alex edson – Techdirt (original) (raw)

from the nyet,-comrade dept

Last year, we wrote about the really bizarre case of a website called “Business Casual” that filed a couple of copyright infringement lawsuits. One was against TV-Novosti, the Russian state-owned news organization that runs RT (formerly Russia Today). While there was a brief period of time in which RT pretended that it wanted to be a respected global news brand a la the BBC, it didn’t take long before it became a propaganda arm for Vladimir Putin.

Business Casual claimed that RT’s Arabic channel had pulled some clips from some of Business Casual’s videos that were potentially infringing. The case had a bunch of twists, including that many of the images were based on public domain images, but which Business Casual had modified using what it refers to as its “parallax” technology to take static images and give them a 3D feel. Whether or not there was a fair use argument (or a lack of copyright on the images argument) to be made didn’t much matter, because after initially responding to the lawsuit, TV-Novosti eventually just decided to ignore the case, leading to a default judgment.

After the default judgment there was another bit of a twist in the case, in which a Moscow-based executive from TV-Novosti sent a letter to the court asking the court to appoint an attorney to represent TV-Novosti, noting that because of various EU and US sanctions against Russia due to the Ukraine invasion, no banks will work with TV-Novosti, and thus it cannot figure out how to pay a US lawyer to represent it in court. The company says it needs a lawyer because it knows that corporations cannot appear pro se, and thus asks the court to appoint one for it.

The court’s response was that TV-Novosti is correct that it cannot represent itself in court, and notes that the letter requesting an appointed counsel was… the company representing itself in court, and therefore even that request for counsel got stricken from the docket, since there was no authority to file it. The court did suggest that TV-Novosti could reach out to the NY Legal Assistance Group to see if it would provide counsel, but no lawyer ever showed up, and thus the default judgment stood and the case was closed.

No matter how strong the argument may have been in that case, the second case that Business Casual filed was just dumb. It also sued YouTube, basically arguing that in allowing RT Arabic to infringe on Business Casual’s copyright (already potentially questionable), YouTube was itself infringing on Business Casual’s copyright.

And, again, things got weird in the case. Business Casual’s lawyer kept filing for extensions, claiming that the owner/operator of Business Casual, Alex Edson, was dealing with “severe” health problems and was “in agonizing pain and cannot function.” Yet, just as Business Casual’s lawyer was saying that to the court, Edson was in the process of releasing a nearly two hour long overly dramatic video (complete with a Putin impersonator explaining copyright law badly) about how YouTube’s lawyers were liars and the failure to take down the RT-Arabic account was because YouTube was an anti-American company.

Anyway, the court tossed out the lawsuit against YouTube, noting that nothing YouTube did violated copyright law.

Business Casual appealed, and now the 2nd Circuit Appeals Court has upheld the lower court ruling with a summary order (basically “this is such a waste of our time, we’re not even going to write a real opinion”) that is just a few pages saying “everything about this case is stupid, the lower court got it right, why are you bothering us?”

It affirms the lack of contributory or vicarious copyright infringement by YouTube, which is standard fare. Indeed, the order notes that Business Casual’s own filings seem to admit the basic facts that show that YouTube was neither contributorily or vicariously liable:

Rather, the amended complaint states that TV-Novosti took active steps to conceal its infringement by removing Business Casual’s watermark from the images in question, replacing it with its own watermark, and removing the color from Business Casual’s videos. According to the amended complaint, these steps by TV-Novosti allowed it to “evade detection from YouTube’s copyright-detection technology.” App’x at 299. Moreover, the amended complaint established that YouTube promptly removed the three videos at issue from its platform once it became aware of the alleged infringement, and these videos remain unavailable.

Business Casual’s own allegations reveal that YouTube did not materially contribute to, but rather acted to remedy, TV-Novosti’s infringement. Apparently recognizing that these allegations undermine a plausible claim, Business Casual concedes in its brief that its claims “do not arise from a failure by YouTube to detect, prevent, or acknowledge the infringement” by TVNovosti and are, thus, “[u]nlike typical cases involving secondary infringement.”

So having admitted in its own pleadings that YouTube couldn’t actually be liable for copyright infringement, the entire case hinged on the idea that YouTube was liable for not banning the RT-Arabic YouTube account under its repeat infringer policies.

