Introduction

Here at Vondran Legal® we are seeing more and more incidents of YouTube refusing to forward counternotices on to a DMCA complainant. This is most unfortunate because most creators take great pride in their work, including having great respect not only for their own intellectual property rights but also for others, including their "competitors." However, with so much money (monetization), recognition, accolades, and endorsements on the line, things can heat up sometimes without notice and escalate very quickly. Usually, this is where Vondran Legal® is brought in. This blog discusses what to do when YouTube (or other social media platforms) refuses to forward your counternotice to the complaining party who believes you have infringed on their copyrights.

What you need in your YouTube Counter notice

1. Make sure to emphasize that the DMCA complaint is "mistaken" or has "misidentified" the content they allege is infringing. In other words, in most cases they are "mistaken" as to copyright infringement." Start your response with this simple statement.

Here is a sample you can use (alter as needed to make the case for fair use):

Dear YouTube, please process this counternotification pursuant to the rules prescribed under the Digital Millennium Copyright Act ("DMCA"), which affords online platforms, such as YouTube, "safe harbor liability" for following the DMCA rules, including but not limited to the notice and counternotice requirements. We disagree, respectfully, with the claims made by the claimant, and belive they are "mistaken" as to their claim of alleged infringement. We take very seriously the rights of copyright holders (of which we ourselves are), and we wish to explain why our video using their content qualifies as "fair use" under 17 U.S.C. 107 of the United States Copyright Law. Here is our explanation as to their complaint and why we feel federal fair use rights apply to this case, making their assertions mistaken in fact and substance.

Provide a detailed fair use analysis of the Clip(s) you used in your video.

Here is our fair use analysis regarding the use of their clip(s)"

First, please note that the federal law protects certain uses of third party content, even without a license:

"Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. That is what we are doing with our content.

Here is our fair use analysis that we hope YouTube will consider in your decision to forward the counter notice to the complainant. As you know, here are the four fair use factors courts weigh in every case of alleged copyright infringement where a content creator arguing fair use is accused of copyright infringement.

1. Purpose and Character of the Use:

This factor considers whether the use is commercial or nonprofit and whether it is transformative (e.g., for criticism, commentary, or parody). Transformative uses are more likely to be considered fair. Our videos are made for educational purposes. We take extreme care and caution to use only the minimum necessary amount of third-party content to illustrate our point. We also used narration. editing and took other steps to repurpose and transform their content into something new for the world and ………….

2. Nature of the Copyrighted Work:

This factor examines whether the third party's work is more factual or creative in nature and whether it has been published or unpublished. Factual and published works are more likely to be considered fair use than highly creative or unpublished works. Here, the clip we used is more factual in nature (a short clip of........) that has also been previously published. We only used a very minimal amount of their content to educate people as to.........and to comment/criticize...............These factors weigh in favor of fair use.

3. Amount and Substantiality of the Portion Used:

This factor considers how much of the original work is being used and whether the portion used is a significant or "heart" part of the work. Using only a very small and insignificant portion of the work is more likely to be considered fair use. Our use of the clip was less than 3 seconds.......... It would not be considered the heart of the work because .............. The claimant's entire video is _____ in length, and our 2-3 second clip is but a tiny % of the complete work/video. If short clips like this cannot be used, fair use is of little use to creators, and the constitutional mandate to promote the progress of the useful arts would be meaningless. Creators need to be able to borrow and share from each other, and YouTube benefits from this as well. We fiercely believe fair use applies in this case, and we respectfully request that our counternotice be forwarded to the claimant. If there are any issues, I believe strongly we can work this out amicably.

4. Effect of the Use on the Market:

The fourth and final factor assesses whether the use of the copyrighted work harms the market for the original work or its potential market. If the use substitutes for the original work or its licensing opportunities, it is less likely to be considered fair use. We have no intent to infringe on the claimant's marketplace. We don't believe there is any issue here. Our clip is very short, and we even provided credit in our end scroll. It would be incredible for any federal court to conclude that our very limited and transformative 2-3 second video would harm their market for the original or act as a substitute. Again, by forwarding the counter notice, this gives us a chance to discuss and work this out amicably if there is any disagreement.

Thank you for your consideration, and we are happy to discuss or provide any additional documentation required to address this matter. Thank you.

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Attorney Steve Tip: Add as many details and facts as you can to make your case. You really need YouTube to forward the counternotice since this will likely end the dispute (unless the other party determines to file a federal court lawsuit within 10 days of receiving the counternotice). If they will not forward the counterclaim, you will likely be stuck with a strike, which can ultimately lead to an account takedown (three strikes and you are out).