YouTube Transcript:
How Copyright Lawsuits Kill Free Speech

Skip watching entire videos - get the full transcript, search for keywords, and copy with one click.

Video Transcript

Available languages:

View:

Any kind of legal mechanism that allows

Any kind of legal mechanism that allows somebody without the intervention of a

somebody without the intervention of a

somebody without the intervention of a court to get something off the internet

court to get something off the internet

court to get something off the internet is invariably going to be used for the

is invariably going to be used for the

is invariably going to be used for the same thing, which is somebody said

same thing, which is somebody said

same thing, which is somebody said something I don't like and I want it

something I don't like and I want it

something I don't like and I want it gone.

gone.

gone. For decades, content creators have

For decades, content creators have

For decades, content creators have fought against oppressive copyright

fought against oppressive copyright

fought against oppressive copyright restrictions on online content.

restrictions on online content.

restrictions on online content. Copyright claims are often wielded by

powerful corporations to take down

powerful corporations to take down videos, suppress criticism, or stifle

videos, suppress criticism, or stifle

videos, suppress criticism, or stifle parody through rigid restrictions on

parody through rigid restrictions on

parody through rigid restrictions on online speech. But now a troubling shift

online speech. But now a troubling shift

online speech. But now a troubling shift is unfolding. A prominent YouTuber has

is unfolding. A prominent YouTuber has

is unfolding. A prominent YouTuber has begun using copyright lawsuits to

begun using copyright lawsuits to

begun using copyright lawsuits to silence other creators speech and

silence other creators speech and

silence other creators speech and commentary on his content. I think this

commentary on his content. I think this

commentary on his content. I think this moment marks a potential turning point

moment marks a potential turning point

moment marks a potential turning point in online expression. These legal

in online expression. These legal

in online expression. These legal attacks that were once used almost

attacks that were once used almost

attacks that were once used almost exclusively by powerful media companies

exclusively by powerful media companies

exclusively by powerful media companies are now being leveraged by big content

are now being leveraged by big content

are now being leveraged by big content creators to attack smaller content

creators to attack smaller content

creators to attack smaller content creators that they don't like. Today I'm

creators that they don't like. Today I'm

creators that they don't like. Today I'm joined by Meredith Rose, senior policy

joined by Meredith Rose, senior policy

joined by Meredith Rose, senior policy council at Public Knowledge, a nonprofit

council at Public Knowledge, a nonprofit

council at Public Knowledge, a nonprofit promoting freedom of expression and open

promoting freedom of expression and open

promoting freedom of expression and open internet to talk about how copyright law

internet to talk about how copyright law

internet to talk about how copyright law and discussions of fair use are central

and discussions of fair use are central

and discussions of fair use are central to the fights over free speech in the

to the fights over free speech in the

to the fights over free speech in the digital age. Meredith, welcome.

digital age. Meredith, welcome.

digital age. Meredith, welcome. Thank you for having me.

Thank you for having me.

Thank you for having me. I want to start off by asking you, what

I want to start off by asking you, what

I want to start off by asking you, what does copyright law have to do with free

does copyright law have to do with free

does copyright law have to do with free speech? Can you explain how copyright

speech? Can you explain how copyright

speech? Can you explain how copyright and issues around sort of free speech

and issues around sort of free speech

and issues around sort of free speech and free expression online intersect in

and free expression online intersect in

and free expression online intersect in our legal system?

our legal system?

our legal system? Sure. So copyright in its original

Sure. So copyright in its original

Sure. So copyright in its original design is supposed to incentivize people

design is supposed to incentivize people

design is supposed to incentivize people to create new expressive works. This ran

to create new expressive works. This ran

to create new expressive works. This ran into a bit of a problem when the

into a bit of a problem when the

into a bit of a problem when the internet really took hold and rights

internet really took hold and rights

internet really took hold and rights holders were finding their copyrighted

holders were finding their copyrighted

holders were finding their copyrighted work popping up left and right on

work popping up left and right on

work popping up left and right on different websites. And so as part of

different websites. And so as part of

different websites. And so as part of this sort of grand bargain that was

this sort of grand bargain that was

this sort of grand bargain that was happening between tech platforms and

happening between tech platforms and

happening between tech platforms and rights holders at the time, we

rights holders at the time, we

rights holders at the time, we implemented this system called the

implemented this system called the

implemented this system called the Digital Millennium Copyright Act. And

Digital Millennium Copyright Act. And

Digital Millennium Copyright Act. And people are probably most familiar with

people are probably most familiar with

people are probably most familiar with this in the context of takedowns. And

this in the context of takedowns. And

this in the context of takedowns. And one of the provisions of the DMCA

one of the provisions of the DMCA

one of the provisions of the DMCA essentially says that if you as a rights

essentially says that if you as a rights

essentially says that if you as a rights holder find your work somewhere, you can

holder find your work somewhere, you can

holder find your work somewhere, you can send a notice to the platform and say

send a notice to the platform and say

send a notice to the platform and say that is mine and whoever has uploaded

that is mine and whoever has uploaded

that is mine and whoever has uploaded this does not have the rights to it and

this does not have the rights to it and

this does not have the rights to it and the platform is obligated to take that

the platform is obligated to take that

the platform is obligated to take that content down. And so what has actually

content down. And so what has actually

content down. And so what has actually happened with the DMCA is though it was

happened with the DMCA is though it was

happened with the DMCA is though it was designed to allow rights holders to, you

designed to allow rights holders to, you

designed to allow rights holders to, you know, police the use of their

know, police the use of their

know, police the use of their copyrighted content online, what it has

copyrighted content online, what it has

copyrighted content online, what it has ended up being in practice is a way for

ended up being in practice is a way for

ended up being in practice is a way for people to get things that are

people to get things that are

people to get things that are unflattering or that they don't like

unflattering or that they don't like

unflattering or that they don't like removed from the internet. So it's a

removed from the internet. So it's a

removed from the internet. So it's a very very powerful tool and it's just

very very powerful tool and it's just

very very powerful tool and it's just very widely abused.

very widely abused.

very widely abused. Was there concern about abuse when it

Was there concern about abuse when it

Was there concern about abuse when it was enacted and have there been any

was enacted and have there been any

was enacted and have there been any major legal challenges trying to kind of

major legal challenges trying to kind of

major legal challenges trying to kind of deal with this issue? So I don't know

deal with this issue? So I don't know

deal with this issue? So I don't know that anybody expected the degree and the

that anybody expected the degree and the

that anybody expected the degree and the pervasiveness of abuse that's actually

pervasiveness of abuse that's actually

pervasiveness of abuse that's actually happened. Also because you know the law

happened. Also because you know the law

happened. Also because you know the law was passed in 1998 and I think folks

was passed in 1998 and I think folks

was passed in 1998 and I think folks were still didn't really appreciate just

were still didn't really appreciate just

were still didn't really appreciate just how huge and transformative the internet

how huge and transformative the internet

how huge and transformative the internet was going to be. And there have been a

was going to be. And there have been a

was going to be. And there have been a lot of debates since then. Unfortunately

lot of debates since then. Unfortunately

lot of debates since then. Unfortunately the way that lawsuits have gone on under

the way that lawsuits have gone on under

the way that lawsuits have gone on under the DMCA has really actually removed

the DMCA has really actually removed

the DMCA has really actually removed more of the protections that were

more of the protections that were

more of the protections that were supposed to exist for uploaders. So

supposed to exist for uploaders. So

supposed to exist for uploaders. So classic example is the law has a

classic example is the law has a

classic example is the law has a provision which essentially says that

provision which essentially says that

provision which essentially says that you must consider if you are a rights

you must consider if you are a rights

you must consider if you are a rights holder before you send that notice you

holder before you send that notice you

holder before you send that notice you have to actually make sure that it's not

have to actually make sure that it's not

have to actually make sure that it's not a fair use that you can't send a

a fair use that you can't send a

a fair use that you can't send a frivolous notice just to do exactly the

frivolous notice just to do exactly the

frivolous notice just to do exactly the kind of thing that we keep seeing which

kind of thing that we keep seeing which

kind of thing that we keep seeing which is to you know take down content that is

is to you know take down content that is

is to you know take down content that is perfectly legally fine in practice what

perfectly legally fine in practice what

perfectly legally fine in practice what has actually happened is that courts

has actually happened is that courts

has actually happened is that courts have said well you need to think about

have said well you need to think about

have said well you need to think about fair use and fair use is so complic

fair use and fair use is so complic

fair use and fair use is so complic licate it. We really can't ever say that

licate it. We really can't ever say that

licate it. We really can't ever say that your guess was wrong. And so

your guess was wrong. And so

your guess was wrong. And so functionally, it's kind of a dead letter

functionally, it's kind of a dead letter

functionally, it's kind of a dead letter and there really aren't any penalties

and there really aren't any penalties

and there really aren't any penalties for sending abusive takedown notices,

for sending abusive takedown notices,

for sending abusive takedown notices, which is why we've got the situation

which is why we've got the situation

which is why we've got the situation that we have today.

that we have today.

that we have today. What sort of I I guess like role does

What sort of I I guess like role does

What sort of I I guess like role does intentionality play with copyright law.

intentionality play with copyright law.

intentionality play with copyright law. You know, if you encourage someone for

You know, if you encourage someone for

You know, if you encourage someone for instance like remix your songs and you

instance like remix your songs and you

instance like remix your songs and you put it out there and say remix my song

put it out there and say remix my song

put it out there and say remix my song and then people remix my song and you

and then people remix my song and you

and then people remix my song and you try to like copyright claim on them.

try to like copyright claim on them.

try to like copyright claim on them. like does that play any sort of role or

like does that play any sort of role or

like does that play any sort of role or is the law pretty to the letter?

is the law pretty to the letter?

is the law pretty to the letter? There's this concept called implied

There's this concept called implied

There's this concept called implied license which is essentially somebody

license which is essentially somebody

license which is essentially somebody told me I could do the thing or they put

told me I could do the thing or they put

told me I could do the thing or they put it out there specifically with the

it out there specifically with the

it out there specifically with the intention of somebody else using it. So

intention of somebody else using it. So

intention of somebody else using it. So good example is during the peak of the

good example is during the peak of the

good example is during the peak of the Drake and Kendrick feud last summer. I

Drake and Kendrick feud last summer. I

Drake and Kendrick feud last summer. I think it was Metro Boom put out the BBL

think it was Metro Boom put out the BBL

think it was Metro Boom put out the BBL Drizzy beat and essentially said go

Drizzy beat and essentially said go

Drizzy beat and essentially said go forth and use this one and I'll promote

forth and use this one and I'll promote

forth and use this one and I'll promote the one that I think is the best. which

the one that I think is the best. which

the one that I think is the best. which was for one thing it was a fantastic

was for one thing it was a fantastic

was for one thing it was a fantastic time to be online. That was arguably one

time to be online. That was arguably one

time to be online. That was arguably one of the last high points uh of 20 2024.

of the last high points uh of 20 2024.

of the last high points uh of 20 2024. But that's an implied license, right?

But that's an implied license, right?

