Why I'm Suing YouTube.

Why I'm Suing YouTube.

Show Video

This is a video that YouTube  does not want you to watch. It’s also a video that I did not want to publish. For over a year, my team and I have been  conducting an investigation — an investigation   into the theft of our videos by a YouTube channel  owned-and-controlled by the Russian government. But as our investigation unfolded, we  began to realize that what we had uncovered   was so much bigger than anything  we could have ever imagined.

This is not a political video. Nor is it a fictional one  — although, I wish it was.
 This is a true story. A story about YouTube’s intentional efforts   to undermine the United States of America  in collusion with the Russian government. It’s also a story about copyright infringement  and YouTube’s desire to provide a safe haven   for copyright pirates.

Now, before you click away, I know that copyright  may not sound like the most exciting topic. I get that. But trust me when I tell you that is an  important one especially if you create   original content here on YouTube.

As this video will prove, executives at  YouTube are turning a blind eye to brazen,   repeated, and obvious infringements of  our channel’s copyrighted videos in an   effort to protect the Russian  government’s YouTube channels.
 To that end, this video will also prove that  YouTube has acted, and continues to act,   at the direction of the Kremlin. Even if it means violating YouTube’s  own Rules & Policies in the process.

As you will see in this video, a brazen copyright  pirate has been stealing our videos for years.
 Upon learning about this about a year ago,  I filed takedown notices with YouTube.
 The pirate received three copyright  strikes and was subsequently terminated   under YouTube’s 3-strike policy. Now, had this pirate been your average channel,  well, that would’ve been the end of this story.
 But unfortunately, the pirate in this story   is not your average channel —  it’s the Russian government. Indeed, RT, also known as Russia Today  — an entity that is owned-and-controlled   by the Kremlin — has been stealing  videos from our channel for years.

The only reason that we never knew was  because they removed our watermark and   then changed the saturation to avoid detection. But rather than apply its policies to Russia’s  channels, YouTube has decided to do otherwise.
  Immediately after RT was shutdown following  three copyright strikes from our channel,   the Kremlin offered YouTube  an ultimatum: bring back RT   immediately or YouTube and Google would  be banned from the Russian market.
 Less than four hours later, RT was back.
 Ever since caving to Russia’s orders,   YouTube has since launched an attack against  our channel, to destroy our copyrights.

As exposed in this video, YouTube has taken  the unbelievable position of not only defending   a pirate’s brazen theft of  our videos, but in fact,   YouTube is actually attacking the copyrights of  our channel –– and by extension, your channel.
 According to YouTube’s lawyers, our videos are not   “copyrightable” because they 
quote “consist  entirely of public-domain images.” End quote.
 YouTube’s lawyers have even gone so far as to call   our copyright claims against RT  
“misbegotten” and “dubious at best.”
 By the end of this video, I invite you to judge   for yourself whether our claims  are “misbegotten” and “dubious.”
 Now, if you’re a long-time fan of our channel,   then you already know that what YouTube’s  lawyers are arguing is simply not true.

Of course our videos are original.
 Our team spends thousands of hours  creating stunning 3-D parallax visuals;   visuals which have become a signature  hallmark of our brand around the world.
 Also worthy of note is that the content  stolen from our channel is protected by   our copyright registrations which were  granted by the U.S. Copyright Office. What I believe is perhaps most disturbing  about all of this is that if YouTube   is successful in its arguments, then YouTube  will be successful in destroying the copyright   protections not just for our channel but  potentially millions of other content creators.
 Of course, YouTube knows this.
 They just don’t want you to know this.

To understand why YouTube is attacking  the YouTubers who make YouTube,   well, YouTube, you have to  understand the larger picture.
 YouTube is at war with America’s copyright law.
 For over a decade, YouTube’s parent company,  Google, has been quietly paying millions of   dollars to prominent legal scholars to echo  support for anti-copyright legislation.
 Or, as Google would call  it, “progressive thinking.”
 Google handsomely pays its network of influential  legal minds to preach its anti-copyright agenda to   judges, politicians, and university students:  all for the express purpose of trying to move   public opinion toward what Google believes  America’s copyright law should look like.
 As exposed by the Wall Street Journal in 2017,  Google has a “wish list” of policy-related topics,   a secret menu if you will, which it  provides to respected legal professors.

In exchange for publishing academic research on  America’s laws concerning, anti-trust, copyright,   privacy, and other topics that directly affect  Google, Google provides these academics with   “research awards;” ranging  from $5,000 to $400,000.
 When you read these Google-funded papers,  you will find an unsurprising theme:

they   all promote legal opinions  that support Google’s business   model;

weaker copyright protection, watered-down  privacy laws, and more regulation; presumably,   
to make it harder for new startup  incumbents to compete with Google.
 As Forbes put it, it is a “secret  academic influence-peddling   effort by Google to shape government  policy to suit its business needs.”
 And the most insidious part? While this may be legal,  there’s rarely disclosure.
 One study found that more than half  of all Google-funded academic research   concerning topics that directly affect Google,   conveniently forgot to mention that  their research was funded by Google.

And it’s not just academia.
 Google also funds a number of cleverly named  “non-profits” with harmless-sounding names   like The Center for Democracy and Technology,  Public Knowledge, and even the venerable EFF.
 Over the past year of our conducting our  investigation, I found it remarkable how these   “charities” oftentimes appear before  Courts in important cases that Google   is not actually party to,  but would be affected by.
 These organizations try to masquerade  as “independent third-parties.”

But they’re not independent.
 They are, in fact, funded with millions of  dollars from Google, oftentimes run by former   Google lawyers, and make legal arguments  that benefit, you guessed it, Google.
 If you’re still confused as  to why YouTube lobbies for   anti-copyright policies, policies that hurt  its own alleged “community,” it’s because Surprise! It helps YouTube make more money.
 See, here’s the dirty truth that everyone at  YouTube knows, but no one dares to talk about:

 YouTube. profits. from. copyright. infringement.
 And it profits significantly.

This is an open secret.
 You don’t have to look hard on YouTube to  find boot-legged movies, entire episodes of   
TV shows like Family Guy with tens of millions  of views, and other obviously pirated content.
 Why does YouTube turn a blind eye?
 Simple: because pirated content is  not viewed as a liability at YouTube. 
It’s viewed as an asset.
 In fact, copyright infringement is the  foundation of YouTube’s entire business.

