Free Speech

University Trying to Block Distribution of Faculty Senate Meeting Video Excerpts Using Copyright Law

An interesting controversy involving Portland State University.

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Here's a letter from the Foundation for Individual Rights in Education on the subject; I have asked PSU for their response, and will post whatever I receive from them:

Dear President Percy: …

FIRE is concerned about the state of free expression at Portland State University (PSU) in light of the university's recent claim that a YouTube video containing footage from a public meeting violates PSU's copyright. Manipulating copyright law to censor use of public footage in a video critical of PSU not only misapplies copyright jurisprudence, but also defies PSU's obligations under the First Amendment.

[I.] PSU Demands Removal of YouTube Video for Alleged Copyright Violation

The following is our understanding of the pertinent facts. We appreciate that you may have additional information to offer and invite you to share it with us. Please find enclosed a waiver, executed by Professor Bruce Gilley, authorizing you to share information with FIRE. However, if the facts here are substantially accurate, PSU has betrayed its constitutional obligations by abusing copyright law as a vehicle for censorship.

On March 8, 2021, the Oregon Association of Scholars (OAS), of which PSU professor of political science Bruce Gilley is president, posted a video to its YouTube account criticizing a recent PSU faculty resolution on academic freedom. The resolution held that faculty "must be thoughtful in [their] exercise of academic freedom and guard against its cynical abuse that can take the form of bullying and intimidation." The New Censorship Video argued that the resolution will "deny academic freedom to all unWoke professors." In making this criticism, the video included less than two minutes of footage from the March 1, 2021, PSU Faculty Senate meeting.

Two days after the New Censorship Video was published on YouTube, Cynthia J. Starke, PSU General Counsel & Secretary to the Board of Trustees, emailed Gilley to demand that OAS remove the video. In her message, Starke argued that the use of Faculty Senate meeting footage violated PSU's copyright, and threatened to issue a formal takedown notice under the Digital Millennium Copyright Act if Gilley did not remove the video by noon the following day. Gilley removed the New Censorship Video from the OAS YouTube account after receiving this demand. Gilley republished the New Censorship Video on the OAS YouTube channel on March 15, removing the Faculty Senate Footage.

[II.] Usage of the Faculty Senate Footage to Critique PSU Is a Fair Use, and Clearly Does Not Violate Copyright

A copyright is not a complete bar on any other use of the copyrighted work, and a copyright cannot be used by government entities as a shield against criticism. To the contrary, Gilley's use of PSU-owned footage to criticize PSU and its Faculty Senate's decisions during the filmed meeting is undoubtedly a fair use.

[A.] Fair use protects the right to use materials for criticism.

Under 17 U.S.C. § 107, a use of copyrighted material "for purposes such as criticism [and] comment … is not an infringement of copyright." See also Sony Corp. of Am. v. Universal City Studios, Inc., 464 U.S. 417, 450–51 (1984) ("But a use that has no demonstrable effect upon the potential market for, or the value of, the copyrighted work need not be prohibited in order to protect the author's incentive to create. The prohibition of such noncommercial uses would merely inhibit access to ideas without any countervailing benefit."); Twin Peaks Productions, Inc. v. Publications Int'l, Ltd., 996 F.2d 1366, 1375 (9th Cir. 1993) ("Inevitably, some identification of the subject matter of a writing must occur before any useful comment may be made about it, and it is not uncommon for works serving a fair use purpose to give at least a brief indication of the plot.").

The fair use doctrine offers "breathing space within the confines of copyright" protection. Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 579 (1994) (internal citations omitted). Fair use analysis takes into consideration four factors: the purpose and character of the use, the nature of the copyrighted work, the amount and substantiality of the portion taken, and the effect on the original work's potential market. 17 U.S.C. § 107. Where the purpose and character of the use is highly transformative, the other factors become less significant. Campbell, 510 U.S. at 579.

[B.] The New Censorship Video offers commentary on the faculty senate footage, and is therefore a fair use.

Transformation occurs when use of a copyrighted work "adds something new, with a further purpose or different character [than the original], altering the first with new expression, meaning, or message[.]" Id. at 579; see also City of Inglewood v. Teixeira, 2015 U.S. Dist. LEXIS 114539, *16–17 (C.D. Cal. Aug. 20, 2014) (holding that videos criticizing city government, including clips from city council meetings, were transformative fair use).[1] Such uses are not copyright infringements.

