- Thanks to Audible for keeping LegalEagle in the air.
(patriotic music)
Hey, LegalEagles, it's time to think like a lawyer
and today we are going to have a somewhat unusual video
of some of my favorite YouTubers who are here at VidCon.
So I thought I would take the opportunity
to corral some of these great YouTubers to spend some time
and talk about some of the legal issues
that they deal with on an everyday basis
being creators on YouTube.
And I am thrilled that we have the creator
of one of my favorite music-related channels.
This is Cory Arnold from 12tone.
Cory, thank you so much for joining us
on the yet-to-be-titled, LegalEagle interview show.
- Yeah, thanks for having me.
Like Devin said, my name is Cory.
I run a channel called 12tone.
I'm a music theorist and I do a bunch
of different types of musical analysis.
One of our main series is we'll look at pop and rock songs
and the harmony and the compositional aspects of those
which I think pretty clearly falls under commentary
and critique in terms of fair use but I still obviously,
I get a lot of fraudulent copyright claims
and I was wondering,
I know that the actual copyright claim system inside YouTube
is not an actual legal entity
but once it gets to DMCA takedown notices and stuff,
I'm wondering what the disincentives are
for major labels and whatever
to issue those sorts of fraudulent claims
because I mean, I hope there are some.
- Yeah, well, it's a great question because obviously,
copyright is a huge issue on YouTube these days,
both some of the people who are pirating things illegally
and creators who are doing things
that are perfectly within their legal rights
and yet they are still being claimed
by some of the rights holders.
We've seen a lot of traffic coming
from some of the major music studios.
I'm sure you and I could probably name some
that are particularly known
for making false claims against creators.
And so an answer to your question,
yes, there are actual penalties for companies
and individuals that make false claims
and there are a couple of things.
Most of them stem from what's called
the Digital Millennium Copyright Act or the DMCA.
And as you alluded to, one of the mechanisms
that a rights holder has to take down what they consider
to be illegal material is a DMCA takedown
and that is basically the company saying
to a platform or a website,
you are hosting material that is illegal
and you should take it down.
I'm giving you notice of it.
And really, if the platform or website
wants to avoid being liable for copyright infringement,
they have to take it down and that's something
that a lot of creators don't understand
is that YouTube sometimes doesn't have discretion
to take it down.
But that being said, there are ways of making sure
that when companies do take creators' videos down,
there are some penalties to them.
The first is that when you issue a DMCA takedown,
that's a real legal document.
That is not the YouTube Content ID system.
This is something that's enshrined in law.
And the most important thing is that
if you issue a DMCA takedown in bad faith
and it ultimately goes to court,
you can be liable for attorney's fees.
And so, there's a bit of a fee-shifting provision
in the DMCA that if you don't issue
a takedown in good faith, you might be on the hook
for not only your own attorney's fees
but the attorney's fees of the plaintiff.
Companies, even the studios and labels are very reluctant
to issue DMCA takedowns because they can be on the hook
for copyright misrepresentation and they can be on the hook
for the attorney's fees
if the creator sues them under Section 512 f
which is the misrepresentation part of that statute.
Unfortunately, creators are not likely
to sue the rights holders for making these false claims.
I'd love to hear from your perspective
what has happened to the extent
that you have had to deal with
with some of these takedowns.
- Yeah, so I've gotten a fair amount of copyright claims
all from one label who I probably shouldn't name,
I don't know.
But mainly, just a lot of videos that I've done,
whenever I've done their songs,
the one time what has gone a little a bit further,
I actually got one actual takedown notice from the label,
not the major label that was making the claim,
it was the rights holders for the individual, the band.
- Ah, interesting. - They issued a takedown
and then I took it to the next level
on the YouTube appeals process
which says effectively either back off or actually sue me,
take me to court and they weren't gonna do that.
But once I filed that, pretty quickly,
I get this email from the lawyers of that band saying,
hi, we are this band's lawyer and we got this notification.
We would like to investigate further
but we can't watch the video because it's not on YouTube
and no one in this office has seen it
so could you send us a copy so we can figure out
if this is copyright infringement?
I was just like, no, I can't do that.
I didn't have it.
In the first place, it was an old video
but it was just like in that case,
if your client didn't check with their lawyers,
that feels like a pretty obvious admission of negligence.
- Yeah, that's pretty crazy
and it's not at all surprising frankly
because often the people that issue
the first content ID claims
are not connected to the legal departments
of these same companies and sometimes,
the training isn't very good and it will be a non-lawyer
that issues one of these DMCA takedowns.
And after the DMCA takedown is issued,
the video goes down and the lawyers can't view it,
you can't view it which is hysterical
that you had to deal with the lawyers
even asking to take a look at your video.