And that is by design.
 See, contrary to what YouTube says publicly,   YouTube does not care about  copyright infringement.
 What YouTube cares about is its *perception*  about caring about copyright infringement.
 This is not “my theory,” — it’s almost a  verbatim quote from YouTube’s own co-founder,   which was exposed in the infamous  Vimeo lawsuit a few years back.
 By my calculations, YouTube profits  several billion dollars, every year,   from pirated content uploaded to the site.  And that is on the conservative side.

Ladies and gentlemen, let  there be no doubt:

YouTube   knowingly profits from copyright infringement.
 And it is, in fact, precisely this reason for  why YouTube is lobbying to convince legislators   to enact new laws. Laws that would make it harder  for legitimate rightsholders — people like you   and me — to shutdown the accounts of bad actors.
 Put simply: the harder it is to shutdown  the accounts of copyright pirates,   
the more money that YouTube makes.
 Think about it.
 As a platform that relies on  user-uploaded content, YouTube   needs more content to continue growing:  lawful or otherwise, it doesn’t matter.

In the eyes of YouTube, the only thing  that matters is fueling the algorithm.
 YouTube’s executives understand this.  It’s why YouTube considers watch-time   as its most important metric.

At the end of the day, the name of the game is   keeping you on the website so that  YouTube can serve you with more ads. Reducing the amount of content available on  YouTube’s website subtracts from this chief goal.
 It’s really that simple.

With this video that you’re watching  now, I am blowing the whistle.
 Enough. is. enough.
 In my view, there is no difference  between copyright pirates and the   websites that seek to 
harbor them.
 It is time that YouTube  finally be held accountable.

It is time that someone finally hold  YouTube’s feet to the fire — to force   it to live up to its own alleged principles.
 It is time that someone not only call-out  YouTube for its willful corruption,   but actually takes action to put  an end it — once and for all.
 And so, as you may have heard, I have filed a  lawsuit in the Southern District of New York. Two of them, actually. One against YouTube for refusing to apply its  copyright policies to the Kremlin’s channels,
and   another against Russia Today; a proxy of the  Russian government, for copyright infringement.
  These lawsuits are a big deal — the  outcome of these cases will forever   affect the copyright law in this country and  most certainly the very future of the internet.

If you are a fellow content creator, please, I am  pleading with you — pay very close attention to   this video because the outcome of these cases  will have a direct impact on your channel.
 How so?
 Well, if Business Casual loses, it will become   virtually impossible for you to shutdown  the channels of obvious copyright pirates   who brazenly and repeatedly steal your  videos – at least, not without first   spending hundreds of thousands of dollars and  years in litigation for each and every pirate. If this sounds insane to you  or if you don’t believe me:   buckle up, grab your popcorn, and get ready. Because as you will see, this is exactly  what YouTube is trying to achieve.
 YouTube is trying to pull a fast-one,  on all of us, in broad daylight.
 I will not allow it to happen.

Before we dive into the details and  expose YouTube, on its own website,   I just want to mention that you don’t have to take  my word on anything that I mention in this video.
 I ask that you look at YouTube’s own  publicly-available court filings for yourself. Okay, lastly, before we get into things, let  me just quickly highlight the three principal   allegations that I will prove to you over  the coming hour with overwhelming evidence.
 Allegation No. 1: YouTube is  attacking Business Casual’s   copyrights to protect and advance the  interests of the Russian Federation.

Rather than defend a content  creator who makes original videos,   you’ll see first-hand how YouTube has  instead chosen to stand behind an obvious   copyright pirate –– one that is not only  funded-and-controlled by the Kremlin no less,   but one that illegally downloads videos from  other channels, erases their watermarks,   and then removes the color from their  videos, to try to avoid getting caught.
 Allegation number two: YouTube does not equally   apply its Rules and Policies to  all channels on its platform. In fact, as you will learn, YouTube actually has a  secret off-the-books policy: a policy that is only   available to the Russian government and other  channels that YouTube deems as “special.”

 Under this secret policy, channels belonging to  the Kremlin are not actually channels but rather,   “content owners,” and therefore can receive  up to 35 copyright strikes, every single year,   without ever facing termination.  Much more on this later.
 Allegation number three: YouTube is trying to   make it harder for you to shut-down  the channels of copyright pirates.
 As you’ll see at the end of this video,   YouTube argues that it possesses the  right to “sub-license” your videos;   essentially granting YouTube the ability to  basically do whatever it wants with your content.

According to YouTuber’s lawyers:  when you sign-up for YouTube,   YouTube can never be held liable  for copyright infringement.
 Well, YouTube’s position is that it can go behind  your back and enter into licensing agreements   with copyright pirates on your behalf ––  including with, but not to limited to;   Russian state-owned television channels, without  your knowledge. Much less your approval.
 But it gets worse, because after providing pirates  with a license to exploit and monetize your video,   YouTube also argues that it’s entitled to then  split the revenue from that pirated content   on a 55/45 basis. But not with you, obviously.  But rather, with the copyright pirate.

55% to the thief — 45% to YouTube — 0% to you.
 This is what YouTube is actually  arguing; it is all in the record.
 As you can imagine, YouTube is terrified  by our lawsuit; and rightfully so.

These unlawful policies enable YouTube to generate  billions of dollars a year in illicit profits.
 YouTube knows that losing this case would  establish a legal precedent effectively   requiring YouTube to shutdown the accounts  of millions of obvious repeat infringers   from its website; just like the channels  of those posting feature-length movies and   Family Guy episodes that I mentioned earlier.
 YouTube is determined to make  sure that doesn’t happen.
 Since filing this case, Google has  been on a relentless crusade to get   our lawsuit thrown-out at whatever cost necessary;   even if it means lying to a federal  judge — repeatedly — to protect Russia.
 But YouTube will not be successful.
 At the end of this video, I’ll walk you  through YouTube’s Motion to Dismiss,   point-by-point, and we’ll expose their  arguments together. It’ll be fun.

Without further ado, let’s rewind to the  beginning of this story so I can explain   how this whole situation came to  be.