But that's an implied license, right? Where he says go out and do this thing,

Where he says go out and do this thing,

Where he says go out and do this thing, you know, or if you know if you just

you know, or if you know if you just

you know, or if you know if you just release a beat on Soundcloud and

release a beat on Soundcloud and

release a beat on Soundcloud and presumably other folks are going to go

presumably other folks are going to go

presumably other folks are going to go back and and add things on top of it.

back and and add things on top of it.

back and and add things on top of it. This actually came out weirdly in a case

This actually came out weirdly in a case

This actually came out weirdly in a case around tattoos. My recollection of it

around tattoos. My recollection of it

around tattoos. My recollection of it was that an NBA player appeared in an

was that an NBA player appeared in an

was that an NBA player appeared in an NBA 2K game complete with tattoos and

NBA 2K game complete with tattoos and

NBA 2K game complete with tattoos and the tattoo artist sued and said, "That's

the tattoo artist sued and said, "That's

the tattoo artist sued and said, "That's my design. You can't reproduce it

my design. You can't reproduce it

my design. You can't reproduce it because I have a copyright on the

because I have a copyright on the

because I have a copyright on the design." And I don't recall if it

design." And I don't recall if it

design." And I don't recall if it actually made it into the court fight.

actually made it into the court fight.

actually made it into the court fight. But one of the common lines of thought

But one of the common lines of thought

But one of the common lines of thought among the copyright nerd set was that

among the copyright nerd set was that

among the copyright nerd set was that when you put a tattoo on someone's body,

when you put a tattoo on someone's body,

when you put a tattoo on someone's body, you're giving them an implied license to

you're giving them an implied license to

you're giving them an implied license to display it out in the world because

display it out in the world because

display it out in the world because true. I guess

true. I guess

true. I guess you're putting your artwork somewhere

you're putting your artwork somewhere

you're putting your artwork somewhere visible for the whole world to see and

visible for the whole world to see and

visible for the whole world to see and it was broadcast on, you know, live

it was broadcast on, you know, live

it was broadcast on, you know, live games all the time. Like this thing's

games all the time. Like this thing's

games all the time. Like this thing's reproduced all the time. So yeah,

reproduced all the time. So yeah,

reproduced all the time. So yeah, there's an implied license when you put

there's an implied license when you put

there's an implied license when you put art on someone's body.

art on someone's body.

art on someone's body. The DMCI stuff I I feel like most

The DMCI stuff I I feel like most

The DMCI stuff I I feel like most creators learn about it through having

creators learn about it through having

creators learn about it through having their content taken down. And it seems

their content taken down. And it seems

their content taken down. And it seems like it's been really abused by these

like it's been really abused by these

like it's been really abused by these big companies. Like I don't know, you

big companies. Like I don't know, you

big companies. Like I don't know, you included a Disney clip or some Warner

included a Disney clip or some Warner

included a Disney clip or some Warner Brothers material that you were reacting

Brothers material that you were reacting

Brothers material that you were reacting to and it was sort of immediately

to and it was sort of immediately

to and it was sort of immediately removed. Now we're seeing it seems like

removed. Now we're seeing it seems like

removed. Now we're seeing it seems like content creators themselves sort of

content creators themselves sort of

content creators themselves sort of enact copyright claims on each other.

enact copyright claims on each other.

enact copyright claims on each other. Have we seen anything like this before?

Have we seen anything like this before?

Have we seen anything like this before? Not that I am aware of, but with the

Not that I am aware of, but with the

Not that I am aware of, but with the caveat that I don't really follow

caveat that I don't really follow

caveat that I don't really follow YouTuber communities very closely. We

YouTuber communities very closely. We

YouTuber communities very closely. We have seen obviously instances of you

have seen obviously instances of you

have seen obviously instances of you know the sort of joke is that the DMCA

know the sort of joke is that the DMCA

know the sort of joke is that the DMCA is a keep my name out of your mouth

is a keep my name out of your mouth

is a keep my name out of your mouth cause of action. We have seen it a lot

cause of action. We have seen it a lot

cause of action. We have seen it a lot to take down criticism that is like very

to take down criticism that is like very

to take down criticism that is like very very various copyright claims. So,

very various copyright claims. So,

very various copyright claims. So, YouTuber Lindsay Ellis kind of was on

YouTuber Lindsay Ellis kind of was on

YouTuber Lindsay Ellis kind of was on the receiving end of this famously when

the receiving end of this famously when

the receiving end of this famously when she was actually commenting on a

she was actually commenting on a

she was actually commenting on a different copyright lawsuit that was a

different copyright lawsuit that was a

different copyright lawsuit that was a debate about who owned quote unquote the

debate about who owned quote unquote the

debate about who owned quote unquote the concept of the Omegaverse trope in

concept of the Omegaverse trope in

concept of the Omegaverse trope in fanfiction. So, there was a a lawsuit

fanfiction. So, there was a a lawsuit

fanfiction. So, there was a a lawsuit between two creators. One of them

between two creators. One of them

between two creators. One of them claimed that really she had the rights

claimed that really she had the rights

claimed that really she had the rights to this Omegaverse trope. Lindsay Ellis

to this Omegaverse trope. Lindsay Ellis

to this Omegaverse trope. Lindsay Ellis came in and and you know included clips

came in and and you know included clips

came in and and you know included clips of her reading from the book, but you

of her reading from the book, but you

of her reading from the book, but you know she she makes very substantially

know she she makes very substantially

know she she makes very substantially long YouTube videos and these were a

long YouTube videos and these were a

long YouTube videos and these were a small part of it and mostly she was just

small part of it and mostly she was just

small part of it and mostly she was just poking at the concept that anybody was

poking at the concept that anybody was

poking at the concept that anybody was fighting about this and then she got a

fighting about this and then she got a

fighting about this and then she got a takedown notice from the author whose

takedown notice from the author whose

takedown notice from the author whose you know argument she was poking at and

you know argument she was poking at and

you know argument she was poking at and then she got to do another YouTube video

then she got to do another YouTube video

then she got to do another YouTube video about how she had gotten DMCAD for

about how she had gotten DMCAD for

about how she had gotten DMCAD for criticizing someone else. So it really

criticizing someone else. So it really

criticizing someone else. So it really does become kind of a snake eating its

does become kind of a snake eating its

does become kind of a snake eating its own tail. And really any any kind of

own tail. And really any any kind of

own tail. And really any any kind of legal mechanism that allows somebody

legal mechanism that allows somebody

legal mechanism that allows somebody without the intervention of a court to

without the intervention of a court to

without the intervention of a court to get something off the internet is is

get something off the internet is is

get something off the internet is is invariably going to be used for the same

invariably going to be used for the same

invariably going to be used for the same thing, which is somebody said something

thing, which is somebody said something

thing, which is somebody said something I don't like and I want it gone.

I don't like and I want it gone.

I don't like and I want it gone. Well, that's why I want to kind of dig

Well, that's why I want to kind of dig

Well, that's why I want to kind of dig into that a little bit more because I

into that a little bit more because I

into that a little bit more because I feel like a lot of people online in

feel like a lot of people online in

feel like a lot of people online in light of all these YouTuber things have

light of all these YouTuber things have

light of all these YouTuber things have said this is not about free speech and

said this is not about free speech and

said this is not about free speech and this is not about free expression. And

this is not about free expression. And

this is not about free expression. And it seems like most copyright, if not a

it seems like most copyright, if not a

it seems like most copyright, if not a lot, certainly a huge amount of it,

lot, certainly a huge amount of it,

lot, certainly a huge amount of it, right, is about speech and expression

right, is about speech and expression

right, is about speech and expression and like you said that you posted

and like you said that you posted

and like you said that you posted something that I don't like or you

something that I don't like or you

something that I don't like or you posted criticism or political commentary

posted criticism or political commentary

posted criticism or political commentary that I don't like. So can you talk a

that I don't like. So can you talk a

that I don't like. So can you talk a little bit just about that and sort of

little bit just about that and sort of

little bit just about that and sort of like how this stuff can be weaponized to

like how this stuff can be weaponized to

like how this stuff can be weaponized to silence specific speech or political

silence specific speech or political

silence specific speech or political views, things like that? Sure. So the

views, things like that? Sure. So the

views, things like that? Sure. So the extremely lawyer answer to that is that

extremely lawyer answer to that is that

extremely lawyer answer to that is that copyright is really in tension with the

first amendment, right? Because

first amendment, right? Because copyright is fundamentally a way of

restricting speech and specifically it

restricting speech and specifically it says you cannot replicate exactly the

says you cannot replicate exactly the

says you cannot replicate exactly the speech of another person under these

speech of another person under these

speech of another person under these circumstances. That obviously creates

circumstances. That obviously creates

circumstances. That obviously creates some issues. Fair use is often referred

some issues. Fair use is often referred

some issues. Fair use is often referred to as the safety valve that lets

to as the safety valve that lets

to as the safety valve that lets copyright and the first amendment

coexist. And so fair use essentially

coexist. And so fair use essentially says well there are certain kinds of

says well there are certain kinds of

says well there are certain kinds of direct quotation that we actually think

direct quotation that we actually think

direct quotation that we actually think are okay either for strictly legal

are okay either for strictly legal

are okay either for strictly legal reasons or historical or cultural

reasons or historical or cultural

reasons or historical or cultural reasons. So Americans love their parody.

reasons. So Americans love their parody.

reasons. So Americans love their parody. They really need the ability to make fun

They really need the ability to make fun

They really need the ability to make fun of elected officials. For example, if

of elected officials. For example, if

of elected officials. For example, if you tried to take, you know, the Daily

you tried to take, you know, the Daily

you tried to take, you know, the Daily Show or sort of our satire news programs

Show or sort of our satire news programs

Show or sort of our satire news programs away from people, there would be a

away from people, there would be a

away from people, there would be a revolution. And so copyright has to

revolution. And so copyright has to

revolution. And so copyright has to allow for these kinds of criticism,

allow for these kinds of criticism,

allow for these kinds of criticism, commentary, often news reporting. You

commentary, often news reporting. You

commentary, often news reporting. You know, we'll have to be able to quote

know, we'll have to be able to quote

know, we'll have to be able to quote people directly. And so that's how we

people directly. And so that's how we

people directly. And so that's how we tried to square that circle. Now, in

tried to square that circle. Now, in

tried to square that circle. Now, in practice, a lot of this comes down to

practice, a lot of this comes down to

practice, a lot of this comes down to whether a judge does a sniff test on it

whether a judge does a sniff test on it

whether a judge does a sniff test on it and thinks, "I think this seems valid or

and thinks, "I think this seems valid or

and thinks, "I think this seems valid or I don't think this seems valid." And a

I don't think this seems valid." And a

I don't think this seems valid." And a lot of cases, it's do I think this

lot of cases, it's do I think this

lot of cases, it's do I think this party's a jerk or do I think this other

party's a jerk or do I think this other

party's a jerk or do I think this other party's the jerk? And so, you've had

party's the jerk? And so, you've had

party's the jerk? And so, you've had some some personalities losing copyright

some some personalities losing copyright

some some personalities losing copyright cases sort of based on the just the

cases sort of based on the just the

cases sort of based on the just the force of, you know, the gut feeling that

force of, you know, the gut feeling that

force of, you know, the gut feeling that we may not be able to articulate it, but

we may not be able to articulate it, but

we may not be able to articulate it, but we really don't like what they did here.

we really don't like what they did here.

we really don't like what they did here. Yeah. I saw somebody posting yesterday,

Yeah. I saw somebody posting yesterday,

Yeah. I saw somebody posting yesterday, some YouTuber fan that was like, you

some YouTuber fan that was like, you

some YouTuber fan that was like, you know, reminder, judges are people. Like

know, reminder, judges are people. Like

know, reminder, judges are people. Like these are human beings making these

these are human beings making these

these are human beings making these judgment. These are not just like AI

judgment. These are not just like AI

judgment. These are not just like AI algorithms that you know follow the law

algorithms that you know follow the law

algorithms that you know follow the law to the letter. I mean they do follow the

to the letter. I mean they do follow the

to the letter. I mean they do follow the law but you know there is judgment

law but you know there is judgment

law but you know there is judgment involved in being a judge and I feel

involved in being a judge and I feel

involved in being a judge and I feel like it'll be interesting to see how

like it'll be interesting to see how

like it'll be interesting to see how these cases play out. I feel like the

these cases play out. I feel like the

these cases play out. I feel like the legal system, especially around speech,

legal system, especially around speech,

legal system, especially around speech, is often weaponized where it's really

is often weaponized where it's really

is often weaponized where it's really just I mean, I'm a journalist, so I've

just I mean, I'm a journalist, so I've

just I mean, I'm a journalist, so I've been sued for defamation before very

been sued for defamation before very

been sued for defamation before very frivolously where they know that they're

frivolously where they know that they're

frivolously where they know that they're going to lose, but the goal is to kind

going to lose, but the goal is to kind

going to lose, but the goal is to kind of drain your money, re, you know, smear

of drain your money, re, you know, smear

of drain your money, re, you know, smear you, attack the New York Times or

you, attack the New York Times or

you, attack the New York Times or wherever I was working, Washington Post.

wherever I was working, Washington Post.

wherever I was working, Washington Post. So, I guess I'm wondering in some cases,

