Tuesday, August 30, 2011

Hungrybear9562 still doesn't get it

It seems that he is still having trouble understanding what fair use is. In fact a comment reply he left on the above video reads...

@sheri226 The rule is open to interpretation. I seek to get into court and fight this. I seek a court battle, I say bring it on Mother effer, lets fight, I love to fight!

Well he may love to fight, but hopefully he takes the time to consult with a lawyer who specializes in copyright law before he does it.

After all he sent me a PM after I uploaded my first video trying to help him. In it he stated...

I find people who make copies of other peoples work pathetic. I do not know the official rules about fair use. Please inform me and I want proof, not opinions please. I may decide to challenge fair use once learn what exactly it says, please provide links. Thanks. Bear.

So here we have a person who readily admits that he does not know what fair use is, but somehow feels qualified to lecture others about unauthorized use of his videos.

For the record the DMCA was regarding this video. I do not wish to get into the merits of the video. I do not wish to involve myself in their online drama. My only concern has been and continues to be the misuse of the DMCA on the part of Hungrybear9562

Find more videos like this on i-Tube

For the record this is what I sent Hungrybear9562 when he first contacted me.

As far as the part about not uploading content that is not yours, you are correct. YouTube however places that in there for their own legal protections. Such as when Viacom sued them for 1 Billion.

This does not mean that YouTube does not recognize fair use. They actually have an article on it.

A good source of information about fair use is LiberalViewer. He is actually a lawyer and on his channel you can actually see him at the Vidcon pannel last year discussing fair use with YouTube staff.

In short the DMCA was put in place to ensure that your content would be protected from unauthorized reproduction. For example when your double rainbow video went viral no doubt many simply posted your video on their channel trying to take views and money away from you. Thus any DMCA you posted in that case would be justified.

The video in question in this case does fall under fair use. Of course that is just my opinion which is just as valid as yours. Fair use is a defense you can claim once an alegation of copyright infringement has been made. The next step of course after Youtube processes the copyright counternotice is for you to persue action in court to keep the video down.

And of course you will have to do this each and every time a copy of this video pops up. Then at the court hearing you will have to demonstrate that the video uses enough of your content to qualify as infringing.

As you know the fair use test is 4 parts. These 4 parts must be weighted independantly and one does not necessarily overule the other.

1. What is the nature of the use is it commerical or non commercial. Because there was no ads on the video (at least I don't think there was) this was non commercial.

2. The nature of the work, is it fiction or non fiction. Non fiction uses tend to be viewed more favorably in the courts.

3. How much of your video was used in his. The less content of yours in the video the less infringing. Also remember by submitting a DMCA you are claiming ownership of the video. Including the content from Lisa and Onision.

4. Does the use of your content compete with you in the marketplace. This does not mean does the use harm your ability to market yourself. Rather does this video compete with yours when people are searching for the latest from the Double Rainbow Guy. A good example of this would be a movie review. A bad movie review can hurt the chances of the movie to market itself, but does not compete with the movie. Those that want to see the move can go see it, those that are searching for movie reviews find movie reviews.

I do hope that clears it up. Hopefully you and Lisa can both move on with your lives.

I now would like to allow Hungrybear9562 to see a few other videos regarding the DMCA. The first is from VenomFangX who was forced to read an apology that was written by a lawyer.

VenomFangX eventually learned

Also Inmendham eventually learned as well

One of the best videos on the need for Fair Use is this video by TheMaskedAnalyst. Sadly he no longer makes videos. The last time I talked to him which is now over a year ago, his health was in pretty bad shape. Still his library of information is an invaluable asset to the YouTube community.

If Hungrybear9562 looks at nothing else, then I strongly urge him to watch this video and learn from it.

See if we were to use Hungrybear9562's logic, there could never be any negative movie reviews such as this.

Why would there be, no film company would ever allow it's content to be used to trash one of it's movies. As a result there would never be any bad movie reviews, no bad book reviews. The only reviews out there would be positive ones if copyright owners were to disallow any use of their content they don't approve of.

According to Hungrybear9562 fair use is a gray area.

I think the fair use is a grey area, I'm willing to do some work and spend some money fighting for what I think is right, I am willing to set precedent, I am a pioneer.

No, fair use is an affirmative defense that you can make when someone accuses you of violating their copyright. To quote from the EFF.org "Fair use allows consumers to make a copy of part or all of a copyrighted work, even where the copyright holder has not given permission or objects to your use of the work."

Just because you say something is fair use does not mean that it is. Furthermore, a copyright owner can not simply claim something is not covered by fair use. This is an issue that can only be determined case by case in the courts.

Any time you use someone else's content you run the risk of getting a DMCA. The best advice I can give anyone is to use their own content. However, in certain cases, using the content of others is crucial in proving your case. Such is the case with Hungrybear9562. He has removed the source videos from his channel. I am sure he would like nothing more than for this drama between him and Lisa to go away. However, if someone wished to criticise him or her on their behavior some kind of proof would be needed. Because the videos are no longer on their channels as a point of reference, using clips of their deleted videos is necessary.

You can see the video yourself, it is embedded here. The first DMCA that Hungrybear9562 filed could be excused with simple ignorance of the law. After all he himself said he did not know much about fair use. However, that excuse no longer holds water, as he has now been educated. Any subsequent DMCAs filed by him, were malicious and simply an attempt by him to censor criticism on the internet.

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