It’s the last day of 2020.
 I’m minding my own business, conducting  research for our next documentary about   Cornelius Vanderbilt.

And then this happened.
 What you’re seeing on-screen is a  television broadcast from a Russian   state-owned outlet called “RT,” or  more specifically, “RT Arabic.”
 If you’re a long-time fan of our  channel, this may look familiar.
 That’s because it’s actually  from our most recent documentary:   J.P. Morgan: How One Man Financed America

For those of you who do not  live in the Middle East,   RT Arabic may not be familiar to  you; it certainly was not to me.
 For context, RT Arabic is the largest  news channel in the Arabic world.
 With tens of million of weekly viewers, its  influence in the Middle East is unparalleled.

RT   Arabic broadcasted twenty-eight copyrighted  scenes from our J.P. Morgan documentary — nearly   a minute-and-a-half of our video — to  millions of households via satellite,   and, of course, through its YouTube channel.

Now, before going into the  details of these infringements,   it’s important that you understand  the dark forces behind the infringer.
 See, RT Arabic is but one cog in a much larger  machine — and, an insidious one at that.
 A machine whose wheels are greased  with lies and whose product is hate.
 RT, also known as Russia Today, is  Vladimir Putin’s propaganda machine.
 Those aren’t my words, but the  words of the U.S. State Department,  

Intelligence Community, amongst  many other vocal critics.
 Even RT’s own Editor-in-Chief, Margarita Simonyan   has referred to RT a “an information weapon  to be used against the United States.” Okay, so, I added to the evil  laugh track to the end there. But I digress.
 When it comes to Kremlin propaganda  on YouTube, you don’t have to look   hard to find all kinds of vile content  from U.S. election conspiracy theories,   to anti-Semitic tropes, to deadly Coronavirus  disinformation — of which, there is a lot.

Make no mistake: RT is a Kremlin-funded  operation with a singular mission:   to undermine the interests of  the United States of America.
 If you don’t believe that, just follow the money. RT receives hundreds of millions  of dollars, or virtually all of   its funding,
from the Russian government.
 And that brings us back to YouTube.
 See, the Kremlin’s weapon of choice  for disseminating its propaganda   is not Twitter.
 Nor is it  Facebook, believe it or not.

It’s YouTube.
 Unlike other social media platforms, where your  posts get buried under a sea of subsequent posts,   YouTube is different.
 YouTube videos are evergreen: they aggregate  more traffic after their publication, not less.
 The U.S. Intel Committee is  well-aware of this; as is YouTube.
 It’s why the U.S. government calls  YouTube Russia’s "vehicle of choice”   for spreading its propaganda.

So with that in mind, let’s get  back to RT’s theft of our videos.
 RT used a third-party website to  illegally-download our J.P. Morgan documentary.
 After ripping our video, RT  then used a digital eraser to   scrape-off our watermark — 
which they  replaced with their own watermark.
 But they didn’t stop there.
 RT also went-on to display a banner,  on-screen, telling their millions of viewers   that the content being broadcasted  came from their channel — not ours.

And not this would make it okay, but RT also never   provided us with any credit in its video  description, on-screen, or anywhere else.
 Russia Today did everything they could to  pass-off our original video as their own.
 They also went to great lengths  to make sure we’d never find out.
 If you look closely, you can see that  RT removed the saturation from our   video,
sped-up certain parts, and even  added a filter effect for good measure.
 For those of you watching who’ve been making  videos for a long time like myself,
you’ve   no doubt seen these malicious  tactics before –– perhaps in   dealing with copyright pirates who’ve  stolen videos from your channel.

RT implemented these changes for one  purpose: to. avoid. getting. caught.
 They’ve never disputed this.
 Nor have they ever disputed  illegally downloading our video.

I mention all of this for a few reasons.
 First, it tells you everything that you need to  know about the bad actor in this case — 
a bad   actor that we’ve been forced to deal with over for  a year; not to mention spend hundreds of thousands   of dollars suing, which is required under  YouTube’s policy, 
which we’ll talk about later.
 I also mention it because it tells you even  more about YouTube and its true colors.
 If this was any other channel, YouTube  would have terminated this account.
 At a minimum, RT has materially and repeatedly  violated YouTube’s Terms of Service.

But YouTube doesn’t care.
 Instead, YouTube stands  behind RT; defending them.
 As you’ll see later, YouTube’s lawyers have the  gall to argue that RT’s admittedly unauthorized   use of Business Casual’s copyrighted material is  somehow justified under the “Fair Use” doctrine.
 It is laughable on its face.
 I also mention this because it ties into  how we discovered RT’s infringements.
 See, normally when someone steals a video  from your channel, YouTube alerts you.

When you click on the alert, you can  see how much of your video was copied,
a   link to the infringing  video, among other resources. But because RT deliberately circumvented  YouTube’s anti-infringement technology,
   we never received any such notifications.
 In fact, the only reason that we discovered RT’s  infringements is because our Director of Animation   just so happens to live in  Morocco and speaks Arabic.

It was pure chance that one of our team  members just so happened to be watching   Arabic television when he stumbled upon  the video that he personally edited.
 Immediately after finding RT’s  video, he sent me a message.
 Like any other infringement of our content, I  filed a copyright takedown notice with YouTube.

This is something that I’ve  done many times before.
 Over the past decade of making videos,   I’ve probably filed well over a thousand  takedown requests with YouTube.
 Copyright infringement is nothing  new, nor unique, to Business Casual.
 Just like every other big channel, we deal  with copyright infringement all the time.

Nine days after receiving our takedown request,  YouTube removed RT’s infringing video and applied   a copyright strike to RT Arabic’s channel.
 Now, at this point — we  thought that that was that.
 The situation was over, right?
 About a week later, I received this email from  RT’s Copyright Producer, Ms. Karyaeva Albina.
 Karyaeva appears genuinely confused as to why RT  received a copyright strike from Business Casual.

Her email states that the content  in question is “public domain.”
 She wants to know why RT Arabic  received a copyright strike.
 Now, before going any further, it’s important  to understand what she’s referring to here.

