12] However, counter notifications require the uploader to provide personal information including their home address, information that people like Brady then use to extort and harass the actual copyright owners.[13]

By filing suit, YouTube wanted to send a message to “copyright trolls,” to make it clear that YouTube does not tolerate abuse.[14] While YouTube tries to regularly take down the accounts of those who abuse their copyright procedures, the company felt the need to pursue further legal action “in this case of particularly egregious abuse.”[15]

Brady’s extortion and harassment were certainly egregious, but where is that line? Congress definitely anticipated DMCA abuse, which is why Section 512(f) creates a private right of action for those injured by fraudulent copyright representations. Having said that, does conduct need to rise to the level of Brady’s for 512(f) to do any real work? While many commend YouTube for taking a stand against trolls like Brady, this suit does seem to highlight the lack of enforcement for smaller-scale abuse of YouTube’s copyright strike policy.[16]

This gap likely exists because smaller content creators falling victim to abuse cannot afford to utilize 512(f)’s private right of action.[17] In Brady, YouTube is the plaintiff. This is because YouTube wants to send a message, but it’s also because YouTube is the only party with the resources to take legal action. Small creators injured by false copyright claims and strikes do not have the resources to go to court. While 512(f) does offer attorney’s fees, the barrier to entry is often too high for small content creators to take legal action.[18]

This is not to say YouTube’s suit wasn’t helpful in ending copyright takedown abuse. This case ultimately settled in October of 2019, with Brady agreeing to publicly apologize and pay $25,000, money which YouTube plans to donate to a nonprofit.[19] This settlement is said to highlight the “very real consequences for those that misuse [YouTube’s] copyright systems,” according to YouTube.[20] Hopefully $25,000 is enough to deter other serial abusers. However, again, this suit demonstrates the need for copyright law reform to somehow prohibit smaller-scale abuse, which can have real effects on small content creators earning revenue from their videos.[21] As for what that reform should look like, that is less clear.[22]

Europe recently approved an EU directive reforming its copyright laws, which will now hold service providers liable for copyright breaches on their site.[23] While implementing something like this in the United States would theoretically cut down on both large- and small-scale abuse, it has YouTube and its creators alike raising serious free speech concerns.[24] The directive will require streaming services to implement harsh upload filters to avoid potential liability.[25] These severe filters will bring service providers into compliance with the new law, but they seem to run counter to YouTube’s inclusive mission, which is “to give everyone a voice and show them the world.”[26]

The Brady complaint highlights flaws in current U.S. copyright law that would seemingly be solved by an EU-like approach. Such an approach, however, would seriously curb free speech, and is already receiving backlash for that very reason. Until the U.S. can appropriately reform its copyright laws, filing suit like YouTube did against Christopher Brady might be all service providers can do to protect themselves and their users from takedown abuse.

[1] Complaint ¶¶ 20-30, YouTube v. Brady, (D. Neb. Aug. 19, 2019) (No. 8:19-cv-00353).

[2] Id.

[3] Id.

[4] 17 U.S.C. § 512.

[5] Id. at § 512(c). In general, service providers are not liable for copyright infringement on their site so long as (1) they did not have actual knowledge about specific infringement; [5] (2) they did not receive financial benefit from the infringing activity; and (3) upon notification of claimed infringement, they respond “expeditiously” to remove the copyrighted material.

[6] 17 U.S.C. § 512(f).

[7] Complaint ¶¶ 36-41, YouTube v. Brady, (D. Neb. Aug. 19, 2019) (No. 8:19-cv-00353).

[8] See 17 U.S.C. § 512(c)(1)(A)(iii).

[9] Copyright Infringement Notification Requirements – YouTube Help, Google, https://support.google.com/youtube/answer/6005900 (last visited Oct. 14, 2019) (“When a copyright owner formally notifies us that you don’t have their permission to post their content on the site, we take down your upload to comply with copyright law.”).

[10] Copyright strike basics – YouTube Help, Google, https://support.google.com/youtube/answer/2814000 (last visited Oct. 14, 2019) (YouTube takes down accounts with three or more strikes).