Where an individual uses copyrighted video footage in order to criticize the footage, this is a transformative fair use. Equals Three, Ltd. Liab. Co. v. Jukin Media, Inc., 139 F. Supp. 3d 1094, 1105 (C.D. Cal. 2015); see also SOFA Entm't, Inc. v. Dodger Prods., 709 F.3d 1273, 1278 (9th Cir. 2013). For example, in Equals Three, the U.S. District Court for the Central District of California determined that videos that used footage from another content creator in order to criticize and comment on the original videos did not violate copyright. 139 F. Supp. 3d at 1104. The court explained that "the host's narration [did] not simply recount what is shown in [the original] videos," but instead used the original videos as "the butt of" the jokes in the new videos. Id. at 1105. Because the new videos had a different purpose from the original videos, the use was not a copyright infringement. Id.

The purpose and character prong of the fair use test also considers whether the use is commercial in nature or is for a noncommercial purpose, where noncommercial uses are weighed in favor of fair use. 17 U.S.C. § 107(1).

Here, Gilley's use of the faculty senate meeting footage is not only wholly noncommercial—supporting the nonprofit OAS—but is clearly a criticism of PSU, making his use of the footage transformative. Just as in Equals Three, Gilley did not merely recount the faculty senate meeting, but offered criticism of the meeting, making clear that the purposes of the New Censorship Video and the faculty senate footage differ vastly. For this reason, Gilley's use of the footage is a transformative fair use and does not violate PSU's copyright.

[C.] Gilley's use of the New Censorship Video satisfies every other prong of the fair use test.

Transformative uses are rarely held to be unprotected by fair use, but transformation is not necessarily dispositive of the fair use analysis. Nonetheless, Gilley's use of the faculty senate footage satisfies every other prong of the fair use analysis.

The second prong of the fair use analysis—the nature of the copyrighted work—considers whether the original work is creative or if it conveys merely factual information. Campbell, 510 U.S. at 586. Here, PSU can make no serious argument that a screen recording of a public meeting automatically taken by video conferencing software is a creative work. Thus, the nature of the copyrighted work—a highly factual, public record—does not undercut Gilley's fair use claim.

The third prong of the fair use test—the amount and substantiality of the portion used—considers "the quantitative amount and the qualitative value of the original work used." SOFA Entm't, 709 F.3d at 1279. Usage of large portions or the "heart" of a copyrighted work will cut against a finding of fair use. Campbell, 510 U.S. at 586–87.

Here, Gilley did not use a large part of the faculty senate footage in producing the New Censorship Video. In fact, the New Censorship Video used less than 125 seconds of footage from what was certainly a robust discussion at the PSU faculty senate. The footage used was neither a quantitatively high amount of the faculty senate meeting footage, nor the "heart" of that footage. The third prong supports a finding of fair use.

The fourth prong of the fair use analysis questions whether the use causes a market harm. In other words, does the use affect "the potential market for or value of the copyrighted work"? Monge v. Maya Magazines, 688 F.3d 1164, 1180 (9th Cir. 2012). Here, given that the footage is a public record subject to disclosure to any member of the public under Oregon's public records law, Or. Rev. Stat § 192.314(1), it is unlikely that PSU plans to sell copies of the faculty senate meeting footage or derivative works. Gilley, then, drew no buyers away from PSU's original work by way of his transformative use. Accordingly, the fourth prong also supports a finding of fair use.

Each prong of the analysis supports a finding that Gilley's use of the faculty senate footage in the New Censorship Video constitutes a fair use. Thus, PSU cannot claim that Gilley violated the university's copyright by creating and publishing a video critical of the institution.

[III.] The New Censorship Video is Protected by the First Amendment

It has long been settled law that the First Amendment is binding on public colleges like Portland State University. Healy v. James, 408 U.S. 169, 180 (1972) ("[T]he precedents of this Court leave no room for the view that, because of the acknowledged need for order, First Amendment protections should apply with less force on college campuses than in the community at large. Quite to the contrary, 'the vigilant protection of constitutional freedoms is nowhere more vital than in the community of American schools.'") (internal citation omitted); see also DeJohn v. Temple Univ., 537 F.3d 301, 314 (3d Cir. 2008) (on public campuses, "free speech is of critical importance because it is the lifeblood of academic freedom").