But, this is… not how the DMCA works. As the district court initially explained (and which Business Casual’s lawyer seemed not to understand), the DMCA’s requirement for a repeat infringer policy is just part of the requirements for being eligible for the DMCA’s safe harbors, and does not create its own cause of action. But, Business Casual appealed that decision, and the 2nd Circuit points out that, no, the lower court was exactly correct:

Business Casual devotes much of its brief to arguing that YouTube’s failure to terminate TV-Novosti’s channels after it received three notices of infringing conduct is inconsistent with YouTube’s Repeat Infringer Policy. Business Casual argues that YouTube’s inconsistent practices should “result in the withdrawal of safe harbor protection” under the DMCA. Appellant’s Br. at 18. However, we agree with the district court that Business Casual’s attempt to assert an independent claim against YouTube based on its alleged failure to consistently apply its Repeat Infringer Policy is entirely misplaced.

The DMCA safe harbor provision that Business Casual relies on is an affirmative defense that a defendant may assert when a plaintiff sufficiently alleges a viable claim of prima facie copyright infringement. See 17 U.S.C. § 512(l) (“The failure of a service provider’s conduct to qualify for limitation of liability under this section shall not bear adversely upon the consideration of a defense by the service provider that the service provider’s conduct is not infringing under this title or any other defense.”); see also Capitol Recs., LLC v. Vimeo, LLC, 826 F.3d 78, 94 (2d Cir. 2016) (“[T]he safe harbor is properly seen as an affirmative defense, and therefore must be raised by the defendant.”); CoStar Grp., Inc. v. LoopNet, Inc., 373 F.3d 544, 555 (4th Cir. 2004) (“[T]he DMCA is irrelevant to determining what constitutes a prima facie case of copyright infringement.”). In other words, there is no affirmative cause of action for any alleged failure by YouTube to apply its Repeat Infringer Policy in accordance with the DMCA’s safe harbor provisions. As discussed above, Business Casual has not sufficiently alleged a plausible claim for contributory or vicarious copyright infringement. Thus, the district court properly determined that it need not reach the applicability of the “safe harbor” affirmative defense under the DMCA.

And thus, YouTube’s win over Business Casual is affirmed. I await the two hour YouTube video from Business Casual (perhaps they can bring back the Putin impersonator) mis-explaining the DMCA, and claiming that the panel of judges on the 2nd Circuit are anti-American.

Filed Under: alex edson, copyright, dmca, repeat infringer policy, ron coleman
Companies: business casual, google, rt, russia today, tv-novosti, youtube

Guy Who Sued YouTube Because Someone Else Copied A Bit Of His YouTube Video Loses (Again)

from the not-how-any-of-this-works dept

You may recall that, back in August, we wrote about the bizarre situation of a company called “Business Casual” and its CEO, Alex Edson. Business Casual makes highly produced videos. It made a few on historical topics, including taking some public domain images and modifying them significantly to make “paralax images” that added a sort of 3D feel. Edson/Business Casual claim (credibly!) that RT Arabic, the Arabic language wing of Russia Today, owned by TV-Novosti, copied parts of some of their videos. There were some DMCA claims he filed and then a lawsuit against TV-Novosti.

All that is… perfectly reasonable?

But then, for unclear reasons, Edson decided to sue YouTube/Google as well, claiming direct infringement among other things. That lawsuit did not go well. Not well at all.

It got much more bizarre over the summer, because Edson’s lawyer, Ron Coleman (who these days seems to specialize in fighting ridiculously bad culture war lawsuits which have no chance of success) kept filing for delays on filing for permission to file an amended complaint, saying that Edson was dealing with debilitating health problems. But… the very day that he filed the third such “Edson’s ill, we need more time,” motion (directly stating that Edson “_is in agonizing pain and cannot function at this time_“), a very healthy looking Edson was releasing a two hour long video on YouTube (complete with a very bad Putin impersonator) explaining — poorly — some details of copyright law, and claiming that YouTube is an “anti-American” company. He also claims, in truly dramatic fashion, that YouTube’s lawyers are “pathological liars” among other things.

While YouTube’s lawyers alerted the judge to this video, the judge ignored it and still granted the extension. Coleman eventually got around to submitting the actual filing. And, right before Thanksgiving the judge ruled on it — again highlighting how truly bad the legal arguments being made are.