What does public domain mean?
 And, as also a follow-up to that: do you need to  register your work in order to hold a copyright?
 To help answer these questions is  the Russian President himself.
 Howdy Comrade and Hello Business Casual fans. It is me Vladdy Daddy! Let's talk about copyright and public domain.   When you create something original, like a  painting or a movie, and then you publish it,   your work is instantly protected by this  magical legal forcefield called "copyright." This is thanks to long-standing agreement called  the Berne Convention, of which Russia is part of.

Under this international treaty, a copyright  exists starting from the moment that that   work is fixed, or in other words, when it  is published — not when it is registered. In fact, the very essence of the  The Berne Convention is that you   do not need to register your work  with any government because... copyright is automatic baby! Once you have a copyright, you are granted a  temporary exclusive license to that content.  

It's sort of like being your own oligarch. Now, bear in mind:a copyright is only temporary.  Eventually, a copyright will expire and die. Just like in my political  opponents! Am I right? :P Just kidding! When a copyright expires, it enters  what is known as the "public domain." This simply means that anyone  can now use that content   because it is no longer protected by  its previously exclusive monopoly. Thanks Vlad. Okay. So, RT’s "Copyright  Producer," who ironically appears to know  

nothing about copyright, is basically  saying that Business Casual should   not have taken-down RT Arabic’s  video because our video — which,   again they illegally-downloaded from our  channel — 
is not protected by copyright.
 But that is where Ms. Albina  is tragically mistaken.
 See, RT Arabic’s video did not use public domain  images from a place like the Library of Congress.
 Had RT done that, well,  that would have been fine.

But that’s not the case here.
 To understand why Business Casual’s  videos are not public domain,   all you need to do is give them  a brief and casual viewing. 
To help explain how our 3-D visuals  are produced, is the late J.P. Morgan.

Oh, hello there Business Casual  fans! I didn't see you there. It's me, John Pierpont Morgan! Let's take a look at some  copyrighted material that RT   admittedly ripped-off from Business  Casual's most recent documentary. What you see on screen is not just an image. If you look closely, you'll notice  that it's actually a 3-D animation. Let me show you how this works. This  scene was created by layering several   different images on top of one another  into a carefully constructed 3-D model.

After placing each image, and determining  the appropriate amount of space between   those images images, a virtual  camera moves through the scene. This 3-D visual effect, known as parallax,  is what provides Business Casual's visuals   with its signature depth-of-field.  This effect cannot be achieved by   merely "zooming-in" or "panning"  across a two-dimensional image.

Before a photo can be placed into a 3-D model,  it must oftentimes be completely reconstructed. Business Casual uses digital paintbrushes  to painstakingly draw new facial features   for various characters. Like a new nose for a  person's face, a new set of eyes, and so forth. It's as much an artistic  process as a technical one.

For example, on the left-hand side of your screen,   you can see a public domain image of  myself from the Library of Congress. Notice the creases in this photo,  the pixelation, the not-so-dark suit,   and yes... I'll admit it, my less than  appealing nose caused by my acne rosacea. Okay, now let's see what Business  Casual's restored version looks like. Wow! Just look at this handsome fellow.  Notice how the creases have been removed.   The background has been darkened. Just  look at those piercing eyes and vividly   sharp pupils. And check out my suit. It  looks like it was just pressed yesterday.

After completing the restoration process,  the next phase can begin: image extraction. Business Casual begins by analyzing the  scene specifically looking for people,   buildings, and other assets that can be  cut out using a digital pair of scissors. These assets will become  their own separate images. For example, notice how this crowd  shows several groups of people. Some of these spectators are closer to  the camera than others. And so, Business   Casual begins by extracting this first group of  people from the image. This becomes layer no. 1.

The next group of people are then  extracted, becoming layer no. 2, and so on.   After cutting out each layer, each of these  images are then placed on top of one another. This process is known as layering. It  is not only extremely time consuming but   requires tremendous creativity.

If the images are too far apart,  the 3-D effect becomes distorted. On the other hand, if the images are too close  together, the optical effect is not as pronounced. And because no two scenes are ever the same,  Business Casual spends a great deal of time   manually tinkering with the optimal distance  between the images to achieve the best 3-D result. After each layer has been placed,  the final phase can begin: animation.

Animation is the process of moving a virtual  camera through the 3-D model. Sort of like how   a director moves a camera on a movie set by  using a camera track. By moving the camera,   you can see what was once a 2-D image  "come to life" right before your eyes.

If a picture speaks a thousand  words, parallax speaks a million. But business casual goes even further than this,  oftentimes combining several different images,   from different eras, to create  entirely new works of art. For example, this crowd that you see was  never actually present before me. Indeed,   this crowd was cut-out, or "photoshopped," from  a different public domain image — one of Teddy   Roosevelt giving a campaign  speech in New York in 1905. I wasn't even in New York  when this photo was captured.   I was vacationing in Monte Carlo in 1912.

Business Casual combined two  completely different photos,   from two completely different time  periods, and place them into one   3-D model; creating an entirely new  and original scene in the process. Thanks, J.P.
 So, surely this highly-creative and original  production process is more than you need for   warranting copyright protection, right?  
 Well, according to YouTube: no.
 Or should I say..

. Nyet.
 Indeed, all of this just  isn’t enough for YouTube.

According to YouTube’s law firm, Wilson  Sonsini, Business Casual’s production   process that J.P. just described is  insufficient as a matter of law.
 Indeed, according to YouTube,  our videos are simply unoriginal   and “not even copyrightable to begin with.”
 Don’t believe me?
 Let me show you a few quotes  from YouTube’s lawyers,   as well as a couple from Russia’s  [lawyers],
 narrated by Morgan Freeman. "The only 'originality'  that Business Casual claims   is the way that those images were displayed." "Even if RT copied content  from Business Casuals videos,   the content is not copyrightable to Plaintiff  to begin with. Or, at least, RT has a very   strong copyright-ability defense. RT also very  likely has a very strong Fair Use defense."

