Thread by @cfiesler

Update on the bonkers omegaverse copyright lawsuit- a bogus DMCA claim for @thelindsayellis's video about bogus DMCA claims. AMAZING EXAMPLE of a complete misunderstanding of fair use. Let's talk about bad faith takedowns & what fair use protects! [Thread]

To briefly summarize the topic of Lindsay's original video:
Author sends DMCA takedowns for another author's books based on a claim of copyright infringement for worldbuilding concepts that originally came out of fanfiction. Gets more bonkers from there.

Following Lindsay's video, she immediately heard from Author's lawyer, with claims of copyright infringement and defamation. re: copyright infringement, the video includes about 400 words of Author's book. (Heavily bleeped since, you know... it's werewolf erotica.)

Author also initiated DMCA takedowns to Patreon & YouTube. And Lindsay got a copy of the letter that made an argument for why the video is not fair use. It is BANANAS. Copyright law profs, I give you this a gift. Put this on an exam and make students tell you why it's wrong:

(1) "My book is not public domain."
This is correct. And totally irrelevant! If it WAS public domain, it wouldn't be protected by copyright at all, and therefore fair use wouldn't be necessary. Lindsay could have read the whole book instead of just 400 words.

(2) "It is a creative work, not a text book."
Also true, also irrelevant. No idea what point this is making. To be clear, textbooks are also protected under copyright. Fiction does weigh heavier against fair use than nonfiction but we all know factor 2 usually doesn't matter.

(3) "The poster reads my book to degrade my work."
OK sure, and if not completely irrelevant, it might even weigh in favor of fair use. The purpose of fair use is to serve as a "safety valve" between free speech and copyright. So critique weighs strongly in favor of fair use.

(4) "The poster significantly transformed my original work, both by altering the work and by mocking it."
... um.
Are you making the fair use argument FOR her?
"Transformativeness" is LITERALLY the most important part of a fair use analysis. And "mocking" = criticism = +fair use.

(5) "Monetizing the video does not make this fair use."
Right. Also doesn't make it NOT fair use. Shall I cite examples of commercial content that was found to be fair use in court? Including the supreme court case that established transformativeness? en.wikipedia.org/wiki/Campbell_….

There's then something about a baby that I don't understand and seems to be irrelevant to copyright.

And later in the video, she points to one star reviews of her book after the video as being relevant to a fair use analysis, seemingly making a market harm argument.

"Market harm" for fair use does not mean "someone critiqued my work and therefore people won't buy it." It means (in part) "someone might buy this new thing instead of buying the original work." Again, the video quotes 400 WORDS of an entire book.

In my opinion, Lindsay's video is a pretty clear cut case of fair use re: transformativeness, critique, amount used. Commerciality could indeed weigh against it, but I think the rest outweighs pretty clearly.

But regardless, the argument the author makes is BANANAS.

If you've watched the whole video you saw a part about a supposed fanfiction lawyer deepstate conspiracy between EFF and OTW.

I'm on the legal committee of OTW. Can confirm we had nothing to do with this. ¯\_(ツ)_/¯

I mean personally I'd love to be BFFs with Lindsay. But nope.

Also am writing a paper about algorithms and DMCA takedowns and power imbalances...
YouTube preemptively did their own fair use analysis and denied the claim. What?! I mean, it was the right call but there are so many bogus DMCA takedowns that creators are too scared to fight. :(

I am tempted to make a YouTube video based on this thread in the HOPE that it gets DMCAed. That would make my life.

Creating content intentionally for fair use examples is one of my favorite pastimes. caseyfiesler.com/2014/11/18/bar…

For real though: The next thing on my filming schedule was literally "why fanfiction isn't copyright infringement" so maybe I'll do "the worst fair use take in history" first instead.

Also, because some folks have asked: I am absolutely not going to comment on the defamation claims because I don't know enough about defamation and actual law-trained people know enough to know what they don't know, unlike all the other non-law-trained legal experts on twitter.

What I can say, though, is that defamation is irrelevant to copyright. Again, if copyrighted content is used to *critique* that actually weighs in favor of fair use.

Imagine if you could use copyright to shut down all criticism. This is what fair use is designed to prevent.

I can't believe I got through this entire thread and didn't mention...
Literally my first first-author paper from my PhD (w/ @asbruckman) was about how people get fair use wrong online. But none of our participants were THIS wrong. :)
cmci.colorado.edu/~cafi5706/cscw…