On August 19th of 2019, YouTube filed suit against Chris Brady alleging violation of the DMCA and abuse of YouTube’s reporting system. The suit comes after much complaint from the YouTube community regarding the company’s often inaccurate application of copyright complaints.
YouTube has a problem. Everyday, thousands of videos are uploaded to the platform, many of which contain copyrighted content. Of those copyright laden videos, most will be using the content in accordance with fair use, but many more may not. The problem YouTube faces is how to police the copyrighted content without removing videos that should be allowed. To separate allowed videos from infringing ones, YouTube relies on the copyright holder to report infringements. There is only one small issue; what if the reporter is a liar? It is not uncommon for copyright holders, or even random people, to abuse the reporting system. Chris Brady was one of those random people who took advantage of YouTube’s system and used it as an extortion engine.
WHAT DID CHRIS DO?
Chris Brady used YouTube’s three strike system and the threat of an permanent ban to extort money from smaller content creators. Brady submitted “at least two dozen” false notices to YouTube that claimed certain creators had infringed on his “copyright(s).” He then messaged said creators, and threatened to submit a third strike (which would result in a ban from the platform) unless the creators sent him $150-$300 on PayPal. YouTube failed to do anything about the extortion until the creators made videos decrying the lack of action and requesting help. Only then did YouTube open an investigation, which found the abuse and resulted in the lawsuit.
YouTube filed suit against Brady claiming that Brady intentionally misrepresented that the content was infringing and is therefore liable for damages, as stated in Section 512(f) of the DMCA. YouTube is seeking compensation for the damages Brady caused, in addition to barring Brady from submitting notices of infringement to YouTube going forward.
WHAT DO I THINK?
YouTube is doing the right thing here, both for themselves and for the YouTube community. By making an example of a copyright extortionist, YouTube will dissuade many others from continuing the unfortunately common practice of abusing the reporting system. We will just have to wait to see how the case pans out.
Christopher Brady, aka ‘Vengeful Flame’, has been caught trying to extort money from different YouTubers using the site’s “three strikes” policy. Accounts that get three unresolved copyright complaints cause the account to be terminated. The worst part is that for most cases, the accounts get terminated without any investigation for the truth or trial.
Chris was abusing the policy by placing two bogus strikes upon his victim’s accounts and then contacting and extorting money from them. They are told to pay X amount of dollars or bitcoin in a short amount of time or else they will receive the third strike. Two known victims of his scamming are known as Obbyraids, Kenzo and Cxlvxn. They took to social media following the attack, complaining about the scamming.
In a third incident, Brady contacted a YouTuber by the name of Cxlvxn, who proceeded to file a DMCA counter-notification. Six days after the counter-notification was filed, Cxlvxn was ‘swatted’. YouTube believes that Brady was responsible for the ‘attack’
After gaining attention, YouTube itself filed a complaint to the federal court against Christopher Brady. YouTube has traced back to him at least 15 different online identities. They are suing Brady using the DMCA’s provisions against fraudulent take-down claims.
In February of 2007, Stephanie Lenz posted a video to YouTube of her thirteen month son dancing around in their kitchen. This twenty-nine second video included audio of Prince’s “Let’s go Crazy”.
The background music in this video prompted Universal to file a DMCA takedown notice to YouTube in June of the same year, causing the video to be taken down from YouTube. Lenz rebutted by claiming fair use of the song, and YouTube thereafter restored the video.
Following this incident, Lenz filed a lawsuit on the grounds that her use of the song was non-infringing, and claimed that the notices were in bad faith. Prince intended to take back total control of his music on the internet, which was looked at by the District Court as being a clean sweep of all his music as opposed to practicing fair use and reviewing each case individually. The Supreme Court denied both requests from each party to hear the case.
In the End
The case resulted in a settlement, but this case did a lot for fair use of the DMCA. Universal tried to claimed that fair use should not be considered, and it is to the owner’s discretion to decide where they do and do not want their content to be used. This was ruled against, and hence fair use is likely to be taken into consideration in future cases.
On August 27th 2019, 17 record labels filed a lawsuit against New Jersey ISP RCN. The labels claimed RCN made “substantial profits” by allowing their customers to violate copyright law.
The initial discovery of the violations was made by Rightscorp Inc, a copyright enforcement agency. Working on behalf of multiple record labels, they found “massive infringement of sound recordings” by RCN customers. Rightscorp then notified the labels, who in turn sent “more than five million notices” to RCN.
The lawsuit alleges that RCN willfully ignored these notices, allowing their customers to pirate sound recordings without repercussions. By neglecting to enforce copyright law, RCN gained customers attracted to the freedom offered. This is in violation of the Safe Harbor Provision, which would have immunized them from lawsuits of this type.
Most ISPs are protected by the Safe Harbor Provision, which allows online service providers to serve copyrighted content so long as controls are in place to prevent the illegal distribution of said content. However, the lawsuit states that RCN did not have the proper controls and therefore forfeited their Safe Harbor rights.
The forfeiture of Safe Harbor protections allow the labels to sue RCN for allowing the distribution of copyrighted sound recordings. The record labels are seeking $150,000 in statutory damages per infringed work.
In December of last year, Automattic, the company that runs WordPress, was awarded over $25,000 in damages against Nick Steiner, a member of the group Straight Pride UK. Normally in cases that involve the DMCA, liability for damages is a given, and the one who initiated the suit is normally the one to be awarded the money. However, what makes this case unique is the substantial of money awarded and the fact that it was awarded to the defendant.
In this case in question, a blogger requested information from Steiner, and included parts from the press release given to him in a negative report about the group. Steiner retaliated with a DMCA claim against WordPress, and Automattic responded by filing suit. They won the case and with the new precedent that they set, sent a message to others who may abuse DMCA claims. Alongside that, small businesses who may be victims to claims such as these may have found an ally in WordPress, who plans to battle DMCA abuses. With such a big player retaliating and winning, fraudsters may now have to seriously consider the risks of making fraudulent claims, and if they’re willing to take the risks of making such a claim.
Now, DMCA claims aren’t anything new and there’s plenty of claims that have merit in existing. However, in recent years, the number of DMCA claims has gone up dramatically, and according to Google’s transparency report, a large number of those claims are baseless or used for malicious purposes. According to Google, about ⅓ or 37% of the claims made were not valid claims, and 57% of claims were made by businesses against their competitors. DMCA claims are easy to abuse, with little risk for the accuser and large rewards. In a system that doles out punishment without any real due process, lots of abuse is going to occur.