And there's a famous Ninth Circuit case
called Lenz versus UMG.
People may be familiar with UMG.
- I've heard the name, yes.
- And it involves a case where they issued a DMCA takedown
without even really considering whether fair use applied
and the Ninth Circuit said the DMCA requires you
to form a good faith belief before you issue the takedown,
and not forming a belief
is not the same as a good faith belief
and so they got severely reprimanded
for issuing this takedown
without really considering fair use.
And so now, it is really the law of the land,
at least in California and the rest of the Ninth Circuit
that you have to at least consider
whether the video is fair use or not
or you could be liable for misrepresentation
and in libel for attorney's fees for the improper takedown.
- And that's interesting.
It's like in cases where you don't
just get an email from their lawyer
saying we didn't look at this,
'cause in my understanding, and I might be wrong here,
but my understanding is that in terms of fair use,
nothing actually is or isn't fair use technically
until a judge rules on it
so what is the process of proving that you did
or didn't have a good faith belief that it wasn't fair use?
- Yeah, I think those are two separate things.
I've heard people say
nothing can be certain unless it's litigated
and that's technically true
but that's technically true about anything,
not just copyright. - Yes, that's true.
- You're never certain until a judge
has stamped the the judgment.
But the underlying issue of how would you prove that,
well, in an ideal world, you would file suit
and then you would be entitled to discovery
which we tend to focus on the drama
of the trials on TV and in the movies
but the vast majority of what lawyers do day in and day out
is actually just the process of getting all the facts
that are relevant.
In The U.S. at least,
we've sort of done away with trial by surprise.
We want everyone to know all of the facts
before they get to trial and so a lot of my job
has been spent writing discovery requests
where I will ask for the relevant documents from you
and in court, you are obligated to turn those over
and I will often conduct these interviews
of the witnesses of the other side,
those are called depositions,
and so if state of mind is relevant,
then you would be entitled to sue them
and then find out all the people who made the decision
and you'd be able to put them in a chair
and you would ask them under oath
what they thought about this particular song
that was taken down
or this video. - Yeah, a video.
- And you would be entitled to all the documents,
maybe all the email traffic
where they dealt with this particular video.
It's a cumbersome process but that's how you deal with it.
You get the discovery in that topic.
I really hope that creators
are less afraid of copyright issues in the nature.
I think that there's a lot of great stuff out there
and there's a lot of bullying going on,
certainly a lot of copyright infringement
on the internet as well
but for all of these music channels that I see,
your channel Paul Davids, Adam Neely,
you guys are doing such great work with music education.
- Yeah, and we all have music business education too.
We've taken these classes.
Anyone who has a music degree
knows at least the rudiments of copyright law
'cause we have to.
- Right, right.
- So we know what we're doing for the most part.
- That's awesome.
Well, I hope you keep at it.
I love the channel.
I recommend anyone interested in music theory 12tone,
the channel that Cory created,
really is the absolute pinnacle
of musical analysis on YouTube.
- Thank you. - So keep at it
and hopefully the studios don't give you too hard of a time
with your material.
- I'll just keep appealing.
- Yeah, sounds good.
Well Cory, thank you for joining
the untitled LegalEagle interview.
- Yeah, thanks for having me.
(eagle screeches)
Okay, cut the cameras.
Thanks for doing this interview, Cory.
I really appreciate it.
Cory, have you ever heard of Audible?
You might really enjoy this audiobook
How Music Works by David Byrne.
He's the lead singer of Talking Heads
and he does a really fantastic job
of explaining how music has evolved over time
according to both the context that it's written in
and how music technology advances.
Wait, what?
Yeah, I know you're already an expert about music theory
but it's an amazing exploration about music
from one of the great pop authors living today.
It talks about how one genre
absorbs the influences of other genres,
how musicians anticipate what their audience will want,
and how instruments were suited for music venues,
not the other way around.
No, I don't care if you've already read the book.
Why don't you just listen to it again on Audible.
Audible is giving LegalEagles a free 30-day trial
with two free originals.
All you need to do is go over to Audible.com/LegalEagle
or text LegalEagle to 500-500.
You can download any audiobook of your choosing
and get two free Audible originals.
No, no, no, they should use my link, not yours.
No, I don't care if you also have a link.
People should use my link because clicking on the link
in the description really helps out this channel.
Cory, you should definitely go
and check out How Music Works on Audible.
Just head over to Audible.com/LegalEagle
or text LegalEagle to 500-500
or click the link in the description.
Yes, I'm talking to you, Cory.
Who else would I be talking to?