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12 minute read

April 11, 2022, 9:53 AM

Sometimes, it surprises me about how much some people lack awareness about their situation when they get caught in a copyright infringement case.  In this case, I sent a takedown notice for a photo of the old Giant Food store on O Street NW in Washington, DC, i.e. this photo:

I took that photo on March 28, 2006 while on a trip to DC while I was still living in Virginia, and it’s been knocking around on the Internet for about sixteen years at this point.  In this instance, it was being used as a visual for a video that someone posted on YouTube featuring an old radio spot that Giant ran in the early 1980s.  This was a Creative Commons image, however, with no attribution anywhere that I could find, it was still a copyright infringement.  So I went to YouTube’s copyright infringement form, completed it, and the video was removed shortly thereafter, with my receiving confirmation of the removal at 12:54 PM on February 18.

About five hours after I got the confirmation, I got this message from a person named David Pinson via the contact form on the website:

Well it seems I owe you an apology.  I used one of your pictures on a video for a radio spot from New Years 1980 and received a takedown notice.  You’re a Creator I’m sure you know how this works.  I got a copyright strike for it.  This compromises my channel.  I’m hoping that you’ll see fit to retract the takedown notice and I will delete the spot video completely it’s not worth risking damage to my channel.  I’m sorry I used your picture without permission.  I’m a non monetized creator it was used simply as a visual aid.  I did not intend to profit off of it or benefit from it in any way.  I hope you can see fit to accept my apology.  I appreciate your consideration in this matter.

Pinson also sent me a second message around the same time as the first, this one directly to my email address:

I already sent you a message at your website, but perhaps this is a better way to contact you.  I received the notification of the takedown of my video today while I was at work and the YouTube app on my phone did not provide an email address or I would have contacted you via this method originally.  I am not well versed in what is considered fair use as far as photos that get posted to the internet, and while I realize ignorance of such matters is not an excuse, I hope we can work this out.  I’m sorry I used your photo without permission.  It was used as a visual aid to accompany a radio spot from 1980.  That’s what my channel sets out to do is provide content for the sake of nostalgia.  I am not monetized and I receive nothing for providing the content aside from personal satisfaction if it brings about memories that people can enjoy.   What I am hoping is that you would consider retracting the takedown.  I will permanently delete the video which uses the O Street Giant Food store.  I really wish you would have considered contacting me as I would have gladly acknowledged your ownership of the image and altered or deleted my video immediately.  Unfortunately the takedown has resulted in a copyright strike which I’m sure you understand puts my channel in jeopardy.  Hopefully we can resolve this matter in a way that is satisfactory and doesn’t pose a threat to my channel.  I appreciate you taking the time to consider this.

I let these messages go unanswered, because as far as I was concerned, the problem had already been resolved by YouTube’s processing of the takedown notice, and I had no reason to engage him when I had already gotten exactly what I wanted.  It sounds like he knew that he did something wrong, but was more sorry that he got caught than he was about violating copyright in the first place.  In other words, “I’m sorry, but here’s why I’m right.”

That attitude reminds me of a relatively minor incident that happened when I was in seventh grade.  That was a pretty rough year overall, and this incident was just another piece of kindling on that dumpster fire of a school year.  In this case, it was a Friday, and we had been having a team-wide event all day, and as such, the movable partitions between our three classrooms were open, making one giant space.  At the end of the day, a few of us were waiting for dismissal in the middle classroom (there were two dismissal bells about five minutes apart, and my bus dismissed on the second one), and the classroom on one end was empty with the lights off (mind you, the movable partitions were still open, i.e. the rooms were combined).  I went over to the door of that room to say hello to someone that I spotted in the hallway, and practically got chased back into the middle area again by the teacher whose room it was, who acted as if my walking over to that part of the combined room was equivalent to the assassination of Archduke Ferdinand.  I was a bit perturbed about the situation, because I felt as though I had done nothing wrong, and even if I wasn’t technically supposed to be in that area, nobody ever told me that, and it wasn’t obvious because the partitions were open.  If the partitions were closed and the different rooms were walled off, that would have been one thing, but the three rooms were combined into one.  In any event, at the next meeting with the guidance counselor the following week, that teacher was in on the meeting, and she apologized for her over-the-top behavior.  But then she immediately went into a really long spiel where she defended her actions and then told me why I was wrong and why she was right to run me out like she did, completely negating her meager apology, and then some.  In other words, “I’m sorry, but here’s why I’m right.”  That was no apology, because this teacher demonstrated that she wasn’t actually sorry, and, in fact, piled on more in the “I’m not sorry” direction to the point that saying nothing about the incident at all and just leaving it alone would have caused fewer hurt feelings than that non-apology.  If the teacher actually was sorry for her actions, it would have been, “I’m sorry,” followed by a full stop, i.e. no need to qualify that apology and essentially negate it by trying to justify their unprofessional behavior.  I don’t give those kinds of non-apologies.  If I feel that an apology is necessary, I apologize and leave it at that.  I don’t apologize and then continue to defend my actions.  If I was wrong, I am making amends for a wrong.  If I don’t believe that I’m wrong, though, I just won’t apologize.  Simple as that.