"Only a few seconds worth from 3 of  RT's thousands of videos are in dispute,   and those momentary segments consist  entirely of public domain images." "Business Casual's videos use numerous  century-old public domain photographs." "RT Arabic's use of short video snippets  of historical public domain images   and nothing else from business casuals videos  was fair within the meaning of U.S.C 17 §107." Okay, so, full disclosure: the real  Morgan Freeman was slightly out of   our budget for this video. But  he does sound like him right?
 Anyway. Just for fun, try covering up the names  of the attorneys from these quotes and see if you  

can figure out which are working for the Kremlin  and which are working for Google.
 Good luck.
 Indeed. Lawyers on behalf YouTube and Russia  are each arguing to a federal judge the same   talking points: that our videos, here at Business  Casual, are unworthy of copyright protection.
 YouTube’s alignment with the  Kremlin is not just appalling. It’s blood-boiling.
 YouTube’s false and misleading  claim — that our videos are   “unoriginal” is not just a brazen lie, and  an obvious one at that — it’s an insult.

It’s an insult to our team of editors who work   around-the-clock to make original  content for YouTube’s platform. Not to mention, an insult to every  other creator in the YouTube community.
 Most egregious of all, YouTube’s lawyers  aren’t just trying to mislead anyone. They’re trying to mislead one of the most   experienced and respected  federal judges in America.
 Worse yet, YouTube is doing it to protect Russia. 
  If you’re wondering why, the answer will  become evident in the coming minutes.

Hint: it’s about the money. By the way — should YouTube try  to walk back its comments by   issuing a statement after this video is  published saying “oh, we had no idea,” or   “our attorneys had a misunderstanding,” you  should know that I provided YouTube’s legal   team with countless screenshots and recordings  showing how our videos are made: scene-by-scene.
 And I mean that *literally.* I sent YouTube a Google Drive folder with 28   screen recordings of our raw  Adobe After Effects files. These recordings show how each of the 28 scenes  that RT infringed are made: *layer-by-layer.

When YouTube made these false  statements to a federal judge,   YouTube knew very well that our videos  were not “mere public domain images.”
 I wish I could say that YouTube’s  lying stopped there, but it doesn’t.
 My friends, we’re just getting started.

For example, when YouTube was asked  for some context about RT by Judge   Ramos,
YouTube suggested that RT may not even  be funded by the Russian government at all. Can I ask you something about TV-Novosti?   I understand that it used to be,  or it is, a state-owned station.   So, I take it that it's a substantial business  and it's not some teenager with a TikTok channel? So, Business Casual alleges that they're  funded by the Russian government. I think there's some evidence of that. And I actually believe that there's a notice  on YouTube's website that says that 'RT   may be funded in whole or in  part by the Russian government.' I don't know whether that  happens to be true or not.

But yes — they are a massive content creator. They have 39 channels. RT Arabic  is just one of their 39 channels. Wait a second, Mr. Mollick.
 YouTube "isn’t sure" about its  own disclaimer which YouTube   prominently slaps onto all of  Russia’s state-owned channels? You know, the one that explicitly warns viewers  about RT’s funding from the Russian government?
 Reallllllly, Mr. Mollick?

But anyway, moving on.
 As mentioned earlier, RT’s Copyright  Producer, a woman named Karyaeva Albina,   sent me email after we took down RT  Arabic’s First Infringing Video.
 Karyaeva asked why RT received a strike.
 So, being the forward guy that I am,   I replied a few hours later and explained  exactly why I took down their video.

 Quote – 

“Karyaeva, the strike  placed on RT is, indeed, legitimate.  

Your video was a blatant  rip-off of my company’s video.

   If you disagree, feel free to sue and  we will happily you see in court.”
 To my surprise, Karayeva replied the next day.

 Quote — 

“Dear Alex, yes, you are right.  I am terribly sorry about the use of your  

material in our project. Due to an  oversight and misunderstanding here,   my colleagues used this fragment without  your permission. In this respect,   we are willing to make this right with you.  We are ready to pull our entire project from   circulation and remove your copyrighted  material if you retract the strike.”
 A few hours later, Karyaeva sent me  another unbelievably incriminating   email.

“Following-up on my previous email. I’d  

like to add that my colleagues filed  a counterclaim 
by mistake yesterday. So, please ignore it. Within 24 hours, Russia Today, to its credit,   did the right thing and retracted  their
 Side note: a counter-notification is basically a  short message that you send through your YouTube   dashboard where you explain your reasoning as to  why you are disputing the takedown of your video. More on this later.

As of the day of making this video, RT’s  counter-notification concerning its first   infringing video remains retracted. As it should.
 And just like that: RT has a copyright strike.
 For those of you who are not  content creators and may not   be familiar with YouTube’s copyright policies,   RT now has a very serious issue on its hands.
 And  that’s because YouTube’s policy explicitly states: 

Quote —

 “If a user gets 3 copyright  strikes in 90 days, their account,   *along with any associated  channels,* will be terminated.”
 After 3 strikes, YouTube provides  you with a 7-day courtesy period.
 Once the courtesy period is  over. it’s do svidaniya!

This is YouTube’s published policy.
 It is simple and straightforward:  three strikes — you’re out.
 Unfortunately for RT, they have THIRTY-NINE  channels, as confirmed by YouTube.
 Collectively, these 39 channels receive  over FIVE BILLION views every year;   
representing the cornerstone of the Kremlin’s  propaganda apparatus on the internet.

These channels are, without a doubt, the  backbone of Putin’s propaganda machine.
 And here’s where things get really interesting.
 Unlike other policies on YouTube’s website, like  its Terms of Service or Community Guidelines,   which are agreements governed under  the jurisdiction of California,   having and enforcing a repeat infringer  policy is a matter of federal statute.
 Under Title 17 Section 512, YouTube must “adopt  and reasonably implement” a policy that calls for   the termination, in “appropriate circumstances,”  of channels that are “repeat infringers.”
 If YouTube fails to quote-on-quote “reasonably  implement” its repeat infringer policy,   then YouTube can be held liable — specifically,  by forfeiting the DMCA’s safe harbor; which is   sort of like a liability force-field if you  will, protecting YouTube from lawsuits.

More about this at the end of the video.  But for now, let’s get back to Russia.
   As mentioned, RT now has one copyright strike.
 Not great, but not terrible. (*wink*) After all, if RT can avoid receiving two  additional copyright strikes within 89 days,
then   one of those strikes will fall off, and their  39 channels will be spared from termination.
 But, as would fate would have it,  RT has been stealing our videos for   years. 