[11] See 17 U.S.C. § 107.

[12] Copyright counter notification basics – YouTube Help, Google, https://support.google.com/youtube/answer/2807684 (last visited Oct. 14, 2019).

[13] See Ellis Clopton, YouTube suing Omaha man for bogus copyright infringement allegations, Lincoln Journal Star (Aug. 22, 2019), https://journalstar.com/news/local/crime-and-courts/youtube-suing-omaha-man-for-bogus-copyright-infringement-allegations/article_44f6e9fc-39e7-58d9-a69e-278e34efef66.html; see also 17 U.S.C. § 512(c)(1)(A)(iii) (Because federal law places liability on service providers with actual knowledge of infringement, and because YouTube theoretically gains actual knowledge of infringement every time an alleged copyright owner submits an infringement notice, the only feasible way for a service provider as large as YouTube to successfully avoid liability is to ere on the side of removal, as conducting individual investigations to identify every fraudulent copyright claim would be impractically time consuming).

[14] Julia Alexander, YouTube sues alleged copyright troll over extortion of multiple YouTubers, The Verge (Aug. 19, 2019, 12:14pm EDT), https://www.theverge.com/2019/8/19/20812144/youtube-copyright-strike-lawsuit-alleged-extortion-minecraft; see also Complaint ¶¶ 42-45, YouTube v. Brady, (D. Neb. Aug. 19, 2019) (No. 8:19-cv-00353) (YouTube is specifically praying for relief in the form of compensatory damages arising from Brady’s violation of 17 U.S.C. § 512(f), attorneys’ fees, and injunctive relief barring Brady from submitted infringement notices).

[15] Alexander, supra note 14.

[16] Katherine Trendacosta, YouTube’s New Lawsuit Shows Just How Far Copyright Trolls Have To Go Before They’re Stopped, Electronic Frontier Foundation (Aug. 21, 2019), https://www.eff.org/deeplinks/2019/08/youtubes-new-lawsuit-shows-just-how-far-copyright-trolls-have-go-theyre-stopped.

[17] Id.

[18] Id.

[19] Trendacosta, supra note 16; Timothy B. Lee, Man agrees to pay $25,000 for abusing YouTube’s takedown system, Ars Technica (Oct. 15, 2019, 3:25PM), https://arstechnica.com/tech-policy/2019/10/man-agrees-to-pay-25000-for-abusing-youtubes-takedown-system/.

[20] Lee, supra note 19.

[21] Id.

[22] See Jacob Kastrenakes, YouTube is changing how some copyright claims work, and it could result in ‘more blocked content’, The Verge (Aug. 15, 2019, 2:00PM EDT), https://www.theverge.com/2019/8/15/20806189/youtube-manual-music-copyright-claim-update-more-blocked-videos. YouTube is working to change its copyright policy, but only to further prevent the unathorized use of copyrighted material. The platform has yet to announce a desire to change its takedown policy to minimize abuse.

[23] Ryan Browne, Europe backs copyright overhaul that threatens to hit YouTube and Facebook hard, CNBC (Apr. 15, 2019, 5:07am EDT), https://www.cnbc.com/2019/04/15/article-13-eu-council-backs-copyright-law-that-could-hit-youtube-fb.html. But see Sarah Perez, YouTube CEO says EU’s new copyright legislation threatens jobs, smaller creators, Tech Crunch (Oct. 22, 2018, 9:00am MST), https://techcrunch.com/2018/10/22/youtube-ceo-says-eus-new-copyright-legislation-threatens-jobs-smaller-creators/.

[24] Mason Sands, Why Copyright Will Be The Biggest Issue For Youtube in 2019, Forbes (Dec. 30, 2018, 11:55am), https://www.forbes.com/sites/masonsands/2018/12/30/why-copyright-will-be-the-biggest-issue-for-youtube-in-2019/#37bc14a81c12.

[25] Id.

[26] About, YouTube, https://www.youtube.com/about/ (last visited Oct. 14, 2019).