In Pinson’s case, he starts out okay, but then quickly moves into in the sorry-not-sorry category.  In his initial message, he states, “Well, it seems I owe you an apology,” which is good.  But then he starts to justify his actions in the second message, saying, “I’m sorry I used your photo without permission.  It was used as a visual aid to accompany a radio spot from 1980.  That’s what my channel sets out to do is provide content for the sake of nostalgia.  I am not monetized and I receive nothing for providing the content aside from personal satisfaction if it brings about memories that people can enjoy.”  Then he goes on to say, “I really wish you would have considered contacting me as I would have gladly acknowledged your ownership of the image and altered or deleted my video immediately.  Unfortunately the takedown has resulted in a copyright strike which I’m sure you understand puts my channel in jeopardy.”  Ah, the truth comes out.  He’s not sorry that he violated copyright.  He’s sorry that he got caught, after biting off more than he could chew, and was faced with the real possibility that he could lose his YouTube channel for it.

When it comes down to things, though, he really has no room to talk.  His video was the juxtaposition of two pieces of content, neither of which he had the rights to use: the advertisement, which likely belongs to Giant Food or a related organization, and the photo, which belongs to me.  You know when people post content from the television and then say, “No copyright infringement intended,” or “I own none of this,” in the description, thinking that they can get away with copyright infringement by admitting what they’re doing right up front?  That’s what this is.  In other words, they know that they are wrong, they are openly admitting as much, but they’re doing it anyway despite knowing better.  Apparently, stepping on other people’s copyrights is a public service for the sake of nostalgia in his eyes, and then when he gets caught, he pitches a fit because someone won’t let him have his fun anymore.  Funny thing, though: as far as my side of things (the photo) is concerned, since it was a Creative Commons image, if he had provided attribution for it, he would have been in full compliance.  But he didn’t do that, which led to his getting nailed for it.  It pays to read the fine print, folks.

I also love when people get salty when I nail them for copyright infringement without consulting them first.  This is why we have the DMCA takedown process in the first place, so that I don’t have to go through the person who is being accused of copyright infringement, and listen to them moan and complain in order to address what I need to have addressed.  Rather, I just have to present my case to a disinterested third party (the host of the platform) in a standardized format, and they deal with it accordingly.  Boom, boom, done.  That’s why I find his request that I rescind the copyright claim to be a complete non-starter.  Why would I do that?  They’re asking me to undo what I did so that they can do the same thing themselves.  The rub for that is, as I said in my entry about the Almus Music case, by rescinding my copyright claim, I also give up my ability to do another claim on the same content in the future.  Therefore, if they don’t follow through, I have no further recourse short of lawyering up and going through a legal process, which, for a small case like this, isn’t worth the time or the expense.  The takedown process works quite well in allowing one to avoid such things, and besides that, I’ve been given no reason to think that Pinson would actually follow through and remove the content voluntarily, vs. deciding that he’s “doing the Lord’s work” or some other such thing by running his nostalgia channel and leaving it up indefinitely because he’s just decided that he’s right.  Bypassing him entirely and going straight to YouTube avoids all of this, as does letting the takedown stand.

And as far as the copyright strike goes, I have no sympathy for him.  Pinson made his bed, and is a little salty about the idea that he now has to lie in it.  I wasn’t the one who published works that I didn’t have the rights to.  He did.  And if one copyright strike based on a report from me kills his YouTube channel, then a pattern of infringement had been determined, and YouTube said that enough was enough and shut it all down.  Even more so when you recognize that copyright strikes expire after 90 days.  Therefore, it takes a lot of closely-spaced copyright violation notices to kill a channel.  Therefore, if you only get nailed for one infringement every 90 days, you could theoretically stay up indefinitely, since one strike rolls off just as the next one goes on, and you never have more than one strike on your record at a time.  In any event, a single copyright strike is your warning that you are going down the wrong path when it comes to content that you post on YouTube, and that if you continue down that path, there will be worse consequences than a trip to YouTube copyright school.

Ultimately, Pinson’s whole argument boils down to, “I’m upset that I got caught, and you’re a big meanie for holding me accountable for my own decisions.”  And at the same time, he seems blissfully unaware that he doesn’t have a leg to stand on, as the video that he published contains no content whatsoever to which he controls the rights.

Then, on March 17, I received a comment from “ConcernedAAco” on “Let me play a sad song for you on the world’s smallest violin…“.  The content of the comment made it quite apparent that it was Pinson, and that he was not happy with my lack of a response to his earlier messages:

It’s completely understandable that you take pride in your photography and want to protect your work.  What I fail to understand is why you would want to “sock it” to someone who is an individual creator on YouTube who is not monetized and used an image as a visual aid to accompany a 30 second radio spot from 1980.  Yes, this is somewhat unrelated to the post, but it ties in.  I can understand going after a monetized creator, an offshore business who used your photo to promote themselves, or a band who is obviously in it to sell their material.  That all makes perfect sense.  To go after an individual who runs a nostalgia channel as a hobby, a fellow Marylander as well who has apologized in multiple correspondence and sought to rectify the situation in a civil matter seems a bit heavy handed.  I have read your posts, I see you won’t respond to correspondence based on “ongoing litigation”.  That’s ludicrous in regards to this situation.  There is no litigation taking place, just months of penalties and YouTube purgatory.  You could have reached out to discuss the matter.  You could have lodged a copyright claim.  Instead you chose to request a takedown which you knew carried an automatic strike.  Some might see that as purely malicious based on the details.