A couple of weeks after taking-down RT’s first  infringing video, my team stumbled upon another   infringing video that RT posted. 
  This one infringed an entire scene, approximately  7 seconds, from our video about John D.   Rockefeller, which is also our most popular  video with over five million views.
 Shortly after discovering that video, we found  — you guessed it — yet another infringing   video. This one, a YouTube livestream, featuring  nearly 9 minutes of our J.P. Morgan documentary.

To make a long story short:   RT received 3 copyright strikes  from Business Casual within 52 days. At this point, the Kremlin  was beginning to realize   that they had a major problem on its hands.
 With the shutdown of RT’s 39  channels looming closer by the day,   the Russians were left with only one  option to save their propaganda machine:

   RT had to muster-up a completely meritless “fair  use” defense and file disputes, in bad faith,   concerning its two other copyright  strikes from Business Casual. As a reminder, the Russians already  retracted their counter-notification   concerning their first infringing video.
 Now, before going any further, it’s  important that you understand the   Fair Use legal doctrine and its role in the  DMCA’s takedown and counter-notification system.
 It may sound complicated,  but I promise you it’s not.

To help explain once more,  is the Russian president.
 Howdy comrade. As I talked about earlier, a  copyright provides you with a   temporary exclusive license  to your original creations.

But there is one notable exception to this  exclusiveness, and it is called: fair use. Basically, fair use is a legal  defense to copyright infringement.   It allows you to legally use another person's  copyrighted material, without permission. Now, in order for your use  of another person's copyright   material to be considered fair, hence the name  "fair use," a court will consider 4 factors.

Factor no. 1: the purpose and character  of your use of the copyrighted material. Put simply, did you transform the copyrighted  material? If so, how much? And how?   This is critically important. It's the  first thing that the judge will observe. For example, consider this picture of a peaceful  Ukrainian city before Russia's invasion.  

Say that you want to incorporate this  copyrighted material into your own artwork. A court will ask, did you add something  new? Or is the original photo still the   dominant work that is present in your version? The more that you transform it, the more likely  it is that your version will be considered fair. For example, let me show you what this peaceful  Ukrainian city now looks like after my "special   military operation." As you can see,  these two photos are now very different. This is a great example of a very  strong transformation defense.

Factor no. 2 — the nature  of the copyrighted material. In other words,   is the copyrighted material historical in  nature — or is it creative, like fiction? As a general rule, copyrighted works that are  factual receive less copyright protection.   Allow me to explain. Consider two movies: "The Hunt for Red October,"   a fictional American spy thriller about  a Soviet submarine. And "First Man,"   a historical film about the United States  being the first country to land on the moon.

First Man is a historical film. But it still  receives the same level of copyright protection   as a fictional movie, like  the Hunt for Red October. Why? Because both works are  creative and original works. Much in the same, Business Casual's videos  might be about history, but its copyright   protections extend to its beautiful 3-D visuals,  which boast very strong copyright protection. Factor No. 3 deals with the amount  of copyrighted material that you use.

The more of someone else's copyrighted  content that you appropriate,   the less likely it is to be considered fair use. Now, to be clear, that is not to say that  using "just a little bit" of copyrighted   content is okay. As YouTube's  Help Center correctly states: One of the biggest myths about Fair  Use is that there's a minimum amount   of time you're allowed to use  someone else's copyrighted work.

But despite what some people may  think, there is no duration which   you can use someone else's content that  is automatically protected under Fair Use. When it comes to using other people's copyrighted  material, remember this: "LESS IS BEST!" Factor No. 4: the effect  of your use on the market. If your use of the copyright holder's material  harms or usurps the market for the original work,   it is very likely that your use is not  fair. It's that's simple. So, in a nutshell,   those are the 4 Factors of Fair Use.

Remember them wisely comrade. Thanks Vlad. Okay, so let's say  that you make a YouTube video   and you use someone else's copyrighted content. Before you publish your video, you go through  the 4 Factors of Fair Use to diligently ensure   that your use of the other  person's material is fair. You are *not* a bad actor.

Your intent is not to infringe another  person's copyrights to enrich yourself. On the contrary, your genuine intent is to enrich   society with your unique ideas  and criticism of their work. By the way, this is the genius  of Fair Use. Without it,   it would be impossible for people like  YouTubers or newscasters to comment on   matters like breaking news out of fear  of committing copyright infringement. Because criticism is heavily protected  under the fair use legal doctrine,   you believe that your use is fair.

So, you go ahead and publish your video. The copyright holder, on the other hand,  watches your video and disagrees. They   think that you used too much of their  video and that your use is not fair. So, they file a copyright takedown  request with YouTube. In doing so,   the copyright holder signs a sworn statement,   under penalty of perjury, certifying that they  are filing their takedown request in good-faith.

A couple of days later, YouTube expeditiously  removes the content from your channel,   as required by law. Well, sort of. Technically,  YouTube doesn't *have* to do this but if it   does not do so expeditiously, it can  be sued. So, usually, YouTube complies. You then get an email saying that your video  was "removed for copyright infringement."   You also now have a copyright  strike on your channel. But you disagree. You believe that your use was,  in fact, fair, and that the takedown was wrong. So, you file a dispute, also known  as a [DMCA] counter-notification,   through your YouTube dashboard.

It's very easy. All you have to do is briefly type your reason  for why you believe that your use was fair,   and with just a couple of  clicks, you hit "submit." Just like the rights holder who filed the  takedown request, you also have to sign a sworn   statement — under penalty of perjury — certifying  that you are filing your dispute in good-faith. After filing your dispute, YouTube automatically  forwards your message to the copyright holder.   From here, the copyright holder now has 2 choices:  file a lawsuit against you, or do nothing. If the copyright holder does nothing, YouTube will  reinstate your content within 10 business days as   required by the DMCA. Lawsuits are pretty rare.  It's a real inconvenience, it's very expensive  

and according to YouTube's own Help Center:  it doesn't happen often. But if the copyright   holder does decide to sue you, they must provide  a copy of this lawsuit to youtube. And quickly.   Specifically, within the 10 business day period  after receiving your counter-notification.   This is the law. YouTube will not reinstate  your content if the rightsholder files a  