First, Edson/Business Casual argue that YouTube failed to apply its “repeat infringer” policy to TV-Novosti by not suspending the account (or rather, suspending it only briefly). But, as the judge notes, the DMCA’s repeat infringer policy requirement (DMCA 512(i)), are only about whether or not a website is eligible for the DMCA’s safe harbors. It’s not its very own cause of action. But Coleman seems to think it is. The judge disabuses him of this:

Plainly, the plaintiff here is attempting to assert an independent claim against YouTube for its alleged failure to discontinue TV-Novosti’s account in accordance with its Repeat Infringer Policy. Lest there be any doubt on this point, the plaintiff asserts in its motion papers that YouTube’s failure to “terminate the accounts of repeat infringers . is why we are here.” Pl.’s Reply at 1. But as this Court already made clear, Business Casual “misconstrues the safe harbor provisions of the DMCA and how [those provisions] interact with the other federal copyright laws.” First Opinion, 2022 WL 837596, at *5. The DMCA does not establish an affirmative cause of action. Rather, the DMCA provides internet service providers (“ISPs”) with potential “safe harbor” defenses that will shield ISPs from liability for copyright infringement so long as certain statutory criteria, including the maintenance of a policy for terminating “repeat infringers,” are met. See Arista Records LLC v. Usenet.com, Inc., No. 07-cv-8822, 2008 WL 4974823, at *4 (S.D.N.Y. Nov. 24, 2008); Martin v. Tumblr, Inc., No. 15-cv-8338, 2017 WL 11665339, at *4 (S.D.N.Y. Feb. 10, 2017) (DMCA provision “does not create a right of action, but rather creates a defense to liability, or safe harbor”); see also 17 U.S.C. § 512(i)(l)(A) (an ISP will qualify for the “limitations on liability established by this section . only if the [ISP] . has adopted and reasonably implemented” a “policy that provides for the termination” of “repeat infringers”). Put differently, an ISP’s compliance with the DMCA’s safe harbor provisions does not come into play until a plaintiff pleads a viable copyright infringement claim against the ISP in the first instance, at which point, the ISP may assert its eligibility for a safe harbor as a defense to liability. See Arista Records, 2008 WL 4974823, at *4 (DMCA’s “limitations of liability apply if the provider is found to be already liable under existing principles of law”).

In short, Business Casual cannot transform the DMCA’s prerequisites for a safe harbor defense into the basis for an affirmative claim against YouTube. That is not how the statute was written, and it is not for the Court to permit a cause of action that Congress did not create. The allegations concerning YouTube’s failure to terminate TV-Novosti’s channels would be relevant here only if the plaintiff had first pleaded a plausible claim for copyright infringement, thereby shifting the burden to YouTube to establish its entitlement to a DMCA safe harbor defense.

But… therein lies a problem. Because there is no plausible claim of liability for YouTube. There may well be a plausible claim against TV-Novosti, but that doesn’t magically make YouTube liable as well. Indeed, this case is complicated by the fact that Business Casual uploads its videos to YouTube granting YouTube a license to them. That doesn’t mean that TV-Novosti gets a license, but it does mean that suing YouTube for infringement (especially direct infringement) makes no sense, as it already has a license to the work, and therefore cannot be infringing:

In any event, the plaintiff’s Amended Complaint fails to state a claim for direct copyright infringement because it is devoid of allegations casting doubt on the existence, validity, or enforceability of the License. As noted in the First Opinion, “it is a hallmark principle of copyright law that licensors may not sue their licensees for copyright infringement,” Jasper v. Sony Music Ent., Inc., 378 F. Supp. 2d 334, 339 (S.D.N.Y. 2005), and here, Business Casual granted to YouTube a broad License to “use,” “reproduce, distribute, prepare derivative works [from], display, and perform” the content in Business Casual’s YouTube videos, see First Opinion, 2022 WL 837596, at *5. Accordingly, under the plain language of the License, Business Casual cannot hold YouTube directly liable for hosting or displaying video content that Business Casual has uploaded to YouTube’s platform. That would include the hosting or displaying of the copyrighted video segments that appeared on TV-Novosti’s YouTube channel, because Business Casual had authorized YouTube to display those segments when it uploaded the Rockefeller and J.P. Morgan Videos to YouTube.

