December 8, 2013 | By corynne mcsherry

No More Downtime for Free Speech: EFF Helps People for the American Way Challenge DMCA Abuser

For several weeks now, former Navy chaplain and Colorado Assembly candidate Gordon Klingenschmitt has been on a campaign to shut down the YouTube account of People for the American Way's Right Wing Watch (“RWW”) project. RWW reports and comments on the political views of folks like Klingenschmitt, using their own words. As we all learned in Writing 101: show, don’t tell.

Klingenschmitt apparently doesn’t appreciate the criticism those clips engender, so he’s been using false copyright claims to get them taken down. Now, with help from EFF and Hogan Lovells, PFAW is fighting back, demanding that Klingenschmitt end his campaign.

Some background: RWW’s YouTube account has over 2,000 video clips, from a variety of sources, cataloguing statements by right-wing political and religious figures. These video clips are used by RWW in its blog, and also by journalists and other opinion makers, in order to expose what RWW sees as extremist rhetoric. Among those clips are several dozen excerpted from Klingenschmitt’s show, also hosted on YouTube, called Pray in Jesus’ Name.

In response, Klingenschmitt’s filed a series of Digital Millennium Copyright Act (“DMCA”) takedown notices with YouTube targeting those clips. Because YouTube has a policy of shutting down accounts after three takedown notices, Klingenschmitt’s bogus complaints caused RWW’s entire account to be taken offline - twice.

Why bogus? Because the videos are clearly protected fair uses. The clips are noncommercial and transformative. The clips are placed in a distinct news and editorial context, for entirely different purposes from those motivating the original work. As such, RWW’s work is precisely the type of use the fair use doctrine was designed to protect. RWW uses only short clips, no more than necessary for the purpose of facilitating public commentary. And, the clips do not harm any market for Klingenschmitt’s works. Finally, the RWW blog and YouTube channel serve the public interest by advancing political criticism and debate.

It appears that Klingenschmitt does not care much about legal niceties like fair use. He’s publicly bragged about the campaign, and made it abundantly clear that his goal is not legal but political. RWW has challenged every takedown notice, using YouTube’s counter-notification process, and Klingenschmitt has never taken the next step of actually backing up his bogus claim by filing a lawsuit against PFAW (which he has to do to keep the videos down after a counter-notice). Instead, he just sends more notices. 

As we have noted before, the “three strikes and you’re out” approach to DMCA notices taken by YouTube and other service providers is ripe for this kind of abuse. YouTube has made some improvements, but there’s much more service providers could do. (PFAW has a petition to YouYUbe asking them to change their policies; you can support it here).

In the meantime, however, Klingenschmitt is now on notice: RWW’s clips are lawful fair uses, and it’s time to stop claiming otherwise. Klingenschmitt has plenty of tools for challenging RWW’s reporting and commentary, beginning with his own show. After all, the best answer to speech you don’t like is more speech. But he needs to take the DMCA out of his toolkit, now.

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