So, I guess I'm wondering in some cases,

So, I guess I'm wondering in some cases, have you ever seen copyright lawsuits be

have you ever seen copyright lawsuits be

have you ever seen copyright lawsuits be used just to sort of punish someone

used just to sort of punish someone

used just to sort of punish someone where it's like you're going to have to

where it's like you're going to have to

where it's like you're going to have to take the legal resources now to defend

take the legal resources now to defend

take the legal resources now to defend yourself? And that in itself is a

yourself? And that in itself is a

yourself? And that in itself is a deterrent to speech.

deterrent to speech.

deterrent to speech. Yeah, for sure. Copyright lawsuits are

Yeah, for sure. Copyright lawsuits are

Yeah, for sure. Copyright lawsuits are ludicrously expensive. It is a very

ludicrously expensive. It is a very

ludicrously expensive. It is a very intricate, you know, set of law. It's

intricate, you know, set of law. It's

intricate, you know, set of law. It's deeply arcane. And I say this as someone

deeply arcane. And I say this as someone

deeply arcane. And I say this as someone who spends her 40 hours a week thinking

who spends her 40 hours a week thinking

who spends her 40 hours a week thinking about it. It is it is masochism. But the

about it. It is it is masochism. But the

about it. It is it is masochism. But the reality is that things like fair use in

reality is that things like fair use in

reality is that things like fair use in particular, the way it's structured are

particular, the way it's structured are

particular, the way it's structured are you only can definitively know if

you only can definitively know if

you only can definitively know if something is a fair use once you get in

something is a fair use once you get in

something is a fair use once you get in front of a judge and the judge makes

front of a judge and the judge makes

front of a judge and the judge makes that call. And so we actually see

that call. And so we actually see

that call. And so we actually see copyright being used for, you know, not

just silencing speech, but trying to

just silencing speech, but trying to carry the weight of a lot of things that

carry the weight of a lot of things that

carry the weight of a lot of things that it was not designed to do. And so we end

it was not designed to do. And so we end

it was not designed to do. And so we end up dealing with copyright law when we're

up dealing with copyright law when we're

up dealing with copyright law when we're talking about everything from making

talking about everything from making

talking about everything from making books accessible to the blind all the

books accessible to the blind all the

books accessible to the blind all the way down to being able to fix your

way down to being able to fix your

way down to being able to fix your tractor all the way to you said

tractor all the way to you said

tractor all the way to you said something on YouTube that I don't like.

something on YouTube that I don't like.

something on YouTube that I don't like. And the actual test for things like fair

And the actual test for things like fair

And the actual test for things like fair use are wobbly. You know, it's a

use are wobbly. You know, it's a

use are wobbly. You know, it's a four-factor test. The only way to be

four-factor test. The only way to be

four-factor test. The only way to be sure though that something is a fair use

sure though that something is a fair use

sure though that something is a fair use is if you're following more or less

is if you're following more or less

is if you're following more or less exactly the pattern that has happened in

exactly the pattern that has happened in

exactly the pattern that has happened in a case that has happened before. You

a case that has happened before. You

a case that has happened before. You know, a lot of these sort of frivolous

know, a lot of these sort of frivolous

know, a lot of these sort of frivolous DMCA takedowns because they're frivolous

DMCA takedowns because they're frivolous

DMCA takedowns because they're frivolous tend not to make it all the way to

tend not to make it all the way to

tend not to make it all the way to court. Defamation still seems to be the

court. Defamation still seems to be the

court. Defamation still seems to be the weapon of choice in those cases, but it

weapon of choice in those cases, but it

weapon of choice in those cases, but it is a really kind of interesting

is a really kind of interesting

is a really kind of interesting crossover point with things like SLAP

crossover point with things like SLAP

crossover point with things like SLAP lawsuits, these strategic lawsuits

lawsuits, these strategic lawsuits

lawsuits, these strategic lawsuits against public participation. They're

against public participation. They're

against public participation. They're complicated. They're huge. They're

complicated. They're huge. They're

complicated. They're huge. They're extremely frightening to be on the

extremely frightening to be on the

extremely frightening to be on the receiving end of damages for copyright

receiving end of damages for copyright

receiving end of damages for copyright infringement. The statutory damages are

infringement. The statutory damages are

infringement. The statutory damages are $150,000 per infringement. So, you can

$150,000 per infringement. So, you can

$150,000 per infringement. So, you can stack up very quickly when you run into

stack up very quickly when you run into

stack up very quickly when you run into these things.

these things.

these things. Yeah, it's terrifying. I mean, I started

Yeah, it's terrifying. I mean, I started

Yeah, it's terrifying. I mean, I started as a blogger and I remember this was a

as a blogger and I remember this was a

as a blogger and I remember this was a conversation even back when I started

conversation even back when I started

conversation even back when I started blogging because people, you know, you

blogging because people, you know, you

blogging because people, you know, you would take certain parts of articles and

would take certain parts of articles and

would take certain parts of articles and repost them and there was always this

repost them and there was always this

repost them and there was always this concern of like, well, is that news

concern of like, well, is that news

concern of like, well, is that news organization am I adding enough

organization am I adding enough

organization am I adding enough commentary that this news organization

commentary that this news organization

commentary that this news organization is not going to come for me somehow? You

is not going to come for me somehow? You

is not going to come for me somehow? You mentioned the anti-SLAP protection. Can

mentioned the anti-SLAP protection. Can

mentioned the anti-SLAP protection. Can you explain for people that don't know

you explain for people that don't know

you explain for people that don't know what anti-SLAP does, how does it

what anti-SLAP does, how does it

what anti-SLAP does, how does it function, and has it ever been used as a

function, and has it ever been used as a

function, and has it ever been used as a defense in a copyright suit?

defense in a copyright suit?

defense in a copyright suit? So, SLAP is an acronym. It stands for

So, SLAP is an acronym. It stands for

So, SLAP is an acronym. It stands for selective lawsuit against public

selective lawsuit against public

selective lawsuit against public participation. And the idea is this is

participation. And the idea is this is

participation. And the idea is this is the sort of fancy legal term for

the sort of fancy legal term for

the sort of fancy legal term for nuisance lawsuits that are designed to

nuisance lawsuits that are designed to

nuisance lawsuits that are designed to get people to shut up. And so, we see

get people to shut up. And so, we see

get people to shut up. And so, we see these a lot with defamation lawsuits in

these a lot with defamation lawsuits in

these a lot with defamation lawsuits in particular. There are things called

particular. There are things called

particular. There are things called anti-slap statutes. They usually exist

anti-slap statutes. They usually exist

anti-slap statutes. They usually exist from state to state. So some states have

from state to state. So some states have

from state to state. So some states have them and some do not. Some of them are

them and some do not. Some of them are

them and some do not. Some of them are stronger than others. But the sort of

stronger than others. But the sort of

stronger than others. But the sort of essence of an anti-slap law is that it

essence of an anti-slap law is that it

essence of an anti-slap law is that it allows for an earlier off-ramp where if

allows for an earlier off-ramp where if

allows for an earlier off-ramp where if you are commenting on something that is

you are commenting on something that is

you are commenting on something that is sort of a matter of public interest and

sort of a matter of public interest and

sort of a matter of public interest and this is speaking very generally because

this is speaking very generally because

this is speaking very generally because again everyone every state has their own

again everyone every state has their own

again everyone every state has their own or some states have their own that if

or some states have their own that if

or some states have their own that if really this is a lawsuit that is just

really this is a lawsuit that is just

really this is a lawsuit that is just designed to shut you up then there's an

designed to shut you up then there's an

designed to shut you up then there's an early offramp so that you don't have to

early offramp so that you don't have to

early offramp so that you don't have to go through motions and discovery and all

go through motions and discovery and all

go through motions and discovery and all the added expense of having to go

the added expense of having to go

the added expense of having to go through these lawsuits. Texas has

through these lawsuits. Texas has

through these lawsuits. Texas has actually one of the strongest anti-SLAP

actually one of the strongest anti-SLAP

actually one of the strongest anti-SLAP provisions in the country, which is I

provisions in the country, which is I

provisions in the country, which is I feel like kind of surprising to a lot of

feel like kind of surprising to a lot of

feel like kind of surprising to a lot of folks. It was definitely a surprise to

folks. It was definitely a surprise to

folks. It was definitely a surprise to me. No shade to Texas, but I did not

me. No shade to Texas, but I did not

me. No shade to Texas, but I did not expect that. California's got a pretty

expect that. California's got a pretty

expect that. California's got a pretty strong one as well. I know New York and

strong one as well. I know New York and

strong one as well. I know New York and Virginia have them of sort of mixed

Virginia have them of sort of mixed

Virginia have them of sort of mixed success. And there's been kind of talk

success. And there's been kind of talk

success. And there's been kind of talk for years about whether we need a

for years about whether we need a

for years about whether we need a federal anti-slap statute.

federal anti-slap statute.

federal anti-slap statute. I know Ron Widen was trying to introduce

I know Ron Widen was trying to introduce

I know Ron Widen was trying to introduce I think it's it's in committee in

I think it's it's in committee in

I think it's it's in committee in Congress. It's called like the Free

Congress. It's called like the Free

Congress. It's called like the Free Speech Act or something, but it has not

Speech Act or something, but it has not

Speech Act or something, but it has not made it anywhere. I yeah, I'm not

made it anywhere. I yeah, I'm not

made it anywhere. I yeah, I'm not hopeful with this this Congress and this

hopeful with this this Congress and this

hopeful with this this Congress and this administration, which is a big fan of

administration, which is a big fan of

administration, which is a big fan of using lawsuits against critics. Not not

using lawsuits against critics. Not not

using lawsuits against critics. Not not super hopeful that this would go

super hopeful that this would go

super hopeful that this would go anywhere this time.

anywhere this time.

anywhere this time. Have you ever seen a successful sort of

Have you ever seen a successful sort of

Have you ever seen a successful sort of anti-Slap claim in terms of copyright

anti-Slap claim in terms of copyright

anti-Slap claim in terms of copyright law?

law?

law? I have not actually. Again, they tend to

I have not actually. Again, they tend to

I have not actually. Again, they tend to come up more in defamation, but I have

come up more in defamation, but I have

come up more in defamation, but I have not seen anti-SLAP used in the copyright

not seen anti-SLAP used in the copyright

not seen anti-SLAP used in the copyright context. the copyright cases that tend

context. the copyright cases that tend

context. the copyright cases that tend to get litigated for longer and tend to,

to get litigated for longer and tend to,

to get litigated for longer and tend to, you know, like sort of make their way up

you know, like sort of make their way up

you know, like sort of make their way up to circuit courts tend to be more

to circuit courts tend to be more

to circuit courts tend to be more sympathetic cases, frankly. And so

sympathetic cases, frankly. And so

sympathetic cases, frankly. And so there's a lot more of a trail in that.

there's a lot more of a trail in that.

there's a lot more of a trail in that. So there was a famous case, Google v.

So there was a famous case, Google v.

