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.