As a public institution bound by the First Amendment, PSU cannot hide behind erroneous application of copyright law to silence its detractors.

This First Amendment protects the right to criticize government actors, including decision-making bodies like the faculty senate. "[I]t is a prized American privilege to speak one's mind, although not always with perfect good taste, on all public institutions." Bridges v. California, 314 U.S. 252, 270 (1941). So central is this ability to criticize officials that the Supreme Court, affirming that "debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials," determined that a higher standard of fault applies to speech-related torts where a public official is the plaintiff. New York Times Co. v. Sullivan, 376 U.S. 254, 270 (1964) (emphasis added).

The First Amendment also preserves the right of faculty to speak as private citizens on matters of public concern. Connick v. Myers, 461 U.S. 138, 150 (1983). When a government employee, such as a faculty member of a state institution, speaks outside the scope of his normal job duties, that expression cannot be restricted unless the institution demonstrates that the speech rights of the employee are overcome by its interests "as an employer, in promoting the efficiency of the public services it performs through its employees." Id.

Here, Gilley created the New Censorship video to criticize PSU, as is his First Amendment right. He did so as a private citizen, not as an employee of PSU; it is highly unlikely that PSU employs Gilley for the purpose of criticizing the university.[2] The university cannot demonstrate that its interest in preventing such criticism, or its interest in preventing dissemination of a public record (that is, the faculty senate footage) overcomes Gilley's interest in exercising his constitutional rights.

To the extent that PSU aims to silence Gilley's speech because it is controversial or offensive to some, these attempts are misplaced. By using copyright as a means of quelching First Amendment-protected expression, PSU simultaneously misuses copyright and violates Gilley's right to free speech.

[III.] PSU Must Rescind Its Demand and Produce Public Records

PSU's attempt to use copyright law to burden its critics' speech would be an abusive act if it originated from any government institution, but PSU's status as a public university makes the abuse all the more shocking. Because Gilley's use of faculty senate footage is clearly a fair use, PSU must immediately rescind its demand that Gilley remove the New Censorship Video from OAS's YouTube account and allow Gilley to repost the uncensored version of the video without reprisal.

Further, as the faculty senate footage is a public record subject to Or. Rev. Stat § 192.314(1), PSU must release the video to FIRE, pursuant to the public records request attached to this letter. We trust that PSU will ensure that this record is produced expeditiously.

[1] In City of Inglewood v. Teixeira, 2015 U.S. Dist. LEXIS 143380 (C.D. Cal. Oct. 8, 2015), the U.S. District Court for the Central District of California awarded more than $135,000 in attorney's fees to the defendant content creator after Inglewood unsuccessfully sued the defendant for using city council footage in videos critical of the city government.

[2] The "critical question" in determining whether speech is that of an employee or private citizen is "whether the speech at issue is itself ordinarily within the scope of an employee's duties, not whether it merely concerns those duties." Lane v. Franks, 573 U.S. 228, 240 (2014).

I will add that it's possible that under Oregon law state agencies can't even have copyrights in materials such as videos of agency meetings, but the matter seems unresolved. Compare County of Santa Clara v. Superior Court (Cal. Ct. App. 2009) (concluding that California law limits such assertion of copyright by government agencies) with County of Suffolk v. First American Real Estate (2d Cir. 2001) (concluding that New York law generally doesn't limit such assertion of copyright by government agencies). FIRE's argument is correct, though, even if PSU generally owns a copyright in the video.

NEXT: Today in Supreme Court History: April 7, 1969

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  1. Isn’t the owner of the copyright the taxpayer?

    Could the police block release of bodycam footage with the same argument?

    1. Which taxpayer would make decisions about when and how to enforce the copyrights? Those decisions are always delegated to some particular government officer or official for pragmatic reasons.

      Police bodycam footage would not be protected by copyright (under US law) because it doesn’t reflect any creative decision about the recording or its content. A video recording of a faculty senate meeting probably has at least a minimal amount of deciding where to place the camera, when and where to pan, or the like. But maybe copyright would not vest in the faculty-senate video.