So there was a famous case, Google v. Garcia, which had to do with a woman who

Garcia, which had to do with a woman who

Garcia, which had to do with a woman who essentially answered a casting call. It

essentially answered a casting call. It

essentially answered a casting call. It was sort of it might have been like even

was sort of it might have been like even

was sort of it might have been like even a want ad on Craigslist looking for

a want ad on Craigslist looking for

a want ad on Craigslist looking for actors to star in a historical period

actors to star in a historical period

actors to star in a historical period piece. Then she showed up and she said a

piece. Then she showed up and she said a

piece. Then she showed up and she said a couple of lines and you know kind of

couple of lines and you know kind of

couple of lines and you know kind of went about her day and then the movie

went about her day and then the movie

went about her day and then the movie showed up on YouTube and it was

showed up on YouTube and it was

showed up on YouTube and it was essentially an anti-Muslim screed and

essentially an anti-Muslim screed and

essentially an anti-Muslim screed and they had overdubbed her voice so that

they had overdubbed her voice so that

they had overdubbed her voice so that she was saying something about the

she was saying something about the

she was saying something about the prophet Muhammad and she got death

prophet Muhammad and she got death

prophet Muhammad and she got death threats for having been in this and she

threats for having been in this and she

threats for having been in this and she did not know and so they attempted to

did not know and so they attempted to

did not know and so they attempted to use the DMCA to take down this thing

use the DMCA to take down this thing

use the DMCA to take down this thing saying I was in it. I have a copyright

saying I was in it. I have a copyright

saying I was in it. I have a copyright in my performance and I didn't consent

in my performance and I didn't consent

in my performance and I didn't consent to this being up there. Frankly, it was

to this being up there. Frankly, it was

to this being up there. Frankly, it was a terrible situation. But copyright was

a terrible situation. But copyright was

a terrible situation. But copyright was not not the route to get that to happen.

not not the route to get that to happen.

not not the route to get that to happen. And you know, we ended up I believe it

And you know, we ended up I believe it

And you know, we ended up I believe it was at the Ninth Circuit where they

was at the Ninth Circuit where they

was at the Ninth Circuit where they finally said like this sucks, but this

finally said like this sucks, but this

finally said like this sucks, but this is not the cause of action you need to

is not the cause of action you need to

is not the cause of action you need to use to deal with this. You know, so we

use to deal with this. You know, so we

use to deal with this. You know, so we tend to see it more in situations like

tend to see it more in situations like

tend to see it more in situations like that, but I am not aware of a situation

that, but I am not aware of a situation

that, but I am not aware of a situation where copyright and anti-SLAP have

where copyright and anti-SLAP have

where copyright and anti-SLAP have really collided. And that's partly

really collided. And that's partly

really collided. And that's partly because it's a federal case, so it

because it's a federal case, so it

because it's a federal case, so it always goes through federal courts and

always goes through federal courts and

always goes through federal courts and anti-SLAP are state level. There's

anti-SLAP are state level. There's

anti-SLAP are state level. There's actually an open question about whether

actually an open question about whether

actually an open question about whether or not state anti-slap can apply in

or not state anti-slap can apply in

or not state anti-slap can apply in federal court. I think the answer is

federal court. I think the answer is

federal court. I think the answer is different in different circuit courts.

different in different circuit courts.

different in different circuit courts. So, it depends on where you live. It's a

So, it depends on where you live. It's a

So, it depends on where you live. It's a whole complicated morass. You know,

whole complicated morass. You know,

whole complicated morass. You know, lawyers keep themselves employed.

lawyers keep themselves employed.

lawyers keep themselves employed. Another reason we need federal Andy's

Another reason we need federal Andy's

Another reason we need federal Andy's lab, how would a content creator know

lab, how would a content creator know

lab, how would a content creator know what's fair use? I mean, how are they

what's fair use? I mean, how are they

what's fair use? I mean, how are they supposed to determine when they're

supposed to determine when they're

supposed to determine when they're uploading something, especially if

uploading something, especially if

uploading something, especially if they're slightly altering it and

they're slightly altering it and

they're slightly altering it and thinking, "Oh, well, this counts as

thinking, "Oh, well, this counts as

thinking, "Oh, well, this counts as parody or this counts as, you know,

parody or this counts as, you know,

parody or this counts as, you know, valid commentary." like how are they

valid commentary." like how are they

valid commentary." like how are they supposed to make those determinations?

supposed to make those determinations?

supposed to make those determinations? It's a hard call and frankly a lot of

It's a hard call and frankly a lot of

It's a hard call and frankly a lot of lawyers have a hard time doing it.

lawyers have a hard time doing it.

lawyers have a hard time doing it. That's why we have to settle it in the

That's why we have to settle it in the

That's why we have to settle it in the courts. As a general rule though, things

courts. As a general rule though, things

courts. As a general rule though, things that are criticism or commentary are

that are criticism or commentary are

that are criticism or commentary are considered to be more strong fair use

considered to be more strong fair use

considered to be more strong fair use cases than others. And the more

cases than others. And the more

cases than others. And the more criticism and the more commentary that

criticism and the more commentary that

criticism and the more commentary that you inject usually the safer you are.

you inject usually the safer you are.

you inject usually the safer you are. Things like parody, which unfortunately

Things like parody, which unfortunately

Things like parody, which unfortunately has a very specific legal meaning, are

has a very specific legal meaning, are

has a very specific legal meaning, are considered to be sort of the

considered to be sort of the

considered to be sort of the quintessential fair use that fair use is

quintessential fair use that fair use is

quintessential fair use that fair use is designed to protect. But as a practical

designed to protect. But as a practical

designed to protect. But as a practical matter, yeah, a lot of creators are kind

matter, yeah, a lot of creators are kind

matter, yeah, a lot of creators are kind of left rolling the dice on whether or

of left rolling the dice on whether or

of left rolling the dice on whether or not something is fair use. And if you do

not something is fair use. And if you do

not something is fair use. And if you do find your work taken down, in a lot of

find your work taken down, in a lot of

find your work taken down, in a lot of cases, you have the option to file a

cases, you have the option to file a

cases, you have the option to file a counter notice, which says, "Actually, I

counter notice, which says, "Actually, I

counter notice, which says, "Actually, I think this work is fine, and I wanted to

think this work is fine, and I wanted to

think this work is fine, and I wanted to go back online." But as a practical

go back online." But as a practical

go back online." But as a practical matter, those are kind of terrifying to

matter, those are kind of terrifying to

matter, those are kind of terrifying to file. They usually have lots of all caps

file. They usually have lots of all caps

file. They usually have lots of all caps print on the bottom of them saying the

print on the bottom of them saying the

print on the bottom of them saying the next step after this is a lawsuit if the

next step after this is a lawsuit if the

next step after this is a lawsuit if the person who issued the takedown notice

person who issued the takedown notice

person who issued the takedown notice really wants to fight it. And a lot of

really wants to fight it. And a lot of

really wants to fight it. And a lot of folks get deterred and that's even if

folks get deterred and that's even if

folks get deterred and that's even if they have the option to file a putback

they have the option to file a putback

they have the option to file a putback notice. So places like Twitch, for

notice. So places like Twitch, for

notice. So places like Twitch, for example, doesn't have any mechanism for

example, doesn't have any mechanism for

example, doesn't have any mechanism for putbacks in a lot of cases. You can

putbacks in a lot of cases. You can

putbacks in a lot of cases. You can appeal a decision, but there's no DMCA

appeal a decision, but there's no DMCA

appeal a decision, but there's no DMCA counter notice that's really baked into

counter notice that's really baked into

counter notice that's really baked into the system. And so it's this perfect

the system. And so it's this perfect

the system. And so it's this perfect storm of, you know, platforms feel like

storm of, you know, platforms feel like

storm of, you know, platforms feel like they have to take stuff down, but

they have to take stuff down, but

they have to take stuff down, but there's no penalties for them not

there's no penalties for them not

there's no penalties for them not putting it back and creators are, you

putting it back and creators are, you

putting it back and creators are, you know, I think understandably a little

know, I think understandably a little

know, I think understandably a little bit skittish about fighting these

bit skittish about fighting these

bit skittish about fighting these things.

things.

things. You mentioned fair use earlier and these

You mentioned fair use earlier and these

You mentioned fair use earlier and these sort of four qualifications. Can you

sort of four qualifications. Can you

sort of four qualifications. Can you walk me through what those four are?

walk me through what those four are?

walk me through what those four are? Yeah, so it's a four-factor test to

Yeah, so it's a four-factor test to

Yeah, so it's a four-factor test to actually make sure that it's fair use.

actually make sure that it's fair use.

actually make sure that it's fair use. So the first one is the purpose and

So the first one is the purpose and

So the first one is the purpose and character of the use, which includes

character of the use, which includes

character of the use, which includes whether it's commercial or whether it's

whether it's commercial or whether it's

whether it's commercial or whether it's nonprofit. This has been this is often

nonprofit. This has been this is often

nonprofit. This has been this is often called the transformiveness prong. How

called the transformiveness prong. How

called the transformiveness prong. How much are you transforming the work from

much are you transforming the work from

much are you transforming the work from what it was originally to the new use?

what it was originally to the new use?

what it was originally to the new use? This is the subject of tons of debate.

This is the subject of tons of debate.

This is the subject of tons of debate. The Supreme Court weighed in on it

The Supreme Court weighed in on it

The Supreme Court weighed in on it recently and kind of shook up everything

recently and kind of shook up everything

recently and kind of shook up everything in that first factor. So that one that

in that first factor. So that one that

in that first factor. So that one that one is sort of widely acknowledged to be

one is sort of widely acknowledged to be

one is sort of widely acknowledged to be messy. The second question is the nature

messy. The second question is the nature

messy. The second question is the nature of the copyrighted work. So nonfiction

of the copyrighted work. So nonfiction

of the copyrighted work. So nonfiction because non-fiction is essentially like

because non-fiction is essentially like

because non-fiction is essentially like depends on restating facts and facts are

depends on restating facts and facts are

depends on restating facts and facts are not protected by copyright law.

not protected by copyright law.

not protected by copyright law. Non-fiction tends to get thinner

Non-fiction tends to get thinner

Non-fiction tends to get thinner copyright protection. So it gets a

little less deference towards protecting

little less deference towards protecting it because again if it's facts you can't

it because again if it's facts you can't

it because again if it's facts you can't protect those. The third factor is the

protect those. The third factor is the

protect those. The third factor is the amount and substantiality of the portion

amount and substantiality of the portion

amount and substantiality of the portion used in relation to the copyrighted work

used in relation to the copyrighted work

used in relation to the copyrighted work as a whole. So did you take the whole

as a whole. So did you take the whole

as a whole. So did you take the whole thing or did you just take a snippet?

thing or did you just take a snippet?

thing or did you just take a snippet? And the fourth is the effect of the use

And the fourth is the effect of the use

And the fourth is the effect of the use on the potential market for or value of

on the potential market for or value of

on the potential market for or value of the copyrighted work. And this is what

the copyrighted work. And this is what

the copyrighted work. And this is what people tend to think about when they

people tend to think about when they

people tend to think about when they think about whether something is fair

think about whether something is fair

think about whether something is fair use. You know the question is am I

use. You know the question is am I

use. You know the question is am I making money off of it? and if I'm

making money off of it? and if I'm

making money off of it? and if I'm making money off of it, it's not a fair

making money off of it, it's not a fair

making money off of it, it's not a fair use. Which is not true. One of the most

use. Which is not true. One of the most

use. Which is not true. One of the most famous fair use cases and the one from

famous fair use cases and the one from

famous fair use cases and the one from which a lot of modern fair use thinking

which a lot of modern fair use thinking

which a lot of modern fair use thinking flows had to do with two live crew, a

flows had to do with two live crew, a

flows had to do with two live crew, a hip-hop group doing a song called Pretty

hip-hop group doing a song called Pretty

hip-hop group doing a song called Pretty Woman which sampled the Roy Orbison song

Woman which sampled the Roy Orbison song

Woman which sampled the Roy Orbison song Pretty Woman and was a parody of it in a

Pretty Woman and was a parody of it in a

Pretty Woman and was a parody of it in a lot of ways and they made money off that

lot of ways and they made money off that

lot of ways and they made money off that and that is considered to be one of the

and that is considered to be one of the

and that is considered to be one of the quintessential fair uses. So you take

quintessential fair uses. So you take

quintessential fair uses. So you take all of these four factors together and

all of these four factors together and

all of these four factors together and you sort of weigh them little scales and

you sort of weigh them little scales and

you sort of weigh them little scales and you hem and you haw and then the judge

you hem and you haw and then the judge

you hem and you haw and then the judge has to kind of sum up all of the factors

has to kind of sum up all of the factors

has to kind of sum up all of the factors and make a decision on it. But again,

and make a decision on it. But again,

and make a decision on it. But again, you know, a lot of these things are like

you know, a lot of these things are like

you know, a lot of these things are like the transformiveness prong like well

the transformiveness prong like well

the transformiveness prong like well what does that really mean? Everybody's

what does that really mean? Everybody's

what does that really mean? Everybody's going to have a slightly different iter

going to have a slightly different iter

going to have a slightly different iter like view on what is transformative and

like view on what is transformative and

like view on what is transformative and what is not. Judges are going to think

what is not. Judges are going to think

what is not. Judges are going to think certain things are more creative or less

certain things are more creative or less

certain things are more creative or less creative often depending on their biases

creative often depending on their biases

creative often depending on their biases about certain kinds of creative works.

about certain kinds of creative works.