lawsuit against you within this 10 day window.  Now, here's the important part to understand   about this whole thing: until you are  held liable in court for copyright   infringement — which can take the rightsholder  years and millions of dollars to accomplish —  you do not have a strike on your channel.  Why? Well, because per YouTube's policy,   the burden of proof no longer lies with  you, but rather, with the rightsholder.   Now, in this example, neither party is being  malicious. The copyright holder genuinely believes   that you committed copyright In this case,  TV-Novosti has submitted counter-notifications, infringement and you genuinely believe   that you did not. Both parties  are acting in good-faith. But, unfortunately, that is not always  the case. Bad actors like RT are abusing  

the DMCA by filing laughably false DMCA  counter-notifications in obvious bad-faith   after receiving 3 copyright strikes. Why  are bad actors like RT doing this? Well,   because, as mentioned earlier, YouTube's  policy is "three strikes you're out." If the bad actor does not dispute  their status as a repeat infringer,   YouTube will terminate their account. Much more on this in the coming minutes. YouTube  would later argue in its motion to dismiss that   when RT filed its counter-notifications, RT's  copyright strikes were basically "reclassified"   from strikes to "allegations of infringement,"  therefore the repeat infringer is not actually   a repeat infringer, but rather,  an alleged repeat infringer. In a conference call with Judge Ramos, here's how YouTube's lawyer explained their position: In this case, TV-Novosti has  submitted counter-notifications, under penalty of perjury, disputing Business Casual's claims  that an infringement occured.

Now, I understand that with  respect to one of them, TV-Novosti withdrew one of the counter-notices, That's true. But that's only with respect  to one of their videos. For two other infringing videos, they submitted  counter-notifications and never withdrew them. And I suspect that the reason why your Honor,  is because, even if they copied content from   Business Casual's videos, the content is not  copyrightable to Business Casual to begin with.

Or, at least, RT has a very  strong copyright-ability defense. RT also very likely has a  very strong fair use defense. Which is something that   is being litigated in the related case. [...] We are not judge, jury, or executioner. And the DMCA does not require us  to be judge, jury, and executioner. That wouldn't be appropriate. In this case, we have one user who has submitted three takedown notices, with respect to just a few seconds worth of content.

And those takedown notices are being disputed. It is absolutely appropriate  in that circumstance to say: we don't know whose right, there are arguments on either side, go litigate your case, and then let us know how that turns out. YouTube is nothing more, at least with respect to TV-Novosti's videos, than an automated hosting platform. At first glance, this explanation for why YouTube   is not terminating RT’s channels  may sound perfectly appropriate.

But there’s only one problem. Almost everything that YouTube’s  counsel just said, 
is simply not true. At the end of this video,   I’ll talk more about YouTube’s false and  contradicting statements to the Court, but three things must be said here. First and foremost, what  YouTube lawyer Jason Mollick  conveniently forgot to mention, is that YouTube has actual knowledge of  the fact that RT’s Third Infringing Video   exploited the exact same 28 copyrighted  scenes as RT’s First Infringing video.

This is a very important detail  because, as you already know,   RT already retracted their counter-notification  concerning that admittedly infringing video.   RT has already conceded that that video was a  "blatant-ripoff" of Business Casual’s "copyrighted   material" and that the copyright strike  placed on that video was "indeed, legitimate." Now, you may be saying: "but Alex, hold up." 

If RT’s First Infringing Video used around  a minute-and-a-half of Business Casual’s   J.P. Morgan video, then how can RT’s Third  Infringing Video exploit those same 28 scenes? I thought you said it was 9 minutes?
 The answer is because RT’s Third Infringing Video  was a YouTube livestream, which looped 6 times. We have a 100-hour screen recording proving this.

YouTube has seen the recording.
 How do we know this?
 Because I sent the evidence to  YouTube — and YouTube replied.
 YouTube’s response constitutes actual knowledge.
 As you can see on-screen: RT’s two infringing  videos are pixel-for-pixel identical.
 Both exploit the exact same 28 copyrighted  scenes from our J.P. Morgan Documentary.

There is no genuine dispute about  this. Nor could there ever be. I mean,   you can literally see the videos  side-by-side: it is obvious.
 And yet, despite this fact, RT  still — to this day — refuses   to retract it’s counter-notification  concerning its Third Infringing Video.

 Well, apparently out of fear that doing so  would then classify it as a repeat infringer.
 So that’s the first thing.
 Secondly — YouTube’s counsel knows very well that  our videos are not just “copyrightable,” but in   fact protected by our copyright registrations  granted by the 
U.S. Copyright Office.
 As mentioned earlier, we didn’t  just provide YouTube with a detailed   description of how our videos are made  and mere copies of our registrations.

Rather, we sent YouTube 28  separate screen recordings. These recordings show the  deconstruction of each of   our 3-D parallax models in Adobe After Effects!
 You do not need to be an attorney, much  less a copyright attorney, to recognize   that Business Casual’s original scenes are  protected by copyright as a matter of law.
 If YouTube’s lawyers do not understand this,   then they either need new glasses or  they need to go back to law school.
 Thirdly — YouTube is also well-aware of the fact   that RT did not exploit “just  a few seconds” from our videos.

That is just a flat-out lie. At least two of RT’s infringing videos  exploited nearly a-minute-and-a-half of   our copyrighted material: that is a  far cry from “just a few seconds.”
 But putting that aside — even if  YouTube’s claim was true — that   RT “just used few seconds” of our video — it’s  still blatantly misleading because it takes a   tremendous amount of time to create those  “mere seconds” of copyrighted material.
 So, with those three things in  mind, let’s take a quick minute   to examine RT’s “very strong fair use  defense,” in the words of YouTube.

Russia argues that our case should  be dismissed for several reasons. “RT should be allowed to profit from Business  Casual’s videos because RT is a non-profit.’” Argument No. 1: RT should be allowed to profit  

from Business Casual's videos  because RT is a non-profit. Argument No. 2: Business Casual's  copyrighted material was not the   "dominant thing" shown on-screen. Argument No. 3: RT's "allegedly"  infringing videos are critical of J.P.   Morgan and Rockefeller, whereas Business  Casual's videos praise their subjects;   and thus RT's use is somehow "transformative"  because it serves a different purpose. Argument No. 4: Business Casual's visuals  are merely "public domain images."