Business Casual tried to argue that nothing in the license allowed YouTube to then license that work to TV-Novosti, but as the judge explains, that’s not how any of this works.

But this argument misunderstands the import of the License and the nature of YouTube’s license defense. The relevant question here is not whether YouTube was entitled to authorize TV-Novosti’s use of Business Casual’s copyrighted video content. Rather, the question is whether YouTube’s use of the plaintiff’s content — here, the display of copyrighted video segments that Business Casual had previously uploaded to YouTube — fell within YouTube’s broad rights as the licensee of the plaintiff’s YouTube videos. As discussed above, the License does cover that use.

What about contributory or vicarious infringement? No, those don’t fly either. Those things require at least some level of knowledge or profiting off of the infringement by YouTube, which is not shown at all.

Like the Original Complaint, the Amended Complaint contains no allegation that YouTube knew of the allegedly infringing TVNovosti videos before Business Casual lodged its DMCA takedown notices. To the contrary, the Amended Complaint alleges that TVNovosti manipulated the video content for the precise purpose of evading YouTube’s detection. Moreover, because YouTube promptly and permanently removed the First, Second, and Third RT Videos from its platform once it received the plaintiff’s DMCA notices, the Amended Complaint does not permit an inference that YouTube acted in concert with TV-Novosti.

The Amended Complaint also fails to state a claim for vicarious infringement. To hold a defendant vicariously liable for another party’s infringing act, a plaintiff must allege plausibly that the defendant “profit[ed] from [the] direct infringement while declining to exercise a right to stop or limit it.” Metro-Goldwyn-Mayer Studios Inc. v. Grokster, Ltd., 545 U.S. 913, 930 (2005). In this case, the plaintiff’s allegations foreclose an inference that YouTube declined to exercise its right to stop TV-Novosti’s alleged infringement. To the contrary, the allegations indicate that YouTube removed the First, Second, and Third RT Videos, and thereby stopped the alleged infringement, shortly after Business Casual notified YouTube of its copyright concerns.

One other point that the Business Casual complaint kept making is that it took YouTube 23 days to remove one of the videos after receiving one of its DMCA takedown notices. This is used to argue that YouTube wasn’t expeditiously removing infringing works. But, this is presented out of context. As the judge makes clear:

Finally, the Amended Complaint takes issue with the fact that YouTube removed the Second RT Video 23 days after receiving the plaintiff’s second DMCA notice. To the extent the plaintiff intends to suggest that the length of this 23-day period renders YouTube secondarily liable for TV-Novosti’s infringement, such an argument is meritless. As before, Business Casual “has not pointed to any authority” suggesting that YouTube was obligated to investigate Business Casual’s complaint on “a more compressed timeline.” First Opinion, 2022 WL 837596, at *4. Moreover, the new allegations in the Amended Complaint indicate that YouTube spent the 23-day period actively communicating with Business Casual and evaluating the alleged infringement, see Am. Compl. tt 118-119, 123-126, foreclosing any inference that YouTube simply sat back and allowed the alleged infringement to occur. Accordingly, the purported delay in YouTube’s removal of the Second RT Video does not support a contributory or vicarious infringement claim against YouTube.

In other words, while it did take 23 days, much of that was spent with YouTube communicating back and forth with Business Casual to make sure the work was actually infringing. That’s not ignoring infringement, it’s making sure that it’s not incorrectly taking down non-infringing videos.

Of course, Business Casual immediately appealed, and copyright cases can be a bit of a crapshoot in the appeals court, including the 2nd Circuit. But this seems like a fairly slam dunk bullshit case by someone who does not appear to understand the fundamentals of copyright law, but seems more focused on creating a stupid culture war by misstating how copyright works.

