Pro Tip: If You’re Suing YouTube And Asking For More Time Because The CEO Is Sick, Don’t Post A Highly Produced YouTube Video Attacking The Ruling & Lawyers
There are a bunch of moving parts involved in this case that I really wasn't planning on covering - but something quite amusing happened and I can't resist. The basics are fairly straightforward: there's an outfit named Business Casual" that makes videos, apparently sometimes discussing historical events and whatnot. One part of the videos is that they create parallax" images, in which they take apart old public domain photos and give them a sort of 3D feel (sometimes creating new images entirely). RT Arabic (the Arabic language wing of RT - i.e., Russia Today - owned by the state funded TV-Novosti) apparently used some snippets of these parallax images from a couple of Business Casual videos. Business Casual filed DMCA takedowns, causing the RT Arabic channel to get some copyright strikes, and even had the account briefly taken down, though it was then reinstated.
There are a bunch of nitty gritty details that aren't worth going into, but RT Arabic counternoticed the DMCA takedowns, claiming fair use (and without going into the details, in at least some of the cases, they seem to have a fairly credible fair use claim, but I wouldn't call it a slam dunk). Under the DMCA, once someone files a counternotice, YouTube will generally repost the videos (and remove the strikes) if the copyright holder doesn't sue within 10 days. Business Casual found a copyright lawyer and sued TV-Novosti for copyright infringement.
That's all normal enough. But, a month and a half later, the company also sued YouTube itself, arguing that YouTube directly infringed its copyrights as well. That seems like a questionable move for a whole variety of reasons.
The case against TV-Novosti has continued, with the judge basically not being impressed by the fair use arguments. I think a stronger fair use argument was there than the judge allowed, but as I noted, it's not a slam dunk and the ruling seems perfectly fine. For what it's worth, both sides then had their lawyers withdraw. Business Casual replaced its lawyer with Ron Coleman, who many, many years ago did some useful and impressive work on free speech, but went deep into Trump cultist territory and is now mostly known for filing nonsense, anti-speech, culture war bullshit. TV-Novosti appears to have replaced its lawyers with... no one? And decided to just start ignoring the case, leading Business Casual to seek a default judgment, which it seems likely to get. That's all fair enough.
The case against YouTube, as expected, went nowhere. The judge dismissed it pretty easily. Even if TV-Novosti was infringing, the idea that YouTube was a direct infringer is nonsense. Professor Eric Goldman had a writeup of the ruling back in March. There were some oddities in the ruling, but it was clearly correct on the law. Once again, after this ruling, the company's lawyer withdrew (suggesting a disagreement over strategy) and was replaced with Coleman.
Business Casual / Coleman then repeatedly asked the court for extensions in order to file an amended complaint. Coleman mentioned in some of these letters that the main reason for the extension request was because the health of the plaintiff's principal, Mr. Edson." The most recent such request came on August 16th, with Coleman noting:
The reason for this request, as well as its belated timing, is the deteriorating health of myclient.
Mr. Edson, Plaintiff's principal, suffers from severe bilateral tinnitus, a condition thatcauses extremely loud and constant ringing in the ears. He is in agonizing pain and cannot functionat this time. I expected to receive my client's feedback and approval on the reply submission at theend of last week, but he simply has been unable to operate.
Anyway, something else happened on August 16th.
That is, on August 16th, the same day his lawyer was telling the court that Edson cannot function at this time," Edson had posted a nearly two hour long, highly produced video on YouTube all about the case, complete with (I shit you not) a Vladimir Putin lookalike trying (poorly and inaccurately) to explain copyright law. Most of the video is a very healthy looking Edson, complete with very dramatic concerned looks, spewing a very passionate, but dubious, explanation of the case. If you wish to submit yourself to torture you can watch the whole video. I did. Edson makes a very emphatic case for his very, very misinformed beliefs about (1) copyright law (2) YouTube deliberately colluding with Russia and... some other nonsense, including that YouTube is not an American company" because it doesn't stand for American values." Almost everything in the video is, at best, extremely confused about the nature of copyright law. Multiple times while watching the video I had to mutter that's not how any of this works."
Just for example, at one point, he notes that he emailed YouTube execs directly, after his case was happening. YouTube execs, quite correctly, noted that since he was currently a party in a lawsuit against them, he had to only talk via their lawyers, and not try to communicate directly. That's, uh, kinda basic stuff - but he tries to suggest it's all an example of how evil Google is.