Argument No. 5: Business Casual's videos  are historical in nature, and thus,   worthy of less copyright protection. Argument No. 6: RT is a news agency and therefore  it's entitled to monetize Business Casual's  

copyrighted material without permission from  Business Casual or credit to Business Casual. Argument No. 7: RT "only used"  Business Casual's copyrighted visuals,   and nothing else from Business Casual's  videos, like it's audio, script, etc.

With all the rubles in the world,   this was apparently the best  defense that RT could come up with. Pathetic. I can make a whole separate video about RT and  its "fair use" defense, but in the context of   exposing YouTube, I think it's worth taking  just a minute here to address RT's arguments. First, being a “non-profit”  does not give you the right to   profit from another person’s  copyrighted material.

Second, I’m not sure how RT can  claim that our visuals are not the   dominant thing shown on-screen, when, in fact,  our copyrighted visuals are the only thing   shown on-screen. 
You know, minus our watermark.
 Third, our videos do not “praise” their subjects  — not that it would make any difference.   
By watching our videos on YouTube, you can  see that we actually describe Rockefeller as   a blood-thirsty monopolist who strangled his  competitors and Morgan as a war-profiteer,   like the time when he exploited the Union  Army when it was desperate for rifles.
 Fourth, and I promise this is the last time that  I’ll say this: our visuals are not public domain   images! But don’t take my word on this: just  ask RT’s own Copyright Producer who admitted,   in writing, that our documentary is, in fact,  our copyrighted material.
Her words, not mine.
 Fifth, the fact that our documentaries relate  to history is completely irrelevant. Our  

copyright registrations protect our 3-D  visuals, specifically the end-product;   not any process or trade secret involved in  making this content, as RT also claims. Our   3-D visuals are undoubtedly original creative  works; and they are protected as such.
 Sixth, even if RT is a “news” agency, and  that is quite the stretch, its argument   is still futile because the infringing  content in question is not actually news.
 RT’s infringing videos discuss the  lives of J.P. Morgan and Rockefeller:   both of whom died over a century ago.

That’s not news. That’s history! Per RT’s logic, every copyright pirate  should just register as a news agency   to protect itself from copyright claims. But, of course, that’s not how the law works.
 Seven, and this is my favorite argument, RT claims  that their use of our copyrighted material is fair   because they didn’t steal anything else from our  video, like our script, our narration, and so on.

But, of course, RT’s listing of all the  copyrighted assets that they didn’t blatantly   rip-off from our video is just an attempt  to distract from the copyrighted material   they’ve already admitted to blatantly  ripping-off.

It’s almost like saying: 

“Your Honor, while it’s true my client  robbed the bank’s vault, you should know   that my client did not rob the bank’s tellers or  the bank’s manager on the way to his getaway car.” 

Seriously, that’s basically  what they’re saying.

And,   by the way, the most hilarious part about their  argument here is that... it’s not even true!

If you look at RT’s script — an  English translation of which they   provided to the Court — you can  see that RT did steal our script. Or, at least, part of it.   There are several parts of their video which  use almost verbatim quotes from our video.

But yes, those are RT’s arguments  in a nut-shell: meritless.
 They’re so meritless, in fact, that YouTube’s  statement about RT likely having a quote-on-quote   “very strong fair use defense” goes from being  clearly wrong to, dare I say, 
highly suspicious.
 Like, for one thing: why is YouTube  supporting RT’s fair use defense?
 YouTube is not even named as a  defendant in that separate lawsuit.
 Think about it.
 If YouTube wants to win its  case against Business Casual,   this is not an argument  that YouTube needs to make.

I thought YouTube was “just an  automated hosting platform”?  
 Didn’t we just hear   YouTube say that it would be inappropriate for  YouTube to be the “judge, jury, and executioner”?
 If that’s the case, then why is  YouTube telling a federal judge   their legal opinion about RT’s  “very strong fair use defense”?
 What happened to YouTube not being able  to decide what is fair and what is not?
 When YouTube’s lawyer said this to Judge Ramos,   he was certainly not asked for his legal  opinion on the merits of RT’s defense.
 You can read the transcript for  yourself at Google Moscow dot com.
 So, why is YouTube echoing RT’s fair use defense?
 Could it be because YouTube doesn’t want  Business Casual to win its case against RT?
 I believe the answer is yes.
 Well, we don’t have to speculate.
 The Kremlin has publicly threatened countless  times to ban YouTube and Google throughout Russia   if YouTube terminates RT’s channels. 
Now, I am sure that some of  you may be asking yourselves: “Well, Alex, why would Russia even try  to fight this case? I mean, obviously,   their use of Business Casual’s content  was not fair. So, why even fight?”

And I think the answer to that question is  that winning this lawsuit was never RT’s goal. RT’s only goal is to delay their termination.
 And, in that, respect, they’ve been successful.

The Kremlin is simply trying to preserve its  YouTube propaganda machine for as long as it can,   which means doing everything within its power to  delay being classified as a repeat infringer.
 Every day that RT skirts termination is another  day that it can continue to undermine the United   States. 
  And that’s actually a perfect segue to explain... Why The DMCA Fails Rightsholders  In Cases Like This.
 America’s takedown and counter-notification  system is by no means perfect, clearly.

If it were, I wouldn’t have  had to make this video.  
 But, by-and-large, it’s a fairly decent system.
 I think it works well for resolving the  vast majority copyright disputes between   *domestic* parties — many of which  are genuine disputes over fair use.
 Unfortunately, the DMCA complexly  fails rightsholders in the 0.01%   of extraordinary cases, like it does here.
 And that’s because, as mentioned  at the beginning of this video,   the pirate in this lawsuit  is not your average pirate.

As a reminder: we’re talking about a YouTube  channel that is owned-and-controlled by an   authoritarian regime that poisons its political  dissidents and is actively committing war crimes.
 The Kremlin does not care about the legal  consequences of filing completely bogus   
counter-notifications, in obvious  bad-faith, under penalty of perjury.
 You have to keep in mind: RT submitted its  counter-notifications *in Russian* ... from   Moscow … the U.S. don’t eve

2022-08-21 19:46

Show Video

Other news