Fair Use and DMCA

Question

My project (EditVideoBot) is an automated 'Twitter bot' program that allows users to edit videos within Twitter (they can add music to the video, or their own text, etc). My first account I ran this project on was suspended at 31,000 followers after being pursued by UMG and Sony with their DMCA complaints, regarding music that my program added to some videos.

I'm just a 15 year old student developer, but I'm looking to find out what I can do in order to prevent things like this from happening. It seems that everything I've tried hasn't worked.

I should also note that this isn't a commercial project, it's just a hobby of mine.

Here's what I've tried so far:

• Submitting DMCA counter-notices to Twitter

In these counter notices, I've given all the required statements, as well as extra detail into their Fair Use Policy, explaining that my program is compliant with all the points detailed at that link.

Twitter says the following in their emails when they confirm they've received my counter-notice and forwarded it to the complainant:

If we don’t receive a notice from the complainant within 10 business days, we’ll cease withholding the material. The complainant’s notice must confirm that they’ve sought a court order to restrain you from engaging in infringing activity relating to content on Twitter.

In every case where I've received this email, I have never received a further notice from the complainant, but Twitter never ceased withholding the material after 10 business days either. I receive no further communications from both Twitter and the complainant.

There's no proper formal way for me to directly contact Twitter that I know of - communication is basically one-way.

• Contacting the complainant directly

This turned out very bad. Not only did I receive no reply back from them, they then appeared to increase the number of DMCA complaints my account got. I was receiving at least 5 complaints a day from then on - way faster than I could counter them.

Within a matter of days after contacting them, my account was just automatically suspended by Twitter - no way to counter it, nothing. I tried submitting counter-notices after my account's suspension, but I never even received a single email back.

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So I have 2 questions:

1. Am I in the right here? I clearly have no commercial or malicious intent to violate copyright laws. The material uploaded by the program is very short and insubstantial. Everything it uploads has zero impact on the original work's value.

   It's pretty easy to tell that just by visiting my account and looking at its content.

2. What further action can I take in order to prevent this from happening in the future (and perhaps get my original account back)?

   I've just added a feature that automatically processes the audio to check if it contains proper music, and then gives credit to the record label it belongs to. Would that help in mitigating further complaints?

   AFAIK, Fair Use isn't a law, so I'm not sure I can counter the takedowns based on that.

What else can I do? It's pretty crappy that they're trying to ruin someone's fun hobby while actual PIRACY is so rampant. There has to be something I can do.

I appreciate any advice. Thanks in advance!

Edit:

I don't see why my program would be considered a 'piracy tool' when a program such as youtube-dl (which is in fact the tool my program utilises in order to download music) is able to successfully be reinstated after a DMCA complaint from the RIAA.

Doesn't that program enable users to download copyrighted material from YouTube and other sites? Just because a tool could potentially be used to violate the DMCA, does that mean it can get taken down? Not in youtube-dl's case, and I don't see a difference with mine.

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How could anything helping users to add music not be used to facilitate adding without consent?

I like what @josh3736 referenced (from the Betamax case) and I think it's a good response:

the business of supplying the equipment that makes such copying feasible should not be stifled simply because the equipment is used by some individuals to make unauthorized reproductions of respondents' works....

EditVideoBot is an automated program that automatically edits videos based on commands provided by other Twitter users that mention the account - I am providing the service, other people operate and produce the material with it. I don't see why I need to take the fall.

Is my program not just one that provides a video editing service? It's purpose is not to infringe on any laws.

Edit #2:

I just got my first ever reply back from Twitter saying they ceased withholding a video from my account!

Maybe Twitter's counter-notice process is just really slow, but hopefully this means that I get more soon!

Answer 1

Twitter don’t have to host your account

UMG’s and Sony’s business is probably more important to Twitter than yours is. It seems Twitter have made a commercial decision to close your account down. They can do this:

We may suspend or terminate your account or cease providing you with all or part of the Services at any time for any or no reason, …

What’s happening is not fair use

Fair use is a lot narrower than you think it is.

UMG and Sony (and every other music label) get paid when people use their music on a commercial platform like Twitter. Which means, you enabling people to avoid this is directly reducing their market so this is not fair use.

Giving credit does not help. Now, if your program blocked the use of copyrighted songs that might be ok.

Your program looks exactly like a piracy tool

I’m sure you have the best intentions but your tool readily enables copyright violations by others. That’s moving out of the realms of civil breach and into possible criminal sanctions. I wouldn’t push this if I were you.

Your understanding of copyright is flawed

This video is a good primer on copyright.

Answer 2

EditVideoBot is an automated program that automatically edits videos based on commands provided by other Twitter users that mention the account - I am providing the service, other people operate and produce the material with it. I don't see why I need to take the fall.

There is no general-purpose "it's automated so liability is no" rule in the US. In general, you are responsible for the actions of your automated system, and for preventing end users from misusing it. The closest equivalent would be 47 USC 230, but it contains an explicit exemption for intellectual property law, so that's no help here.

Pursuant to 17 USC 512, automated systems that host content on behalf of users like this are exempt from a lot of copyright liability. But in order to qualify for this exemption, you would need to accept and process DMCA takedown notices, just as Twitter does. You would also need to comply with all of the other requirements of the DMCA, such as establishing a designated agent.

That won't actually solve anything, by the way:

• Twitter has decided to stop doing business with you. They have an absolute right to do that.
• Combining an arbitrary video with arbitrary audio is probably not fair use in most cases. However, you have repeatedly claimed otherwise in counter-notices to Twitter. Each of those counter-notices has created a risk of direct legal liability for the content in question. They could sue you over this at any time; they have (probably) chosen not to do it because they think you are likely to be judgment proof or otherwise not worth going after.
• The music labels will just send the DMCA notices to you instead of Twitter, and you'll still be required to comply with them. If you refuse, they can sue you. Since refusing a DMCA notice is much rarer than sending a counter-notice, the legal risk is proportionately higher in this case.

Answer 3

There is already an excellent answer out there, but the important thing to understand is that what you're offering isn't just a tool, you also publish the resulting copyright infringing video to your account. An easy solution to your problem would be to stop hosting your bot yourself and just provide the source code on github for interested parties to use at their own discretion. Nearly every post that bot seems to make seems to contain copyright infringing content.

Add to that that your bot explicitly acknowledges that the content is infringing in a lot of its posts in the form of "Audio courtesy of" messages and you can't even try to claim you thought nobody would abuse your bot. (Obligatory sketch)

Important things to know: You REALLY DO NOT WANT TO FILE A COUNTER NOTICE. As long as you just take everything down as quick as possible there won't most likely be legal ramifications. By filing a counter notice you are basically telling them "You are wrong, please sue me if you think you're right". It might take them time to sue you, but that's the next step in DCMA terms. Realistically what you want to do is to just delete anything with any third party audio track or third party provided visuals. Obviously videos with just text and nothing else should be fine.

Also worth noting, you might want to cancel and refund your fundraising campaign as quickly as possible, because that might make it a commercial project which is considered in a lot of different things around copyright. I am not a lawyer and my main focus isn't the US, but you already probably didn't fall under fair use from the start, when you start earning money (even if it's just to cover your cost) with the project it pushes you even further from any type of reasonable defense.