about certain kinds of creative works. And so it gets really messy and it ends

And so it gets really messy and it ends

And so it gets really messy and it ends up being not only fact specific but

up being not only fact specific but

up being not only fact specific but sometimes judge specific about how you

sometimes judge specific about how you

sometimes judge specific about how you want to argue these things.

want to argue these things.

want to argue these things. I think it's so interesting too just

I think it's so interesting too just

I think it's so interesting too just like the norms that have been set

like the norms that have been set

like the norms that have been set especially as live streaming has taken

especially as live streaming has taken

especially as live streaming has taken off and more and more people I mean IRL

off and more and more people I mean IRL

off and more and more people I mean IRL streams but these reacting streams on

streams but these reacting streams on

streams but these reacting streams on Twitch are increasingly popular and

Twitch are increasingly popular and

Twitch are increasingly popular and YouTube where people sort of just react

YouTube where people sort of just react

YouTube where people sort of just react to other people's content or commentate

to other people's content or commentate

to other people's content or commentate on it. And I guess I'm wondering like

on it. And I guess I'm wondering like

on it. And I guess I'm wondering like how have you seen copyright law affect

how have you seen copyright law affect

how have you seen copyright law affect these fan communities and this like

these fan communities and this like

these fan communities and this like remix and reaction culture?

remix and reaction culture?

remix and reaction culture? Oh yeah, absolutely. Copyright law and

Oh yeah, absolutely. Copyright law and

Oh yeah, absolutely. Copyright law and especially fan communities and what's

especially fan communities and what's

especially fan communities and what's called we call it transformative fandom

called we call it transformative fandom

called we call it transformative fandom now. There's a long history there. And

now. There's a long history there. And

now. There's a long history there. And so one of actually the biggest

so one of actually the biggest

so one of actually the biggest organizations working on this is the

organizations working on this is the

organizations working on this is the organization for transformative works

organization for transformative works

organization for transformative works and they run archive of our own which is

and they run archive of our own which is

and they run archive of our own which is a huge fanfiction archive. And I get

a huge fanfiction archive. And I get

a huge fanfiction archive. And I get this question a lot. I do a lot of talks

this question a lot. I do a lot of talks

this question a lot. I do a lot of talks at like Dragon Con and other fan

at like Dragon Con and other fan

at like Dragon Con and other fan communities and I got a lot of questions

communities and I got a lot of questions

communities and I got a lot of questions about like, well, is is my fanfic a fair

about like, well, is is my fanfic a fair

about like, well, is is my fanfic a fair use? What if I make cosplay? What if I

use? What if I make cosplay? What if I

use? What if I make cosplay? What if I sell cosplay accessories? What if I sell

sell cosplay accessories? What if I sell

sell cosplay accessories? What if I sell fan art? And the answer is almost

fan art? And the answer is almost

fan art? And the answer is almost uniformly that there is a difference

uniformly that there is a difference

uniformly that there is a difference between your legal risk and your

between your legal risk and your

between your legal risk and your practical risk. That a lot of companies

practical risk. That a lot of companies

practical risk. That a lot of companies have decided either that they're going

have decided either that they're going

have decided either that they're going to crack down on use of their products.

to crack down on use of their products.

to crack down on use of their products. even if they don't win, the bringing the

even if they don't win, the bringing the

even if they don't win, the bringing the lawsuit is going to be usually enough to

lawsuit is going to be usually enough to

lawsuit is going to be usually enough to get somebody to stop doing it or that

get somebody to stop doing it or that

get somebody to stop doing it or that they benefit from having this active fan

they benefit from having this active fan

they benefit from having this active fan community and active fan engagement and

community and active fan engagement and

community and active fan engagement and that they're just going to let it go.

that they're just going to let it go.

that they're just going to let it go. And sometimes they draw lines sort of

And sometimes they draw lines sort of

And sometimes they draw lines sort of informally around what they are and are

informally around what they are and are

informally around what they are and are not comfortable with. So, you know, not

not comfortable with. So, you know, not

not comfortable with. So, you know, not in the US, but in Japan, there was an

in the US, but in Japan, there was an

in the US, but in Japan, there was an interesting case where, you know,

interesting case where, you know,

interesting case where, you know, somebody actually got sent to jail for

somebody actually got sent to jail for

somebody actually got sent to jail for making a fan comic. It was a Pokémon fan

making a fan comic. It was a Pokémon fan

making a fan comic. It was a Pokémon fan comic and it was pornographic. So, that

comic and it was pornographic. So, that

comic and it was pornographic. So, that was the line. there's sort of an

was the line. there's sort of an

was the line. there's sort of an unofficial blacklist of, you know, you

unofficial blacklist of, you know, you

unofficial blacklist of, you know, you don't do fan comics of Disney properties

don't do fan comics of Disney properties

don't do fan comics of Disney properties and Nintendo properties and Pokemon

and Nintendo properties and Pokemon

and Nintendo properties and Pokemon properties. And so, a lot of it is this

properties. And so, a lot of it is this

properties. And so, a lot of it is this sort of social norm really more than the

sort of social norm really more than the

sort of social norm really more than the law. And, you know, fanfic has not been

law. And, you know, fanfic has not been

law. And, you know, fanfic has not been litigated mercifully cuz I'm not sure

litigated mercifully cuz I'm not sure

litigated mercifully cuz I'm not sure anybody wants to stick their neck out

anybody wants to stick their neck out

anybody wants to stick their neck out enough to get that risk. But, yeah, it

enough to get that risk. But, yeah, it

enough to get that risk. But, yeah, it it is a constant threat. And I think the

it is a constant threat. And I think the

it is a constant threat. And I think the fact that people don't understand

fact that people don't understand

fact that people don't understand fair use and I say that most lawyers,

fair use and I say that most lawyers,

fair use and I say that most lawyers, most copyright lawyers won't pretend to

most copyright lawyers won't pretend to

most copyright lawyers won't pretend to understand fair use. We're all sort of,

understand fair use. We're all sort of,

understand fair use. We're all sort of, you know, reading tea leaves, but it's

you know, reading tea leaves, but it's

you know, reading tea leaves, but it's scary. And I think people, you know, try

scary. And I think people, you know, try

scary. And I think people, you know, try to rely on these soft norms to change

to rely on these soft norms to change

to rely on these soft norms to change their behavior rather than what the law

their behavior rather than what the law

their behavior rather than what the law actually says.

actually says.

actually says. Talking about Pokemon and Disney and

Talking about Pokemon and Disney and

Talking about Pokemon and Disney and some of these other companies, I think

some of these other companies, I think

some of these other companies, I think it's so interesting. I think of I've

it's so interesting. I think of I've

it's so interesting. I think of I've done a bunch of reporting on Skippy

done a bunch of reporting on Skippy

done a bunch of reporting on Skippy Toilet. I don't know if you're familiar.

Toilet. I don't know if you're familiar.

Toilet. I don't know if you're familiar. My eight-year-old has has educated me

My eight-year-old has has educated me

My eight-year-old has has educated me about Skippy Toilet. I, you know, I

about Skippy Toilet. I, you know, I

about Skippy Toilet. I, you know, I interviewed the guy who works with the

interviewed the guy who works with the

interviewed the guy who works with the creator and owns all the IP for Skippy

creator and owns all the IP for Skippy

creator and owns all the IP for Skippy Toilet and they monetize Skippy Toilet

Toilet and they monetize Skippy Toilet

Toilet and they monetize Skippy Toilet and sell the merch, develop these games

and sell the merch, develop these games

and sell the merch, develop these games and all these things. And he said

and all these things. And he said

and all these things. And he said actually that they don't really pursue

actually that they don't really pursue

actually that they don't really pursue copyright claims. They get really

excited when they they've always

excited when they they've always actually really encouraged people to

actually really encouraged people to

actually really encouraged people to make their own versions of Skippy Toilet

make their own versions of Skippy Toilet

make their own versions of Skippy Toilet because it's sort of the way the

because it's sort of the way the

because it's sort of the way the internet works. Like the more people are

internet works. Like the more people are

internet works. Like the more people are talking about something online, the

talking about something online, the

talking about something online, the bigger the like brand becomes. And I I

bigger the like brand becomes. And I I

bigger the like brand becomes. And I I actually do know one creator who did

actually do know one creator who did

actually do know one creator who did make Skippy Toilet porn. I don't know if

make Skippy Toilet porn. I don't know if

make Skippy Toilet porn. I don't know if it's quite on their radar yet, so I

it's quite on their radar yet, so I

it's quite on their radar yet, so I don't know if that's been litigated, but

don't know if that's been litigated, but

don't know if that's been litigated, but I think overwhelmingly he was saying it

I think overwhelmingly he was saying it

I think overwhelmingly he was saying it was actually kids that were fans of

was actually kids that were fans of

was actually kids that were fans of Skippy Toilet and wanted to make their

Skippy Toilet and wanted to make their

Skippy Toilet and wanted to make their own stuff. So, I yeah, I think it's kind

own stuff. So, I yeah, I think it's kind

own stuff. So, I yeah, I think it's kind of interesting these different

of interesting these different

of interesting these different perceptions. I would say Skippy Toilet I

perceptions. I would say Skippy Toilet I

perceptions. I would say Skippy Toilet I mean it's being made into a Michael Bay

mean it's being made into a Michael Bay

mean it's being made into a Michael Bay movie now. It's about to be, you know,

movie now. It's about to be, you know,

movie now. It's about to be, you know, it's like sort of this modern IP versus,

it's like sort of this modern IP versus,

it's like sort of this modern IP versus, you know, maybe the old Disney way of

you know, maybe the old Disney way of

you know, maybe the old Disney way of like cracking down and trying to control

like cracking down and trying to control

like cracking down and trying to control things.

things.

things. Yeah. And so much of it is really just

Yeah. And so much of it is really just

Yeah. And so much of it is really just dependent on the creators and the

dependent on the creators and the

dependent on the creators and the context in which they kind of came into

context in which they kind of came into

context in which they kind of came into creating. So it's very interesting to

creating. So it's very interesting to

creating. So it's very interesting to watch. You know, I deal a lot with the

watch. You know, I deal a lot with the

watch. You know, I deal a lot with the music industry which has like very

music industry which has like very

music industry which has like very specific ideas about what needs to be

specific ideas about what needs to be

specific ideas about what needs to be licensed and those very specific ideas

licensed and those very specific ideas

licensed and those very specific ideas are everything needs to be licensed, you

are everything needs to be licensed, you

are everything needs to be licensed, you know, and that went through an

know, and that went through an

know, and that went through an adjustment period when hip-hop and

adjustment period when hip-hop and

adjustment period when hip-hop and sampling culture came up and the lawyers

sampling culture came up and the lawyers

sampling culture came up and the lawyers won and now you have to, you know, pay

won and now you have to, you know, pay

won and now you have to, you know, pay for every sample even if it's a fair

for every sample even if it's a fair

for every sample even if it's a fair use. Contrast that with video games

use. Contrast that with video games

use. Contrast that with video games where you have companies like Valve and

where you have companies like Valve and

where you have companies like Valve and Valve is sort of famous for really

Valve is sort of famous for really

Valve is sort of famous for really enjoying mods of their games and

enjoying mods of their games and

enjoying mods of their games and sometimes hiring the people who make the

sometimes hiring the people who make the

sometimes hiring the people who make the mods for their games because the folks

mods for their games because the folks

mods for their games because the folks who formed Valve came out of a modding

who formed Valve came out of a modding

who formed Valve came out of a modding community and so that's where their

community and so that's where their

community and so that's where their priorities are. And then you have a lot

priorities are. And then you have a lot

priorities are. And then you have a lot of these digital native creators who are

of these digital native creators who are

of these digital native creators who are just really into the fact that there are

just really into the fact that there are

just really into the fact that there are fan communities. You know, on the other

fan communities. You know, on the other

fan communities. You know, on the other end of the spectrum, there are a lot of

end of the spectrum, there are a lot of

end of the spectrum, there are a lot of print authors who have very well

print authors who have very well

print authors who have very well publicized, not great fees about

publicized, not great fees about

publicized, not great fees about fanfiction, which actually in a lot of

fanfiction, which actually in a lot of

fanfiction, which actually in a lot of cases can you can trace back to one

cases can you can trace back to one

cases can you can trace back to one particular instance where a famous

particular instance where a famous

particular instance where a famous fantasy writer used to actually

fantasy writer used to actually

fantasy writer used to actually collaborate with her fans. So, she would

collaborate with her fans. So, she would

collaborate with her fans. So, she would release essentially a zen of or like,

release essentially a zen of or like,

release essentially a zen of or like, you know, short story compilations and

you know, short story compilations and

you know, short story compilations and invite other people to write in the

invite other people to write in the

invite other people to write in the world. you know, you can see old Star

world. you know, you can see old Star

world. you know, you can see old Star Trek fanfiction that was bound and

Trek fanfiction that was bound and

Trek fanfiction that was bound and printed and sold and had forwards by

printed and sold and had forwards by

printed and sold and had forwards by Gene Rodenberry who was like, "This is

Gene Rodenberry who was like, "This is

Gene Rodenberry who was like, "This is great. I love that people love this."

