Copyright enforcement on YouTube is a growing source of frustration, particularly the overbroad takedown efforts.
Many channel operators and users have complained about apparent abuse, but most don’t go any further than that.
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John MacKay, owner of the popular channel “Boxing Now” is an exception. On his channel, MacKay releases videos with post-fight commentary of popular fights. With hundreds of thousands of subscribers, he’s amassed a sizeable audience over the years.
The channel also comments on matches from the Ultimate Fighting Championship (UFC). Since MacKay hasn’t cleared the rights to these broadcasts, he doesn’t use video footage from these fights. Instead, he shows a few still images, commenting on these.
Nonetheless, the UFC is not happy with his coverage, as the organization has sent five takedown notices targeting Boxing Now’s videos. These are not automated Content-ID flags, but actual takedown notices, which resulted in the videos being removed from YouTube.
MacKay believes that his work is a clear case of fair use so in response sent counternotices for each takedown. The UFC hasn’t responded to any of these, which meant that YouTube restored the videos. However, at that point, most harm was already done.
“My videos are most often viewed in the days immediately after a fight, and when UFC has them taken down for a few days with these unfair copyright claims, I lose a lot of viewers and a significant amount of money,” MacKay says, commenting on the issue.
Frustrated by the continued takedowns, MacKay decided to take a stand. He reached out to the Electronic Frontier Foundation (EFF) to help him address the matter. The EFF was happy to oblige and this week attorney Alex Moss sent a letter to the UFC, demanding that it stops sending unwarranted notices.
In the letter, Moss goes over the four factors of fair use, concluding that all weigh in the channel operator’s favor. For example, the videos are transformative, only use a few frames of the copyrighted content, and do not compete with the original broadcast.
“Mr. MacKay’s post-fight commentary could not and did not affect the market for a live broadcast or recording of the entire fight. If anything, Mr. MacKay’s use of still images for commentary purposes would likely increase demand for the original,” Moss writes.
The EFF’s attorney points out that the UFC has an obligation to consider fair use before sending a takedown request, as was determined in the Lenz vs. Universal case. The repeated notices targeting Boxing Now’s videos indicate that the UFC has failed to meet this obligation, which harms the channel’s business.
When the videos are taken down shortly after being posted, MacKay is missing a lot of views and therefore ad revenue. Added to that, the takedown notices also put his channel at risk, as YouTube may terminate accounts after repeat infringements.
What the UFC’s precise motivation is for the requests is unknown. The EFF’s attorney points out, however, that the UFC also has its own post commentary videos on YouTube and that it’s reducing the competition with its takedown notices.
“We note that UFC also produces YouTube videos containing post-fight commentary, and that Mr. McKay’s videos and UFC’s videos may compete for viewership and advertising revenue. This further suggests that UFC’s takedowns of Mr. McKay’s videos were done in bad faith,” Moss writes.
The channel operator, therefore, demands that the UFC stops issuing unwarranted takedown requests. The EFF requests that the organization confirms this intention before the end of the month.
“Accordingly, we demand that you cease sending takedown notices for Mr. McKay’s videos that make fair use of still images from UFC fights. Please confirm your agreement to do so by May 28, 2019, ” Moss concludes.
It’s not clear whether the EFF and MacKay plan any legal action should the UFC fail to meet their demand. However, as highlighted a few days ago, the likelihood of a lawsuit over unwarranted takedown notices becomes ever more likely, whether that happens in this case or not.
Speaking with TorrentFreak, Moss says she can’t go into detail about any potential follow-up steps. The EFF’s attorney hopes that the letter has some effect and that the UFC stops sending wrongful takedown notices.
A copy of EFF’s letter, sent to UFC on behalf of Boxing Now’s John MacKay, is available here (pdf).