Speaker 1: Thanks to Audible for keeping Legal Eagle in the air. Hey Legal Eagles, 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 it 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 Corey Arnold from 12tone. Corey, thank you so much for joining us on the yet-to-be-titled Legal Eagle interview show.

Speaker 2: Yeah, thanks for having me. Like Devin said, my name is Corey. 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 like commentary and critique in terms of fair use. But I still, obviously I get a lot of fraudulent copyright claims and I was wondering, like I know that the actual copyright claim system inside YouTube is not an actual legal entity, but once it gets to like DMCA takedown notices and stuff, I'm wondering sort of what the disincentives are for companies to, for like major labels and whatever, to issue those sorts of fraudulent claims because I mean, I hope there are some.

Speaker 1: 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 you know, 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 in 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 512F, 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 some of these takedowns.

Speaker 2: 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 where it has gone a little 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, and they issued a takedown. And then I took it to the next level in the YouTube appeals process, which says effectively either back off or actually sue me, like 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? And 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 I was just like, in that case, if your client didn't check with their lawyers,

Speaker 1: 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. Yeah, 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 liable for attorney's fees for the improper takedown.

Speaker 2: And that's interesting. In cases where you don't just get an email from the lawyer saying, we didn't look at this, how do you, because 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 sort of proving that you did or didn't have a good faith belief

Speaker 1: 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. You're never certain until a judge has stamped 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 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 US 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. And you would be entitled to all the documents, maybe all the email traffic where they dealt with this particular video. And 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 future. 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.

Speaker 2: Like we've taken these classes. Like anyone who has a music degree knows at least the rudiments of copyright law because we have to, right? So we know what we're doing for the most part.

Speaker 1: 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 Corey created, really is the absolute pinnacle of musical analysis on YouTube. So keep at it and hopefully the studios don't give you too hard of a time with your material. Just keep appealing. Yeah, sounds good. Well, Corey, thank you for joining the Untitled Legal Eagle interview.

Speaker 2: Thanks for having me.

Speaker 1: Okay, cut the cameras. Thanks for doing this interview, Corey. I really appreciate it. You know, Corey, have you ever heard of Audible? You might really enjoy this audio book, How Music Works by David Byrne. He's the lead singer of the 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 you know, 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 Legal Eagles a free 30-day trial with two free originals. All you need to do is go over to audible.com slash Legal Eagle or text Legal Eagle to 500-500. You can download any audio book 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. Corey, you should definitely go and check out how music works on Audible. Just head over to audible.com slash Legal Eagle or text Legal Eagle to 500-500 or click the link in the description. Yes, I'm talking to you, Corey. Who else would I be talking to?