First of all, kudos to him for actually reading the site.  Pinson is discussing the Almus case, as well as the Barbiturate case.  So he knew what I typically say about people who behave just like him when it comes to copyright infringement, and how I tend to verbally flog people in this space when they steal, get caught, and then whine about getting caught.  And yet he still went all in on it.  I suppose that he can’t say that he didn’t see the hornet’s nest, and then should not be surprised that he got stung after he chose to poke it anyway.

In any event, it’s clear that he was still salty about his getting caught, his getting nailed for it, and then my unwillingness to help him lick his (self-inflicted) wounds.  And he really doubled down on the “Schumin is a big meanie” position with this one.  There are a few points worth noting here:

I can understand going after a monetized creator, an offshore business who used your photo to promote themselves, or a band who is obviously in it to sell their material.  That all makes perfect sense.

That’s all well and good, but copyright infringement is still copyright infringement, whether it’s done by a television station, a grocery store, a school, a realtor, whatever.  I police copyright noncompliance pretty closely, and if you get a takedown notice from me, consider yourself lucky, because it means that I decided that your usage wasn’t viable for handling through other channels.

To go after an individual who runs a nostalgia channel as a hobby, a fellow Marylander as well who has apologized in multiple correspondence and sought to rectify the situation in a civil matter seems a bit heavy handed.

The intent behind your channel and where you are located in relation to me is 100% irrelevant.  It also doesn’t matter how many times you apologize.  After all, if you infringe on someone’s copyright and then get caught, I have no doubt that you are sorry about it.  I’m just not sure what you’re sorry about, i.e. are you sorry for the actual act, or are you just sorry that you got caught.  In this instance, I suspect that it’s the latter, and that they’re just sorry that they got caught.

I have read your posts, I see you won’t respond to correspondence based on “ongoing litigation”.  That’s ludicrous in regards to this situation.  There is no litigation taking place, just months of penalties and YouTube purgatory.  You could have reached out to discuss the matter.

Clearly, Pinson didn’t read those posts that well.  Prior to this entry’s publication, on the entirety of the schuminweb.com domain, the only instance where the word “litigation” has appeared is on a page called “The Sacred States of Pyrote News“, which is a nearly 20-year-old piece from the fall of 2002 discussing an international relations simulation for a class that I took during my senior year of college.  The context was, “In other news, the Grand Poobah of Justice, John Ashtray, has announced the beginning of litigation towards Bampff.  According to Ashtray, ‘We are not looking to punish anyone through this litigation. All we are interested in doing is bringing this whole thing to a definite end.'”  If Pinson wants to take that to mean that I’m not commenting because of that, sure, we’ll go with that, and hail the almighty Bolivar.

Additionally, there is a difference between not corresponding because of ongoing litigation, real or imagined, and not corresponding because it’s not worth my time.  I mean, what am I going to say?  “There, there, poor baby, it’s okay.  You just got caught doing something that you shouldn’t have been doing, and now you’re suffering the consequences that you absolutely deserve because of your poor decisions.  It was so totally mean of me to hold you accountable for your own actions like an adult.”  Or I could skip it and just let him be salty about it by his lonesome.  I chose the latter.

You could have lodged a copyright claim.  Instead you chose to request a takedown which you knew carried an automatic strike.  Some might see that as purely malicious based on the details.

For what it’s worth, since I am not a YouTube partner or otherwise a large content provider on YouTube, I do not have the ability to monetize other people’s videos on the platform when they use my content without authorization (i.e. leave the video in place on their channel, but any money from the video goes to me).  So that option is off the table, since I do not have access to those features, and YouTube won’t give them to me (I’ve asked).

I’m also not being malicious by any means, though I feel like there is a strong “Schumin is a big meanie” vibe throughout the whole message.  Really, though, it’s nothing personal.  It’s just business.  If it tells you how non-personal it is, I don’t even know what the channel is.  I found the video based on a reverse image search, I verified that it was an infringement, I filed my takedown notice, and then I moved on.  Surgical strike.  When Pinson messaged me, I looked to see if I could find the channel for a reference, and I couldn’t find it.  But when they decide to make it personal, I can go there with them, and people typically don’t like it when I do.

And I still find it funny how it so often works when it comes to treating people like adults.  People so often demand that they be treated like an adult.  You’ve probably said it at some point, yourself.  But then when someone actually treats them like an adult and holds them responsible for their actions, they don’t like it, and demand that they be coddled.  Which one is is going to be?

In the end, the usual lesson applies: read the terms of the license carefully, because you will be held to account for it based on its terms.  And if you do get nailed for infringement, take your licks like an adult.

Categories: Copyright infringement, Middle school, YouTube