Youtuber Claims Takedown of his Video is an Act of Fraud

[Steve7]

What is the name of your state (only U.S. law)? California

Hi,
Is there any legal recourse, steps I can take legally to have YouTube remove this guy's video that has a title with my full name and says I committed fraud? Or is there another course of legal I action I should consider?

Here's some background:
I uploaded a short video on YouTube that has info I share from a group of healers that offers suggestions and approaches for living a meaningful enjoyable life. It's information that's been around for years but it hasn't been mainstream in the western world. Many people have responded favorably to it. One exception however is a guy that has combined segments of my video with video from other YouTube channels that have a similar theme to mine. The guy also adds images of people being surgically operated on and images of bodies missing arms or legs to our video segments to complete his video in which he implies those people are getting surgical mind control implants or have had body limbs removed because they followed the info in our videos. He attempts to debunk and devalue the message in our videos and writes in his video's description and comments that people must attack and destroy not me but the group behind the alternative messages that I share in my video. He claims the world is in danger of being taken over by this group of healers that he claims will make us all their slaves.

In the past, this guy has altered videos made by other people. They asked him to remove the videos and he did, but he replaced the videos with scolding words about fair use being violated and he added links from the old videos to video copies still posted on his Vimeo channel. I decided to submit a notice to YouTube rather than ask him to remove the video that had me being portrayed in it as part of a group trying to take over the world. YouTube removed this guy's video within four days and gave him a copyright strike.

He has now uploaded a new YouTube video. The title of this video has my full name in it and the title says I have committed fraud. The video itself is a one minute long image of text that suggests my submitting a copyright notice to YouTube violates "fair use," and he writes the text in a way to imply that I am a "CRIMINAL!" He uses all caps for the word, criminal.

He is using my likeness, actual video of me talking, without my permission and it is my perception and that of others who have encountered this guy that he is trying to debunk and devalue our messages. Thus it seems to me that his use of my video is not a "fair use."

The description of his new video says that I'm a good guy that has fallen into their hands and had my mind taken over by this group of healers and that I am now just a mouthpiece for them. He says this group did a "mind scan" on him to calculate if my submitting a YouTube copyright notice would succeed or not. He says the scan showed them a 54% possibility that the notice would succeed so they "commanded me to execute the YouTube strike" against him. In his description, he asks viewers to put pressure on me to coerce me into having YouTube re-instate his video. And so far one person did send me a nasty comment commanding me to do just that.

I may be able to submit some kind of complaint to YouTube about his new video that has my full name in the title. I don't know what type of complaint to call it though? Is it Defamation? A growing percentage of my work and income is derived from my public speaking engagements and books that are related to the information in my video that he is, in his words, "attacking."

Is there any legal recourse, steps I can take legally to have YouTube remove this guy's video that has a title with my full name and says I committed fraud? Or is there another course of legal I action I should consider?

 

[quincy]

What is the name of your state (only U.S. law)? California

Hi,
Is there any legal recourse, steps I can take legally to have YouTube remove this guy's video that has a title with my full name and says I committed fraud? Or is there another course of legal I action I should consider?

Here is a link to information from Google on removing defamatory content from YouTube: https://support.google.com/youtube/answer/6154230?hl=en

You can flag any video that has objectionable content. YouTube does not have to remove it upon demand, however, as they are offered protection from civil actions under the Communications Decency Act, Section 230. Defamation is tricky in that not all objectionable content is actually defamatory content. It often takes a court to determine the material is defamatory and a court order to get the defamatory material removed from its place online. That said, YouTube could potentially remove the video on your notice to them, so it is worth a try.

For copyright infringement, on the other hand, in order to take advantage of the "safe harbor" offered YouTube under the Digital Millennium Copyright Act, YouTube must remove copyright-infringed material upon receipt of a DMCA takedown notice.

He has now uploaded a new YouTube video. The title of this video has my full name in it and the title says I have committed fraud. The video itself is a one minute long image of text that suggests my submitting a copyright notice to YouTube violates "fair use," and he writes the text in a way to imply that I am a "CRIMINAL!" He uses all caps for the word, criminal.

He is using my likeness, actual video of me talking, without my permission and it is my perception and that of others who have encountered this guy that he is trying to debunk and devalue our messages. Thus it seems to me that his use of my video is not a "fair use."

Without seeing the video in question, it is impossible for me to judge whether the video could be seen as a fair comment on your own videos or perhaps a parody of your videos - both of which could fall under the "fair use" umbrella. From your description of the video, it seems unlikely that fair use would work as an affirmative defense to its creation and publication - but, again, it is hard to say without seeing the video and knowing all facts behind its creation.

Is there any legal recourse, steps I can take legally to have YouTube remove this guy's video that has a title with my full name and says I committed fraud? Or is there another course of legal I action I should consider?

I recommend you have the video personally reviewed by an attorney in your area. It is possible that you have a supportable defamation claim, and possibly a misappropriation of a name or likeness claim, and possibly a copyright infringement action. Pursuing a legal action against this fellow stands to be costly and time consuming and not easy, so you will have to weigh carefully the pros and cons of a lawsuit. The attorney you see can go over these pros and cons with you, after the personal review.

Good luck.

 

[single317dad]

I believe quincy has covered most of the bases in his thorough response, but I'll add one short comment:

Youtube has available multiple usage licenses, one of which you selected when you uploaded your original video. Depending which license you selected, the other user may not have needed any permission to use all or part of your video. You should review the terms of the original license you chose, possibly with an IP attorney.

 

[quincy]

... Youtube has available multiple usage licenses, one of which you selected when you uploaded your original video. Depending which license you selected, the other user may not have needed any permission to use all or part of your video. You should review the terms of the original license you chose, possibly with an IP attorney.