great. I love that people love this."

great. I love that people love this." So, this author, you know, collaborated

So, this author, you know, collaborated

So, this author, you know, collaborated and would would, you know, often give

and would would, you know, often give

and would would, you know, often give credit to some of her fans when she

credit to some of her fans when she

credit to some of her fans when she published a new mainstream novel, she

published a new mainstream novel, she

published a new mainstream novel, she would say, you know, with like an

would say, you know, with like an

would say, you know, with like an additional creative credit to insert

additional creative credit to insert

additional creative credit to insert fanfic author here. That came to a head

fanfic author here. That came to a head

fanfic author here. That came to a head when there was a dispute with one of the

when there was a dispute with one of the

when there was a dispute with one of the fanfic authors who then claimed that the

fanfic authors who then claimed that the

fanfic authors who then claimed that the sort of canon author had stolen

sort of canon author had stolen

sort of canon author had stolen essentially the plot of one of the

essentially the plot of one of the

essentially the plot of one of the fanfics that she had written and then

fanfics that she had written and then

fanfics that she had written and then threatened to sue the canon author over

threatened to sue the canon author over

threatened to sue the canon author over it. And so that was when the sort of

it. And so that was when the sort of

it. And so that was when the sort of dant was reached of authors do not read

dant was reached of authors do not read

dant was reached of authors do not read fanfic of their own work because that is

fanfic of their own work because that is

fanfic of their own work because that is a legal exposure for them. And so yeah,

a legal exposure for them. And so yeah,

a legal exposure for them. And so yeah, it's this like very complicated

it's this like very complicated

it's this like very complicated relationship. Star Wars has been trying

relationship. Star Wars has been trying

relationship. Star Wars has been trying to navigate this for like 40 years at

to navigate this for like 40 years at

to navigate this for like 40 years at this point and they're still kind of

this point and they're still kind of

this point and they're still kind of working on it.

working on it.

working on it. I'm thinking too of these reaction

I'm thinking too of these reaction

I'm thinking too of these reaction channels where I feel like traditionally

channels where I feel like traditionally

channels where I feel like traditionally people have wanted other creators to

people have wanted other creators to

people have wanted other creators to react to their content because it sort

react to their content because it sort

react to their content because it sort of elevates the original content. I had

of elevates the original content. I had

of elevates the original content. I had a video recently that some big content

a video recently that some big content

a video recently that some big content creators like essentially just watched

creators like essentially just watched

creators like essentially just watched on their stream, but it made people

on their stream, but it made people

on their stream, but it made people interested in my channel and actually

interested in my channel and actually

interested in my channel and actually really boosted the views. And so I feel

really boosted the views. And so I feel

really boosted the views. And so I feel like there's this culture of like

like there's this culture of like

like there's this culture of like creators being like, "Please react to my

creators being like, "Please react to my

creators being like, "Please react to my work. Like, please let me know what you

work. Like, please let me know what you

work. Like, please let me know what you think, you know, please talk about it on

think, you know, please talk about it on

think, you know, please talk about it on your stream or whatever, you know, just

your stream or whatever, you know, just

your stream or whatever, you know, just to sort of like get the word out there."

to sort of like get the word out there."

to sort of like get the word out there." In this case, with this big YouTuber

In this case, with this big YouTuber

In this case, with this big YouTuber suing the smaller YouTubers, you know,

suing the smaller YouTubers, you know,

suing the smaller YouTubers, you know, he actually has encouraged people to

he actually has encouraged people to

he actually has encouraged people to react to his work, but now he's saying,

react to his work, but now he's saying,

react to his work, but now he's saying, "Hey, you stole my views. You stole my

"Hey, you stole my views. You stole my

"Hey, you stole my views. You stole my views and you stole my money because you

views and you stole my money because you

views and you stole my money because you sort of didn't, like we're talking

sort of didn't, like we're talking

sort of didn't, like we're talking about, it wasn't transformative enough."

about, it wasn't transformative enough."

about, it wasn't transformative enough." And I'm wondering what effects that

And I'm wondering what effects that

And I'm wondering what effects that might have on like commentary culture

might have on like commentary culture

might have on like commentary culture just generally because I feel like how

just generally because I feel like how

just generally because I feel like how can you know how much commentary you're

can you know how much commentary you're

can you know how much commentary you're going to have on a piece of content

going to have on a piece of content

going to have on a piece of content until you react to it. I mean, maybe

until you react to it. I mean, maybe

until you react to it. I mean, maybe you'd have to sort of pre-react ahead of

you'd have to sort of pre-react ahead of

you'd have to sort of pre-react ahead of time and sort of plan out commentary,

time and sort of plan out commentary,

time and sort of plan out commentary, make sure you have enough to say. It

make sure you have enough to say. It

make sure you have enough to say. It seems kind of sticky. Yeah. And it's

seems kind of sticky. Yeah. And it's

seems kind of sticky. Yeah. And it's definitely doubly sticky when the

definitely doubly sticky when the

definitely doubly sticky when the reaction is being done as a live stream

reaction is being done as a live stream

reaction is being done as a live stream and you may not know in advance exactly

and you may not know in advance exactly

and you may not know in advance exactly or you know as apparently one of the

or you know as apparently one of the

or you know as apparently one of the streamers had to get up and take a

streamers had to get up and take a

streamers had to get up and take a bathroom break and apparently that was

bathroom break and apparently that was

bathroom break and apparently that was offensive because she left the stream

offensive because she left the stream

offensive because she left the stream running while the chair was empty. Yeah.

running while the chair was empty. Yeah.

running while the chair was empty. Yeah. I mean it's hard to know right. There

I mean it's hard to know right. There

I mean it's hard to know right. There may not be a lot of there there. You

may not be a lot of there there. You

may not be a lot of there there. You know I always sort of use the example of

know I always sort of use the example of

know I always sort of use the example of on one end of reaction videos you have

on one end of reaction videos you have

on one end of reaction videos you have and I I confess I really enjoy these as

and I I confess I really enjoy these as

and I I confess I really enjoy these as an aging millennial. younger Gen Z

an aging millennial. younger Gen Z

an aging millennial. younger Gen Z reacting to whatever pop hits were, you

reacting to whatever pop hits were, you

reacting to whatever pop hits were, you know, popular when I was in high school

know, popular when I was in high school

know, popular when I was in high school where it's just, you know, a guy in the

where it's just, you know, a guy in the

where it's just, you know, a guy in the corner kind of boopping along to

corner kind of boopping along to

corner kind of boopping along to whatever. I still enjoy those. And on

whatever. I still enjoy those. And on

whatever. I still enjoy those. And on the other end, you have Dustin Pointer,

the other end, you have Dustin Pointer,

the other end, you have Dustin Pointer, who's the red flag, green flag guy, who

who's the red flag, green flag guy, who

who's the red flag, green flag guy, who will take videos of people in their

will take videos of people in their

will take videos of people in their relationship dynamics and race across

relationship dynamics and race across

relationship dynamics and race across the field with a giant red or green flag

the field with a giant red or green flag

the field with a giant red or green flag and sort of dunk on people as necessary.

and sort of dunk on people as necessary.

and sort of dunk on people as necessary. It's hard to predict exactly how folks

It's hard to predict exactly how folks

It's hard to predict exactly how folks are going to react to this. But I think

are going to react to this. But I think

are going to react to this. But I think the sort of takeaways from it from a a

the sort of takeaways from it from a a

the sort of takeaways from it from a a lawyer perspective is more commentary is

lawyer perspective is more commentary is

lawyer perspective is more commentary is better. Maybe pre-record it, maybe live

better. Maybe pre-record it, maybe live

better. Maybe pre-record it, maybe live reacting, isn't it? And also, you know,

reacting, isn't it? And also, you know,

reacting, isn't it? And also, you know, something maybe to avoid is saying

something maybe to avoid is saying

something maybe to avoid is saying things like watch my reaction video as

things like watch my reaction video as

things like watch my reaction video as the ethical way to not give ad revenue

the ethical way to not give ad revenue

the ethical way to not give ad revenue to the original, which does actually

to the original, which does actually

to the original, which does actually start running into copyright law

start running into copyright law

start running into copyright law rationale around fair use. you know,

rationale around fair use. you know,

rationale around fair use. you know, when you've accidentally touched

when you've accidentally touched

when you've accidentally touched directly on the the fourth factor of

directly on the the fourth factor of

directly on the the fourth factor of fair use, you know, maybe you want to

fair use, you know, maybe you want to

fair use, you know, maybe you want to avoid doing that.

avoid doing that.

avoid doing that. I mean, I think of this actually with

I mean, I think of this actually with

I mean, I think of this actually with cable news where I and it's not like I'm

cable news where I and it's not like I'm

cable news where I and it's not like I'm trying to starve CNN of revenue, but I

trying to starve CNN of revenue, but I

trying to starve CNN of revenue, but I don't pay for cable news. And I feel

don't pay for cable news. And I feel

don't pay for cable news. And I feel like I increasingly watch it through

like I increasingly watch it through

like I increasingly watch it through Twitch streams or live streams. Like

Twitch streams or live streams. Like

Twitch streams or live streams. Like when something happens, I turn into

when something happens, I turn into

when something happens, I turn into these YouTubers that are essentially

these YouTubers that are essentially

these YouTubers that are essentially just streaming CNN or streaming cable

just streaming CNN or streaming cable

just streaming CNN or streaming cable news. And I'm interested how news

news. And I'm interested how news

news. And I'm interested how news companies will handle that or if they

companies will handle that or if they

companies will handle that or if they will crack down. I mean, in some ways

will crack down. I mean, in some ways

will crack down. I mean, in some ways it's amplifying their coverage and

it's amplifying their coverage and

it's amplifying their coverage and bringing them to a new audience of young

bringing them to a new audience of young

bringing them to a new audience of young people. Yeah. I don't know. I feel like

people. Yeah. I don't know. I feel like

people. Yeah. I don't know. I feel like there are different mindsets even I've

there are different mindsets even I've

there are different mindsets even I've spoken to people within these cable news

spoken to people within these cable news

spoken to people within these cable news organizations of like whether or not

organizations of like whether or not

organizations of like whether or not this is a good thing and whether they

this is a good thing and whether they

this is a good thing and whether they should be happy or crack down on, you

should be happy or crack down on, you

should be happy or crack down on, you know, people streaming content.

know, people streaming content.