Filed Under: alex edson, copyright, direct infringement, dmca, dmca 512, licenses, notice and takedown, repeat infringer policy, ron coleman
Companies: business casual, google, youtube

Pro Tip: If You’re Suing YouTube And Asking For More Time Because The CEO Is Sick, Don’t Post A Highly Produced YouTube Video Attacking The Ruling & Lawyers

from the not-how-any-of-this-works dept

There are a bunch of moving parts involved in this case that I really wasn’t planning on covering — but something quite amusing happened and I can’t resist. The basics are fairly straightforward: there’s an outfit named “Business Casual” that makes videos, apparently sometimes discussing historical events and whatnot. One part of the videos is that they create “parallax” images, in which they take apart old public domain photos and give them a sort of 3D feel (sometimes creating new images entirely). RT Arabic (the Arabic language wing of RT — i.e., Russia Today — owned by the state funded TV-Novosti) apparently used some snippets of these parallax images from a couple of Business Casual videos. Business Casual filed DMCA takedowns, causing the RT Arabic channel to get some copyright strikes, and even had the account briefly taken down, though it was then reinstated.

There are a bunch of nitty gritty details that aren’t worth going into, but RT Arabic counternoticed the DMCA takedowns, claiming fair use (and without going into the details, in at least some of the cases, they seem to have a fairly credible fair use claim, but I wouldn’t call it a slam dunk). Under the DMCA, once someone files a counternotice, YouTube will generally repost the videos (and remove the strikes) if the copyright holder doesn’t sue within 10 days. Business Casual found a copyright lawyer and sued TV-Novosti for copyright infringement.

That’s all normal enough. But, a month and a half later, the company also sued YouTube itself, arguing that YouTube directly infringed its copyrights as well. That seems like a questionable move for a whole variety of reasons.

The case against TV-Novosti has continued, with the judge basically not being impressed by the fair use arguments. I think a stronger fair use argument was there than the judge allowed, but as I noted, it’s not a slam dunk and the ruling seems perfectly fine. For what it’s worth, both sides then had their lawyers withdraw. Business Casual replaced its lawyer with Ron Coleman, who many, many years ago did some useful and impressive work on free speech, but went deep into Trump cultist territory and is now mostly known for filing nonsense, anti-speech, culture war bullshit. TV-Novosti appears to have replaced its lawyers with… no one? And decided to just start ignoring the case, leading Business Casual to seek a default judgment, which it seems likely to get. That’s all fair enough.

The case against YouTube, as expected, went nowhere. The judge dismissed it pretty easily. Even if TV-Novosti was infringing, the idea that YouTube was a direct infringer is nonsense. Professor Eric Goldman had a writeup of the ruling back in March. There were some oddities in the ruling, but it was clearly correct on the law. Once again, after this ruling, the company’s lawyer withdrew (suggesting a disagreement over strategy) and was replaced with Coleman.

Business Casual / Coleman then repeatedly asked the court for extensions in order to file an amended complaint. Coleman mentioned in some of these letters that the main reason for the extension request was “because the health of the plaintiff’s principal, Mr. Edson.” The most recent such request came on August 16th, with Coleman noting:

The reason for this request, as well as its belated timing, is the deteriorating health of my client.

Mr. Edson, Plaintiff’s principal, suffers from severe bilateral tinnitus, a condition that causes extremely loud and constant ringing in the ears. He is in agonizing pain and cannot function at this time. I expected to receive my client’s feedback and approval on the reply submission at the end of last week, but he simply has been unable to operate.

Anyway, something else happened on August 16th.

That is, on August 16th, the same day his lawyer was telling the court that Edson “cannot function at this time,” Edson had posted a nearly two hour long, highly produced video on YouTube all about the case, complete with (I shit you not) a Vladimir Putin lookalike trying (poorly and inaccurately) to explain copyright law. Most of the video is a very healthy looking Edson, complete with very dramatic concerned looks, spewing a very passionate, but dubious, explanation of the case. If you wish to submit yourself to torture you can watch the whole video. I did. Edson makes a very emphatic case for his very, very misinformed beliefs about (1) copyright law (2) YouTube deliberately colluding with Russia and… some other nonsense, including that “YouTube is not an American company” because it doesn’t “stand for American values.” Almost everything in the video is, at best, extremely confused about the nature of copyright law. Multiple times while watching the video I had to mutter “that’s not how any of this works.”

Just for example, at one point, he notes that he emailed YouTube execs directly, after his case was happening. YouTube execs, quite correctly, noted that since he was currently a party in a lawsuit against them, he had to only talk via their lawyers, and not try to communicate directly. That’s, uh, kinda basic stuff — but he tries to suggest it’s all an example of how evil Google is.