Using portions of another's video could potentially be a fair use of copyrighted material, with or without a YouTube license that grants others permission to use the video. A license could make a use non-infringing - but a license will not protect the user of a copyrighted work from a defamation and other claims.

It depends on how exactly Steve7's copyrighted video has been used in the new video (what commentary/text has been added).

But stating in a published video that a named individual has committed fraud will never be the smartest thing to do.

I agree that a personal review by an attorney is needed. It would be best if Steve7 could find an attorney who is comfortable with defamation law, copyright infringement and internet law. He may need to look at large law firms.

 

[Steve7]

Thank you !!!

 

[quincy]

You're welcome, Steve7.

And thank you for the thanks. Both single317dad and I appreciate them.

Good luck.

 

[Steve7]

Update

As noted in my first post of this thread, YouTube took down the video I filed a complaint about. Now YouTube has received a counter notification in response to the complaint I filed.

Here's what YouTube says:
"We're providing you with the counter notification and await evidence (in not more than 10 business days) that you've filed an action seeking a court order against the counter notifier to restrain the allegedly infringing activity. Such evidence should be submitted by replying to this email. If we don't receive notice from you, we may reinstate the material to YouTube. If you have already provided YouTube with evidence of a court action in response to a previous counter notification for this URL, there is no need for you to respond again."

The address of the person making the Counter-Notification is located in Germany.

This person swears, under penalty of perjury, that he has a good faith belief the material was removed due to a mistake or misidentification of the material to be removed or disabled. That person has consented to the jurisdiction of the Federal District Court for the district in which his address is located, or if his address is outside of the United States, (he is in Germany), the judicial district in which YouTube is located, and will accept service of process from the claimant.

I don't know the nature of the landscape I'd be walking into, so is filing an action seeking a court order really necessary?

In the North San Francisco Bay area of California, which type of Court would I go to for filing an action seeking a court order so I could send YouTube the evidence they need within 10 business days?

Would I need an attorney for this filing or would the Court allow me to fill out the necessary paperwork?

 

[quincy]

As noted in my first post of this thread, YouTube took down the video I filed a complaint about. Now YouTube has received a counter notification in response to the complaint I filed.

Here's what YouTube says:
"We're providing you with the counter notification and await evidence (in not more than 10 business days) that you've filed an action seeking a court order against the counter notifier to restrain the allegedly infringing activity. Such evidence should be submitted by replying to this email. If we don't receive notice from you, we may reinstate the material to YouTube. If you have already provided YouTube with evidence of a court action in response to a previous counter notification for this URL, there is no need for you to respond again."

The address of the person making the Counter-Notification is located in Germany.

This person swears, under penalty of perjury, that he has a good faith belief the material was removed due to a mistake or misidentification of the material to be removed or disabled. That person has consented to the jurisdiction of the Federal District Court for the district in which his address is located, or if his address is outside of the United States, (he is in Germany), the judicial district in which YouTube is located, and will accept service of process from the claimant.

I don't know the nature of the landscape I'd be walking into, so is filing an action seeking a court order really necessary?

In the North San Francisco Bay area of California, which type of Court would I go to for filing an action seeking a court order so I could send YouTube the evidence they need within 10 business days?

Would I need an attorney for this filing or would the Court allow me to fill out the necessary paperwork?

Because you have 14 days to respond to the counter-notice, I recommend you look for an attorney in your area now for a personal review of the videos and for assistance in addressing the notice. If you do not file suit against the fellow you believe is infringing on your video, YouTube can restore the video to its place online. If you have not registered your video's copyright, it would be smart to do so.

Here is a link to the DMCA, 17 USC Section 512: http://www.gpo.gov/fdsys/pkg/USCODE-2011-title17/pdf/USCODE-2011-title17-chap5-sec512.pdf

What this fellow in Germany appears to be doing is calling your bluff. He knows you will have to head to court for an injunction and to file suit in order to block his video. You now have to decide how much time and money you are willing to invest in pursuing a legal action against him.

Good luck, Steve7.

 

[Steve7]

Thank you quincy !!!

 

[quincy]

You're welcome, Steve7. Good luck.

 

[single317dad]

Other than the information this person provided to Youtube, do you have any other reason to suspect he is in Germany? Is there anything in his videos which appears to be recent self-shot footage from Europe? I wouldn't assume he's actually in Germany based wholly on the fact that he provided that address.

Whether or not he's actually in Germany doesn't really affect the steps you need to take now, but it will be critical information going forward.

 

[quincy]

Other than the information this person provided to Youtube, do you have any other reason to suspect he is in Germany? Is there anything in his videos which appears to be recent self-shot footage from Europe? I wouldn't assume he's actually in Germany based wholly on the fact that he provided that address.

Whether or not he's actually in Germany doesn't really affect the steps you need to take now, but it will be critical information going forward.

Right.

Although it is required that all notices and counter-notices include the true legal name and true residential address and phone number and email address of the YouTube user, along with the YouTube account user name - and this will be verified to a certain extent by YouTube - it is always possible that someone has registered their YouTube account using false information.

That said, I would not be surprised if the YouTube user is from Germany. Many from overseas feel they are untouchable by US laws and, therefore, they believe they can infringe with impunity. And they often can. A US legal action filed against someone who resides in another country cannot only be extremely costly, a US court decision can have little effect on a person residing in a different country (it is hard or impossible to enforce). That said, an injunction issued by a US court can keep an infringing video from YouTube.

In order to have any real legal effect on an individual, though, any lawsuit will need to be filed against an individual in his own country under his own country's laws.