know, people streaming content. That's got the added complication of

That's got the added complication of

That's got the added complication of it's the news, it is necessarily

it's the news, it is necessarily

it's the news, it is necessarily newsworthy. I mean, we can argue about

newsworthy. I mean, we can argue about

newsworthy. I mean, we can argue about whether a lot of things that are on the

whether a lot of things that are on the

whether a lot of things that are on the news are actually newsworthy or not, but

news are actually newsworthy or not, but

news are actually newsworthy or not, but I don't think they want to be arguing

I don't think they want to be arguing

I don't think they want to be arguing that what they're airing is not not

that what they're airing is not not

that what they're airing is not not worth airing. And again going back to

worth airing. And again going back to

worth airing. And again going back to earlier, copyright law and fair use is

earlier, copyright law and fair use is

earlier, copyright law and fair use is just as culturally determined in a lot

just as culturally determined in a lot

just as culturally determined in a lot of cases as it is, you know, in terms of

of cases as it is, you know, in terms of

of cases as it is, you know, in terms of what we prioritize and what judges think

what we prioritize and what judges think

what we prioritize and what judges think should really be allowed. And the

should really be allowed. And the

should really be allowed. And the ability to respond to newsworthy events

ability to respond to newsworthy events

ability to respond to newsworthy events is like a big part of that. And so one

is like a big part of that. And so one

is like a big part of that. And so one of the like classic fair use cases had

of the like classic fair use cases had

of the like classic fair use cases had to do with exerting a political

to do with exerting a political

to do with exerting a political biography to respond to it. Yeah. I

biography to respond to it. Yeah. I

biography to respond to it. Yeah. I mean, this these are things that are

mean, this these are things that are

mean, this these are things that are important and judges are just generally

important and judges are just generally

important and judges are just generally going to be a little more favorable

going to be a little more favorable

going to be a little more favorable looking on, you know, people sharing

looking on, you know, people sharing

looking on, you know, people sharing their important or not important views

their important or not important views

their important or not important views about the news of the day rather than if

about the news of the day rather than if

about the news of the day rather than if they're doing a live reaction to, I

they're doing a live reaction to, I

they're doing a live reaction to, I don't know, the the new live action Lilo

don't know, the the new live action Lilo

don't know, the the new live action Lilo and Stitch. It's probably going to get a

and Stitch. It's probably going to get a

and Stitch. It's probably going to get a little bit less difference.

little bit less difference.

little bit less difference. I worked at a news organization too one

I worked at a news organization too one

I worked at a news organization too one time where they were trying to get

time where they were trying to get

time where they were trying to get content creators to react to our

content creators to react to our

content creators to react to our articles and content being like, "Please

articles and content being like, "Please

articles and content being like, "Please talk about us. We are still relevant."

talk about us. We are still relevant."

talk about us. We are still relevant." which I think is interesting too because

which I think is interesting too because

which I think is interesting too because yeah I mean it's newsworthy but I think

yeah I mean it's newsworthy but I think

yeah I mean it's newsworthy but I think they wanted even the evergreen content

they wanted even the evergreen content

they wanted even the evergreen content to just sort of like make it out there

to just sort of like make it out there

to just sort of like make it out there because the more people talking about it

because the more people talking about it

because the more people talking about it goes back to it like the more relevant

goes back to it like the more relevant

goes back to it like the more relevant and the more I guess yeah the more

and the more I guess yeah the more

and the more I guess yeah the more notable the story in terms of like this

notable the story in terms of like this

notable the story in terms of like this copyright stuff too. I mean I I wonder

if there are any sort of reforms in

if there are any sort of reforms in place to protect speech. You mentioned

place to protect speech. You mentioned

place to protect speech. You mentioned that a lot of the court decisions have

that a lot of the court decisions have

that a lot of the court decisions have actually sort of eroded protections for

actually sort of eroded protections for

actually sort of eroded protections for speech, but I don't know if there are

speech, but I don't know if there are

speech, but I don't know if there are any efforts that people can get involved

any efforts that people can get involved

any efforts that people can get involved with to protect speech. I mean I just

with to protect speech. I mean I just

with to protect speech. I mean I just feel like free speech online is being

feel like free speech online is being

feel like free speech online is being eroded so much and all over the place

eroded so much and all over the place

eroded so much and all over the place these days. Yeah, the attack is more or

these days. Yeah, the attack is more or

these days. Yeah, the attack is more or less constant and I will say a lot of it

less constant and I will say a lot of it

less constant and I will say a lot of it is that most of the industrial players

is that most of the industrial players

is that most of the industrial players frankly are, you know, their incentive

frankly are, you know, their incentive

frankly are, you know, their incentive if anything is to like limit the ability

if anything is to like limit the ability

if anything is to like limit the ability of folks to speak freely online. Not

of folks to speak freely online. Not

of folks to speak freely online. Not necessarily due to like maliciousness,

necessarily due to like maliciousness,

necessarily due to like maliciousness, but just because they want to cover

but just because they want to cover

but just because they want to cover themselves and their pocketbooks in a

themselves and their pocketbooks in a

themselves and their pocketbooks in a lot of cases, you know, and I think some

lot of cases, you know, and I think some

lot of cases, you know, and I think some of the threats right now are coming

of the threats right now are coming

of the threats right now are coming through things like AI legislation,

through things like AI legislation,

through things like AI legislation, specifically, you know, we're we're

specifically, you know, we're we're

specifically, you know, we're we're tracking bills. There's this bill called

tracking bills. There's this bill called

tracking bills. There's this bill called No Fakes, which is an attempt to, you

No Fakes, which is an attempt to, you

No Fakes, which is an attempt to, you know, create essentially create a

know, create essentially create a

know, create essentially create a licensing market for folks to license

licensing market for folks to license

licensing market for folks to license out their likeness, but it has a

out their likeness, but it has a

out their likeness, but it has a takedown and a stayown provision, which

takedown and a stayown provision, which

takedown and a stayown provision, which is like the DMCA on steroids in which

is like the DMCA on steroids in which

is like the DMCA on steroids in which you can claim that any video is a deep

you can claim that any video is a deep

you can claim that any video is a deep fake of you and it'll disappear and

fake of you and it'll disappear and

fake of you and it'll disappear and there's no way to get it put back.

there's no way to get it put back.

there's no way to get it put back. Technically, it there's a thing that

Technically, it there's a thing that

Technically, it there's a thing that says we are telling you right now, you

says we are telling you right now, you

says we are telling you right now, you cannot use this for fake claims that

cannot use this for fake claims that

cannot use this for fake claims that something is a deep fake. But this

something is a deep fake. But this

something is a deep fake. But this Oh, I'm sure that'll totally stop

Oh, I'm sure that'll totally stop

Oh, I'm sure that'll totally stop people.

people.

people. That'll definitely stop a lot of folks.

That'll definitely stop a lot of folks.

That'll definitely stop a lot of folks. And the only way to vindicate that is

And the only way to vindicate that is

And the only way to vindicate that is for the person whose content got taken

for the person whose content got taken

for the person whose content got taken down to sue the person who sent the

down to sue the person who sent the

down to sue the person who sent the note. And it's just it's it's a

note. And it's just it's it's a

note. And it's just it's it's a nightmare. But again, it's being written

nightmare. But again, it's being written

nightmare. But again, it's being written by industry. It's being written by the

by industry. It's being written by the

by industry. It's being written by the RIAA and negotiating against the motion

RIAA and negotiating against the motion

RIAA and negotiating against the motion picture industry. You know, actual

picture industry. You know, actual

picture industry. You know, actual speech concerns aren't at the table in a

speech concerns aren't at the table in a

speech concerns aren't at the table in a lot of cases. So I mean that's the

lot of cases. So I mean that's the

lot of cases. So I mean that's the problem is like a lot of speech stuff is

problem is like a lot of speech stuff is

problem is like a lot of speech stuff is just on the defensive sort of by nature

just on the defensive sort of by nature

just on the defensive sort of by nature and so you know definitely it's a big

and so you know definitely it's a big

and so you know definitely it's a big ask to ask anybody to follow more news

ask to ask anybody to follow more news

ask to ask anybody to follow more news nowadays but I think keeping an eye on

nowadays but I think keeping an eye on

nowadays but I think keeping an eye on AI related stuff in particular because

AI related stuff in particular because

AI related stuff in particular because that is the new hotness that everybody

that is the new hotness that everybody

that is the new hotness that everybody wants to talk about and everybody's kind

wants to talk about and everybody's kind

wants to talk about and everybody's kind of panicked about and the upshot is that

of panicked about and the upshot is that

of panicked about and the upshot is that in panic we sometimes get some really

in panic we sometimes get some really

in panic we sometimes get some really bad ideas through and you know just

bad ideas through and you know just

bad ideas through and you know just keeping a critical eye on that is going

keeping a critical eye on that is going

keeping a critical eye on that is going to be really important

to be really important

to be really important as somebody that's fought so

as somebody that's fought so

as somebody that's fought so aggressively against a lot of like I

aggressively against a lot of like I

aggressively against a lot of like I feel like before AI was social media and

feel like before AI was social media and

feel like before AI was social media and they were using social media to crack

they were using social media to crack

they were using social media to crack down on speech and I've talked about

down on speech and I've talked about

down on speech and I've talked about these like laws aimed at like protecting

these like laws aimed at like protecting

these like laws aimed at like protecting child influencers that are really just

child influencers that are really just

child influencers that are really just will censor local news footage or like

will censor local news footage or like

will censor local news footage or like things like the kids online safety act

things like the kids online safety act

things like the kids online safety act which I hate and think is bad but you

which I hate and think is bad but you

which I hate and think is bad but you know I feel like there was a moral panic

know I feel like there was a moral panic

know I feel like there was a moral panic around like social media and kids where

around like social media and kids where

around like social media and kids where there was a lot of really bad speech

there was a lot of really bad speech

there was a lot of really bad speech sort of restrictions on speech being

sort of restrictions on speech being

sort of restrictions on speech being placed because of this sort of panic and

placed because of this sort of panic and

placed because of this sort of panic and now I feel like it's significantly moved

now I feel like it's significantly moved

now I feel like it's significantly moved to AI like you said where I think a lot

to AI like you said where I think a lot

to AI like you said where I think a lot of people are rightfully concerned about

of people are rightfully concerned about

of people are rightfully concerned about AI in different ways but it's sort of

AI in different ways but it's sort of

AI in different ways but it's sort of being used as a pretense to to pass off.

being used as a pretense to to pass off.

being used as a pretense to to pass off. I I covered the Take It Down Act

I I covered the Take It Down Act

I I covered the Take It Down Act recently. I don't know if you're

recently. I don't know if you're

recently. I don't know if you're Oh, yeah. No, take it down was an

Oh, yeah. No, take it down was an

Oh, yeah. No, take it down was an interesting case and it's, you know, and

interesting case and it's, you know, and

interesting case and it's, you know, and this is the thing like right there are

this is the thing like right there are

this is the thing like right there are legitimately absolutely awful things

legitimately absolutely awful things

legitimately absolutely awful things that are happening and things people are

that are happening and things people are

that are happening and things people are using AI for legitimately awful like

using AI for legitimately awful like

using AI for legitimately awful like stomach churning reasons. The question

stomach churning reasons. The question

stomach churning reasons. The question is what problem exactly are we trying to

is what problem exactly are we trying to

is what problem exactly are we trying to solve? And I think when something like,

solve? And I think when something like,

solve? And I think when something like, you know, you have problems that

you know, you have problems that

you know, you have problems that grotesque that start coming up, people

grotesque that start coming up, people

grotesque that start coming up, people don't stop and try to define the limits

don't stop and try to define the limits

don't stop and try to define the limits of what you can solve all at once. And

of what you can solve all at once. And

of what you can solve all at once. And so, you know, this is we've seen

so, you know, this is we've seen

so, you know, this is we've seen copyright law sort of dragged out as

like this is going to be the last

like this is going to be the last bastion to stop artists being mass

bastion to stop artists being mass

bastion to stop artists being mass unemployed through and it's like whoa,

unemployed through and it's like whoa,

unemployed through and it's like whoa, copyright was not designed to carry

anything close to that weight, you And

anything close to that weight, you And so take it down was actually interesting

so take it down was actually interesting

so take it down was actually interesting because it was a like a profoundly

because it was a like a profoundly

because it was a like a profoundly flawed bill in a lot of ways but it at

flawed bill in a lot of ways but it at

flawed bill in a lot of ways but it at least it kind of scoped itself in a

least it kind of scoped itself in a

least it kind of scoped itself in a specific way saying we are trying to

specific way saying we are trying to

specific way saying we are trying to attack this specific problem.

attack this specific problem.

attack this specific problem. For people that don't know it's about

For people that don't know it's about

For people that don't know it's about sort of revenge like deep fake

sort of revenge like deep fake

sort of revenge like deep fake deep fake porn essentially it's

deep fake porn essentially it's

deep fake porn essentially it's non-consensual imitate imagery I think

non-consensual imitate imagery I think

non-consensual imitate imagery I think is is one of the terms used to refer to

is is one of the terms used to refer to

is is one of the terms used to refer to it.

it.