Also, he attacks the very correct argument that YouTube made as part of its response to his lawsuit: that his demand that they takedown entire channels, full of non-infringing works, raises serious 1st Amendment issues. It does. I mean, there's a whole big important Supreme Court case all about that fact. But Edson acts as if this is crazy talk. He's wrong.
He's also very confused about the reasoning behind YouTube's defense, which in part notes that under the DMCA it wants to see cases where there are credible fair use claims fully adjudicated before it recognizes someone as a repeat infringer. That's the correct stance. It's one that is protective of free speech (contrary to Edson's claims in the video that YouTube is somehow against free speech values), because it makes sure that the judicial system has determined if something is truly infringing before ordering the speech suppressed. (Not to mention that he's wrong about the appeals process and what it means for a case to be fully adjudicated, but that's a smaller point).
He also makes some pretty incendiary claims insulting the judge in the case, calling YouTube's lawyers pathological liars" with no regard for the truth." He also appears to call them evil" in a overly dramatic (and laughable) moment in which he goes from black-and-white to backlit color, and stands up from behind a desk while poorly dramatizing anger and saying evil will not prevail."
Anyway, I had seen the video before looking through the docket, and originally wasn't going to write anything about it, because the video is just so wrong about so much (though, of course, many of those watching it are taking it as accurate despite how misleading it is and how incorrect on the law it is). But then, in looking at the docket, I saw that the very same day that this two-hour, very highly produced video of Edson dramatically misrepresenting many of the key elements of his case, and standing up and screaming about how evil YouTube is and how he'll never back down... his lawyer was filing a request for a time extension insisting that Edson's health was so bad that he was unable to operate."
YouTube's lawyers noticed that too.
And, the very next day, they sent a note to the judge highlighting this, well, discrepancy.
This is the third straight time Plaintiff has claimed that its CEO, Alex Edson, has fallen illright around the time that a brief is due. See Dkts. 46, 51. While we would normally take therepresentations in Plaintiff's letter to the Court at face value, we were surprised to see thatyesterday - the same day as its belated request for an extension - Mr. Edson posted a lengthyvideo to his YouTube channel (available at https://youtu.be/4IaOeVgZ-wc) making a variety ofbaseless claims about this case and asserting conspiracy theories about YouTube. Mr. Edson,who does not appear in poor health, specifically targets Defendants' counsel by personallyridiculing them, accusing them of lying to the Court, identifying them by name, and postingtheir photographs (see, e.g., clips beginning at 27:45, https://youtu.be/4IaOeVgZ-wc?t=1665,and 1:43:00, https://youtu.be/4IaOeVgZ-wc?t=6180, where Mr. Edson states: If you guys arewondering how this possibly could have happened, and how a judge can get it so wrong, it'sbecause YouTube's lawyers are pathological liars. These people have no regard for the truth. Putsimply, YouTube has been successful in misleading the court.").
Although it is unclear when this footage was recorded, it was posted yesterday,suggesting Mr. Edson has likely been busy finalizing it over the last few days or weeks while hecould have been attending to the reply brief. We think it appropriate for the Court to consider this sequence of events in determining whether to retroactively allow Plaintiff additional timefor a reply brief that it failed to file according to the Court's deadline.
Just slightly after that was filed, the judge still granted the extension, though it's unclear if he had seen YouTube's letter by that time. Granting extensions is pretty standard practice here so it's not surprising that it was granted. But, still, it can't be a good look for Business Casual.
Meanwhile, Business Casual's strategy seems to be to try to turn this into a battle in the court of public opinion, rather than the court of law. The organization has been trying to whip up social media fury about all this without much luck. It's also been trying to get various politicians (like Ted Cruz and Josh Hawley) to pay attention and even called for the CIA and the State Dept. to investigate YouTube... because Business Casual is mad that YouTube applied its repeat infringer policy in a way that it doesn't like.
He's also trying to play up about how he's being shadow banned" and suppressed because the nearly two hour long rant isn't getting as many views as he wants. Basically none of his tweets are getting any pickup, but who knows sooner or later maybe one of the politicians (or Elon Musk!) who he's tweeting at will retweet him without understanding just how silly and legally deficient his argument is.