How Did a Conservative Colorado Preacher Get YouTube to Shut Down His Liberal Critics?

Former U.S. Navy Chaplin Gordon Klingenschmitt prays on the nineteenth and final day of his hunger strike in front of the White House January 7, 2006 in Washington, DC.
National Journal
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Dustin Volz
Dec. 12, 2013, midnight

Don’t like someone’s videos on You­Tube? A con­ser­vat­ive former Navy chap­lain and Col­or­ado state as­sembly can­did­ate has a nov­el solu­tion: Spam the site with take­down no­tices to trig­ger auto­mat­ic re­movals to shut down your en­emy’s chan­nel en­tirely.

Gor­don “Dr. Chaps” Klin­genschmitt has been wa­ging war for weeks on the lib­er­al group People for the Amer­ic­an Way, whose Right Wing Watch pro­ject works to high­light in­cen­di­ary com­ments made by con­ser­vat­ive firebrands such as Rush Limbaugh and Glenn Beck. The group has made a habit of tak­ing short clips from Klin­genschmitt’s own “Pray in Je­sus’ Name” show (also con­veni­ently hos­ted on You­Tube) and up­load­ing them un­ed­ited onto their own You­Tube chan­nel, al­beit with altered titles such as “Klin­genschmitt De­clares That ENDA Pro­motes Bes­ti­al­ity” or “Klin­genschmitt Says Wendy Dav­is Is Ruled By A ‘De­mon of Murder’.”

Klin­genschmitt was not amused. To counter RWW’s prac­tice, he began sub­mit­ting take­down no­tices to You­Tube un­der the jus­ti­fic­a­tion that the group was “steal­ing and pir­at­ing” his show, which he be­lieves is pro­tec­ted un­der the Di­git­al Mil­len­ni­um Copy­right Act.

His ef­forts so far are pay­ing off. RWW’s videos are get­ting taken down tem­por­ar­ily, and twice their en­tire chan­nel has been shut down — both times for at least 10 days.

“They don’t add any value to the con­tent,” Klin­genschmitt told Na­tion­al Journ­al. “They simply steal and copy and post with their own logo. They are not a le­git­im­ate news or­gan­iz­a­tion.”

The preach­er is adam­ant that Right Wing Watch’s ac­tions con­sti­tute “a clear vi­ol­a­tion of copy­right,” but his claim rests on shaky leg­al ground. There’s little ques­tion that RWW’s videos are pro­tec­ted un­der the fair-use doc­trine, said Dav­id Sun­shine, an in­tel­lec­tu­al prop­erty law­yer with the law firm Cozen O’Con­nor.

So if Right Wing Watch videos are pro­tec­ted, why is You­Tube tak­ing them down? In an ef­fort to com­ply with fed­er­al law, the site errs strongly on the side of cau­tion when a video is flagged for copy­right in­fringe­ment, and its pro­cess for restor­ing a video is slow even if the claim is base­less.

Un­der the “safe har­bor” pro­vi­sion of the DMCA, In­ter­net ser­vice pro­viders or con­tent plat­forms like You­Tube are prom­ised pro­tec­tion from li­ab­il­ity for any user-pos­ted con­tent that vi­ol­ates copy­right. But to dock in the safe har­bor, the party host­ing con­tent must not have know­ledge of the in­fringe­ment and must pos­sess a stand­ard pro­ced­ure for re­mov­ing con­tent that users mark for in­fringe­ment.

You­Tube‘s pro­ced­ure un­til last year gran­ted users little re­course when someone hit them with a copy­right-in­fringe­ment claim. But the site up­dated its policy to al­low users to sub­mit a counter-no­tice chal­len­ging the claim, which trig­gers a stat­utor­ily man­dated 10-day hold­ing peri­od dur­ing which You­Tube waits to see if the party cry­ing foul pur­sues leg­al ac­tion. Dur­ing that time, the video in ques­tion re­mains off­line.

Ad­di­tion­ally, You­Tube also has what some call a “three strikes” rule, which shuts down an en­tire ac­count if three in­fringe­ment claims are sub­mit­ted. Klin­genschmitt has ex­ploited this rule to get RWW’s chan­nel killed two times.

This might sound ex­tremely re­strict­ive, but it’s all done to com­ply with safe-har­bor rules, said Sun­shine.

“You can’t put the onus on You­Tube to make the de­term­in­a­tion on all the fair-use cases,” he ad­ded. “If they don’t take con­tent down, they risk los­ing their safe har­bor.”

But ad­vocacy groups think more can be done to pro­tect user con­tent from sab­ot­age. The spat has drawn at­ten­tion from the Elec­tron­ic Fron­ti­er Found­a­tion, an In­ter­net-free­dom group now work­ing with RWW to pro­tect the videos from be­ing taken down. The group sent Klin­genschmitt an un­usu­ally hu­mor­ous cease-and-de­sist let­ter last week out­lining why the videos con­sti­tute fair use and warn­ing that mis­use of pro­ced­ures to “shut down law­ful speech can res­ult in li­ab­il­ity for any dam­ages.”

Corynne Mc­Sh­erry, EFF’s in­tel­lec­tu­al prop­erty dir­ect­or, said ser­vice pro­viders like You­Tube should be “more flex­ible in terms of what they do for their re­peat-of­fend­er policy.” Rather than keep­ing a video or ac­count shut down when a counter-no­tice is filed, You­Tube should in­stead leave the video up while wait­ing to see wheth­er or not either party pur­sues leg­al ac­tion, Mc­Sh­erry said.

Klin­genschmitt, who is run­ning for state as­sembly in 2014 as a Re­pub­lic­an, re­mains un­deterred, though he has in­dic­ated he is un­likely to go for­ward with a law­suit. His crit­ics say this is be­cause he knows his war on Right Wing Watch is base­less. Klin­genschmitt coun­ters that pun­ish­ing the lib­er­al ad­vocacy group is not his goal.

“My law­yers be­lieve they are vul­ner­able,” he said. “They said I should sue them, but I don’t want to do that right now be­cause I don’t want to hurt them. My goal is only to de­fend my con­tent.”

That, and warn us about how Sen. Al Franken., D-Minn., wants to “ho­mo­sexu­al­ize” our pub­lic schools.

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