Also, he attacks the very correct argument that YouTube made as part of its response to his lawsuit: that his demand that they takedown entire channels, full of non-infringing works, raises serious 1st Amendment issues. It does. I mean, there’s a whole big important Supreme Court case all about that fact. But Edson acts as if this is crazy talk. He’s wrong.

He’s also very confused about the reasoning behind YouTube’s defense, which in part notes that under the DMCA it wants to see cases where there are credible fair use claims fully adjudicated before it recognizes someone as a repeat infringer. That’s the correct stance. It’s one that is protective of free speech (contrary to Edson’s claims in the video that YouTube is somehow against free speech values), because it makes sure that the judicial system has determined if something is truly infringing before ordering the speech suppressed. (Not to mention that he’s wrong about the appeals process and what it means for a case to be fully adjudicated, but that’s a smaller point).

He also makes some pretty incendiary claims insulting the judge in the case, calling YouTube’s lawyers “pathological liars” with “no regard for the truth.” He also appears to call them “evil” in a overly dramatic (and laughable) moment in which he goes from black-and-white to backlit color, and stands up from behind a desk while poorly dramatizing anger and saying “evil will not prevail.”

Anyway, I had seen the video before looking through the docket, and originally wasn’t going to write anything about it, because the video is just so wrong about so much (though, of course, many of those watching it are taking it as accurate despite how misleading it is and how incorrect on the law it is). But then, in looking at the docket, I saw that the very same day that this two-hour, very highly produced video of Edson dramatically misrepresenting many of the key elements of his case, and standing up and screaming about how evil YouTube is and how he’ll never back down… his lawyer was filing a request for a time extension insisting that Edson’s health was so bad that he was “unable to operate.”

YouTube’s lawyers noticed that too.

And, the very next day, they sent a note to the judge highlighting this, well, discrepancy.

This is the third straight time Plaintiff has claimed that its CEO, Alex Edson, has fallen ill right around the time that a brief is due. See Dkts. 46, 51. While we would normally take the representations in Plaintiff’s letter to the Court at face value, we were surprised to see that yesterday – the same day as its belated request for an extension – Mr. Edson posted a lengthy video to his YouTube channel (available at https://youtu.be/4IaOeVgZ-wc) making a variety of baseless claims about this case and asserting conspiracy theories about YouTube. Mr. Edson, who does not appear in poor health, specifically targets Defendants’ counsel by personally ridiculing them, accusing them of lying to the Court, identifying them by name, and posting their photographs (see, e.g., clips beginning at 27:45, https://youtu.be/4IaOeVgZ-wc?t=1665, and 1:43:00, https://youtu.be/4IaOeVgZ-wc?t=6180, where Mr. Edson states: “If you guys are wondering how this possibly could have happened, and how a judge can get it so wrong, it’s because YouTube’s lawyers are pathological liars. These people have no regard for the truth. Put simply, YouTube has been successful in misleading the court.”).

Although it is unclear when this footage was recorded, it was posted yesterday, suggesting Mr. Edson has likely been busy finalizing it over the last few days or weeks while he could have been attending to the reply brief. We think it appropriate for the Court to consider this sequence of events in determining whether to retroactively allow Plaintiff additional time for a reply brief that it failed to file according to the Court’s deadline.

Just slightly after that was filed, the judge still granted the extension, though it’s unclear if he had seen YouTube’s letter by that time. Granting extensions is pretty standard practice here so it’s not surprising that it was granted. But, still, it can’t be a good look for Business Casual.

Meanwhile, Business Casual’s strategy seems to be to try to turn this into a battle in the court of public opinion, rather than the court of law. The organization has been trying to whip up social media fury about all this without much luck. It’s also been trying to get various politicians (like Ted Cruz and Josh Hawley) to pay attention and even called for the CIA and the State Dept. to investigate YouTube… because Business Casual is mad that YouTube applied its repeat infringer policy in a way that it doesn’t like.

He’s also trying to play up about how he’s being “shadow banned” and suppressed because the nearly two hour long rant isn’t getting as many views as he wants. Basically none of his tweets are getting any pickup, but who knows sooner or later maybe one of the politicians (or Elon Musk!) who he’s tweeting at will retweet him without understanding just how silly and legally deficient his argument is.

Filed Under: alex edson, copyright, dmca, intermediary liability, repeat infringer policy, takedowns
Companies: business casual, google, tv-novosti, youtube