Clinic Students Bring Video Editor, “Citizen Archivist” Back Online

This is a story with a very happy ending. Paul Dougherty is serious about video. He’s an award-winning video editor whose work is part of the collection at the Museum of Modern Art in New York. He’s also a prolific citizen archivist whose collection of off-kilter clips from the heady early days of cable have served as raw material for his own art projects. In addition to mashing clips together to make art, Paul occasionally shares clips online, sometimes to comment on their cultural significance, sometimes to surface artifacts of our forgotten history, but always with a critical and discerning eye for old clips that will have new meaning when placed in the decidedly new context of the Internet.

Using other people’s video to make your own art or commentary is a highly defensible fair use, of course, but the videos’ owners don’t always see it that way. The law allows copyright holders who believe their works have been posted illegally online to send notices to websites like YouTube, Tumblr, and Facebook, and requires those websites to take down the allegedly offending clips. Not surprisingly, after several years of sharing short clips on YouTube, Paul accumulated more than three rightsholder complaints, or “strikes,” against his account. YouTube has a policy of suspending the accounts of users who receive three or more strikes, so Paul’s account was taken offline. That’s where our clinic student attorneys came in.

Starting in 2013, student attorneys Alexis Patterson and Benjamin Penn began working with Paul to respond to the strikes and get his YouTube account back online. The team developed a series of strategies for getting the strikes removed, and were able to get one strike down before graduating in 2014. Then, in the 2014–15 school year student attorneys Sarah O’Connor and Mark Patrick took over Paul’s case and were able to have the remaining strikes removed. Now Paul’s YouTube Channel, and the weird and wild world that he both documented and helped to create, are back online.

Perhaps the most remarkable thing about this experience for both teams, I think, was learning how much of legal representation, even representation where there’s an underlying dispute, is done “in the shadow of the law” but without actually interacting with the courts. The notice-and-takedown regime that led to Paul’s account being terminated is a creature of the law, but the students’ efforts to have his account restored were carried out in private as negotiations with the rightsholders and with YouTube. Knowledge of fair use and of the Digital Millennium Copyright Act were crucial, of course, but so too was knowledge of YouTube’s terms of service and of the rightsholders’ business models and interests.

In the end, as with all of our clinic representations, this was a win-win-win situation. Paul got his account back, our students got to learn more about the law by doing hands-on legal work for a client with real needs, and the public got the benefit of a notice-and-takedown system that is at least a little less one-sided and more accommodating to lawful users like Paul.

P.S. Rolling Stone readers might recognize Paul’s name: he’s been in the news lately for a remarkable letter he received in 1977 from an Epic A&R man explaining why the US record label had not released the first album by the now-seminal-but-then-obscure punk band The Clash. Paul posted the letter online and it’s a great read.

About Brandon Butler

Practitioner-in-Residence at the Glushko-Samuelson Intellectual Property Clinic.
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