it. NCI

NCI

NCI NCI. Yeah. But things like no fakes are

NCI. Yeah. But things like no fakes are

NCI. Yeah. But things like no fakes are attempting to address the concerns of,

attempting to address the concerns of,

attempting to address the concerns of, you know, actors who I think are rightly

you know, actors who I think are rightly

you know, actors who I think are rightly worried that if they have to sign away

worried that if they have to sign away

worried that if they have to sign away their likenesses to studios, they're

their likenesses to studios, they're

their likenesses to studios, they're just going to be background. They're

just going to be background. They're

just going to be background. They're going to be CGI background actors and

going to be CGI background actors and

going to be CGI background actors and there goes, you know, most working actor

there goes, you know, most working actor

there goes, you know, most working actor gigs. Voice actors who are going to get

gigs. Voice actors who are going to get

gigs. Voice actors who are going to get paid to record 10 hours of dialogue for

paid to record 10 hours of dialogue for

paid to record 10 hours of dialogue for a video game and then AI is going to

a video game and then AI is going to

a video game and then AI is going to make another 90 hours for which they're

make another 90 hours for which they're

make another 90 hours for which they're not paid. a lot of like very legitimate

not paid. a lot of like very legitimate

not paid. a lot of like very legitimate concerns, but then also it's extended to

concerns, but then also it's extended to

concerns, but then also it's extended to everybody and I have a very different

everybody and I have a very different

everybody and I have a very different threat model than you have a different

threat model than you have a different

threat model than you have a different threat model than you know Matt Damon

threat model than you know Matt Damon

threat model than you know Matt Damon has a different threat model, Lady Gaga

has a different threat model, Lady Gaga

has a different threat model, Lady Gaga has a different threat model. You know,

has a different threat model. You know,

has a different threat model. You know, we're all concerned about very different

we're all concerned about very different

we're all concerned about very different things and like trying to address those

things and like trying to address those

things and like trying to address those things all at once is just going to

things all at once is just going to

things all at once is just going to unleash the floodgates of some really

unleash the floodgates of some really

unleash the floodgates of some really some really bad ideas. There's also this

some really bad ideas. There's also this

some really bad ideas. There's also this point in this YouTuber's lawsuit, I

point in this YouTuber's lawsuit, I

point in this YouTuber's lawsuit, I think, where he mentions like

think, where he mentions like

think, where he mentions like misinformation and what role does like

misinformation and what role does like

misinformation and what role does like misinformation play in copyright law.

misinformation play in copyright law.

misinformation play in copyright law. Yeah, it has nothing to do with

Yeah, it has nothing to do with

Yeah, it has nothing to do with copyright law. If anything, you know,

fictitious statements are creative and

fictitious statements are creative and those are going to be protected more by

those are going to be protected more by

those are going to be protected more by copyright law, but it is a weird example

of again copyright law being asked to

of again copyright law being asked to carry water that it was not designed to

carry water that it was not designed to

carry water that it was not designed to carry. Like copyright law is not an

carry. Like copyright law is not an

carry. Like copyright law is not an anti-misinformation

anti-misinformation

anti-misinformation statute. It's not designed to counter

statute. It's not designed to counter

statute. It's not designed to counter the spread of liel. Was not designed for

the spread of liel. Was not designed for

the spread of liel. Was not designed for that. And so it was an interesting it

that. And so it was an interesting it

that. And so it was an interesting it was an interesting choice to put that in

was an interesting choice to put that in

was an interesting choice to put that in there. I don't think a copyright lawyer

there. I don't think a copyright lawyer

there. I don't think a copyright lawyer would have put that in there expecting

would have put that in there expecting

would have put that in there expecting to get anything out of it. I think

to get anything out of it. I think

to get anything out of it. I think probably to the extent that it's in

probably to the extent that it's in

probably to the extent that it's in there. It's just because he wants it on

there. It's just because he wants it on

there. It's just because he wants it on the record that he thinks she was lying.

the record that he thinks she was lying.

the record that he thinks she was lying. So it's definitely not going to help his

So it's definitely not going to help his

So it's definitely not going to help his copyright case. I think it'll just be so

interesting to see how these lawsuits

interesting to see how these lawsuits ripple across the content creator

ripple across the content creator

ripple across the content creator community and the commentary community.

community and the commentary community.

community and the commentary community. And one thing that I know a lot of

And one thing that I know a lot of

And one thing that I know a lot of YouTubers and content creators have been

YouTubers and content creators have been

YouTubers and content creators have been aligned on is actually against copy

aligned on is actually against copy

aligned on is actually against copy striking. Copyright is sort of like the

striking. Copyright is sort of like the

striking. Copyright is sort of like the worst thing you can do is like copy

worst thing you can do is like copy

worst thing you can do is like copy strike someone because there's this idea

strike someone because there's this idea

strike someone because there's this idea of like hating the DMCA, hating these

of like hating the DMCA, hating these

of like hating the DMCA, hating these like copyright owners that try to get

like copyright owners that try to get

like copyright owners that try to get YouTube taken down. And now I think if

YouTube taken down. And now I think if

YouTube taken down. And now I think if we start to see bigger YouTubers

we start to see bigger YouTubers

we start to see bigger YouTubers attacking smaller YouTubers or smaller

attacking smaller YouTubers or smaller

attacking smaller YouTubers or smaller YouTubers attacking bigger YouTubers

YouTubers attacking bigger YouTubers

YouTubers attacking bigger YouTubers like using these copyright copyright

like using these copyright copyright

like using these copyright copyright law, I don't know. I just think it'll be

law, I don't know. I just think it'll be

law, I don't know. I just think it'll be a really interesting kind of potentially

a really interesting kind of potentially

a really interesting kind of potentially terrifying, you know, shock to the

terrifying, you know, shock to the

terrifying, you know, shock to the system. I don't think we've had creators

system. I don't think we've had creators

system. I don't think we've had creators kind of try to leverage this law against

kind of try to leverage this law against

kind of try to leverage this law against each other in this way before.

each other in this way before.

each other in this way before. Yeah, definitely not at this level of

Yeah, definitely not at this level of

Yeah, definitely not at this level of visibility, I don't think. But yeah,

visibility, I don't think. But yeah,

visibility, I don't think. But yeah, again, this is one of those things where

again, this is one of those things where

again, this is one of those things where fair use, it's like fandom communities.

fair use, it's like fandom communities.

fair use, it's like fandom communities. Fair use is wobbly and so social norms

Fair use is wobbly and so social norms

Fair use is wobbly and so social norms step in to fill the gaps essentially and

step in to fill the gaps essentially and

step in to fill the gaps essentially and they guide how people's behavior

they guide how people's behavior

they guide how people's behavior operates and I think you know as much as

operates and I think you know as much as

operates and I think you know as much as anything you know like you mentioned

anything you know like you mentioned

anything you know like you mentioned YouTubers really don't like the DMCA and

YouTubers really don't like the DMCA and

YouTubers really don't like the DMCA and it's very frowned upon to copy strike

it's very frowned upon to copy strike

it's very frowned upon to copy strike somebody and so there's a lot of you

somebody and so there's a lot of you

somebody and so there's a lot of you know the law doesn't exist in a vacuum

know the law doesn't exist in a vacuum

know the law doesn't exist in a vacuum right it is informed by how people act

right it is informed by how people act

right it is informed by how people act and there's frankly a lot of social

and there's frankly a lot of social

and there's frankly a lot of social pressure that keeps people from bringing

pressure that keeps people from bringing

pressure that keeps people from bringing suits even when they can Disney could

suits even when they can Disney could

suits even when they can Disney could crack down on everybody selling a

crack down on everybody selling a

crack down on everybody selling a Captain America shield at Dragon Con and

Captain America shield at Dragon Con and

Captain America shield at Dragon Con and they don't because the publicity is

they don't because the publicity is

they don't because the publicity is better than the money they get out of

better than the money they get out of

better than the money they get out of the lawsuit. You don't want to be the

the lawsuit. You don't want to be the

the lawsuit. You don't want to be the bad guy and you don't want to make your

bad guy and you don't want to make your

bad guy and you don't want to make your fans and your audience mad at you. So,

fans and your audience mad at you. So,

fans and your audience mad at you. So, we'll see if that holds up this time. I

we'll see if that holds up this time. I

we'll see if that holds up this time. I pity the judge that has to learn about,

pity the judge that has to learn about,

pity the judge that has to learn about, you know, the YouTube drama Twitch

you know, the YouTube drama Twitch

you know, the YouTube drama Twitch reaction community in terms of just like

reaction community in terms of just like

reaction community in terms of just like speech law and copyright and all this

speech law and copyright and all this

speech law and copyright and all this stuff. Like, how do you think people can

stuff. Like, how do you think people can

stuff. Like, how do you think people can best educate themselves on these issues?

best educate themselves on these issues?

best educate themselves on these issues? Where can people learn a little bit more

Where can people learn a little bit more

Where can people learn a little bit more about kind of these topics?

about kind of these topics?

about kind of these topics? I would say definitely follow folks. I

I would say definitely follow folks. I

I would say definitely follow folks. I mean, obviously selfishly, I think

mean, obviously selfishly, I think

mean, obviously selfishly, I think public knowledge does a lot of good

public knowledge does a lot of good

public knowledge does a lot of good stuff in copyright, but the Electronic

stuff in copyright, but the Electronic

stuff in copyright, but the Electronic Frontier Foundation, EFF, blogs and

Frontier Foundation, EFF, blogs and

Frontier Foundation, EFF, blogs and posts quite a bit about copyright law.

posts quite a bit about copyright law.

posts quite a bit about copyright law. They have been on this beat from the

They have been on this beat from the

They have been on this beat from the beginning and they're very smart and

beginning and they're very smart and

beginning and they're very smart and they do very fast reactions on these

they do very fast reactions on these

they do very fast reactions on these things and they will often do like, you

things and they will often do like, you

things and they will often do like, you know, creators know your rights type

know, creators know your rights type

know, creators know your rights type webinars and and outreach and things

webinars and and outreach and things

webinars and and outreach and things like that.

like that.

like that. Meredith, thank you so much for joining

Meredith, thank you so much for joining

Meredith, thank you so much for joining me today.

me today.

me today. Oh, thanks for having me. All right,

Oh, thanks for having me. All right,

Oh, thanks for having me. All right, that's it for this week's Free Speech

that's it for this week's Free Speech

that's it for this week's Free Speech Friday. You can watch full episodes of

Friday. You can watch full episodes of

Friday. You can watch full episodes of Free Speech Friday on my YouTube channel

Free Speech Friday on my YouTube channel

Free Speech Friday on my YouTube channel at Taylor Laoren. Also, don't forget to

at Taylor Laoren. Also, don't forget to

at Taylor Laoren. Also, don't forget to subscribe to my tech and online culture

subscribe to my tech and online culture

subscribe to my tech and online culture newsletter, usermag.co. That's

newsletter, usermag.co. That's

newsletter, usermag.co. That's usermag.co,

usermag.co,

usermag.co, where I write about all of this stuff

where I write about all of this stuff

where I write about all of this stuff and more. I'll be back next week with a

and more. I'll be back next week with a

and more. I'll be back next week with a brand new episode of Free Speech Friday.

brand new episode of Free Speech Friday.

brand new episode of Free Speech Friday. See you then.

Click on any text or timestamp to jump to that moment in the video

Most transcripts ready in under 5 seconds

One-Click Copy125+ LanguagesSearch ContentJump to Timestamps

Paste YouTube URL

Enter any YouTube video link to get the full transcript

Most transcripts ready in under 5 seconds

Get Our Chrome Extension

Get transcripts instantly without leaving YouTube. Install our Chrome extension for one-click access to any video's transcript directly on the watch page.

Add to Chrome — Free

Works with YouTube, Coursera, Udemy and more educational platforms

Get Instant Transcripts: Just Edit the Domain in Your Address Bar!

YouTube

←

→

↻

https://www.youtube.com/watch?v=UF8uR6Z6KLc

YoutubeToText

←

→

↻

https://youtubetotext.net/watch?v=UF8uR6Z6KLc

YouTube Transcript:How Copyright Lawsuits Kill Free Speech

Video Transcript

Paste YouTube URL

Transcript Extraction Form

Get Our Chrome Extension

Get Instant Transcripts: Just Edit the Domain in Your Address Bar!

YouTube Transcript:
How Copyright Lawsuits Kill Free Speech