      1. The lesson is to not depend on someone else’s work to make your point, if you need to make a point.

        1. When your point is criticizing a decision by a representative body, why on Earth would you not quote and copy their decision?
          This is quintessential fair use for the most basic of uses: reporting and criticism.

          1. Because US Copyright law is now written by Google and not the US Congress…

            1. I thought Disney wrote it.

              1. My point is that the actual law is irrelevant.

                1. To you, Ed, reality is irrelevant, because it so rarely conforms to your expectation(s).

          2. “When your point is criticizing a decision by a representative body, why on Earth would you not quote and copy their decision?”

            Quoting them is fine. Using their copyrightable media without getting clearance first is, well, infringing they copyrights.

            “This is quintessential fair use for the most basic of uses: reporting and criticism.”

            Go back and reread the statute. Purpose of use is one of four factors, and is not dispositive.

        2. The lesson is to not depend on someone else’s work to make your point, if you need to make a point.

          Given that the point that being made was about the content of someone else’s work, the stupidity of the comment above is self-evident.

          1. Yes, your statement was quite stupid.

      2. From another post in this brilliant blog, police played a pop song during the recording by a bystander. Each replaying of the recording would require payment for the song.

        1. If only there was some way of deleting the audio from a video recording…

    2. Eh, I’d rather think there cannot be copyright in government documents and other materials. They’re public materials, therefore there should be no right to restrict their dissemination.

      1. The thing is, that isn’t what the law is.

  2. Tragic. Here, found one person smarter than Eugene. Both he and Eugene could have amounted to something in any other field, being brilliant people. Now, their lives are totally wasted. And society is tragically deprived of their brilliance, their now being dumbasses.

    https://www.wsj.com/articles/at-21-brazilian-man-isset-to-be-one-ofyoungest-admitted-to-new-york-state-bar-in-decades-11617714005

    1. Is it just that you’re obsessed with Volokh and have to spew on every thread?

      Or are you actually triggered to call him a dumbass because he posted about … the law, and abuse of copyright?

      Have you considered acting in ways that will convince us that you aren’t the dumbass here?

      (You’re at like .95 Kirklands here. You don’t wanna get to 1.0.)

      1. Hi, Sig. Whom did you vote for in the 2020 election?

        1. DaivdBehar, you still thinks voting matters, other than as an individual act of self-expression?

    2. “Tragic. Here, found one person smarter than Eugene.”

      Coincidentally, I found several billion people smarter than you. They weren’t hard to find, either. It’s like they’re EVERYWHERE.

  3. Reminds me of a rant or two by a YouTube music critic complaining his videos got demonetized or taken down over what was clearly fair use. Copyright law is only of secondary importance when the real decision is being made by YouTube.

    Also reminds me of a different kind of private takedown. In a public meeting in a small town a politician made statements that would hurt the town if they were introduced in an ongoing lawsuit. The video was made to disappear from the internet after town officials noticed the problem. The town itself did not record the event and plausibly had no records responsive to a FOIA request. The job had been outsourced to a friend who was happy to take down the videos from his web site.

    1. “Copyright law is only of secondary importance when the real decision is being made by YouTube.”

      Exactly, and that is why their monopoly status needs to be dealt with, either by common carrier status, or complete breakup.

      But how do you claim copyright on something already in the public domain? Wasn’t this the official record of a public meeting?

      1. How do you “break up” YouTube?

        Seriously, what does it look like to “break up” YouTube?

        AT+T got broken down into … regional telco monopolies.

        But the internet don’t work that way (and effectively can’t, and especially nobody would want a video clip sharing site that worked like that.

        Will you … make “TubeYou” as a forced competitor and just move half the accounts there, whether they like it or not?

        Or … what?

        1. You can break up google which owns YouTube

          Google’s search engine will direct you to a youtube video 100% of the time instead of a one on a competing site. So it drives youtube’s dominant market share.

          1. Google’s search engine will lead you to what you’re looking for, which is why so many people choose to use it.

        2. “AT+T got broken down into … regional telco monopolies.”

          AND the “long lines” division, which remained as AT&T, separate from any of the “baby bells.”

          This was possible because AT&T never was a total monopoly, there always were (and are) small private telephone companies serving small rural areas, and they were interconnected into the AT&T network so that they too could make & receive long distance phone calls.

          What the breakup really did was segregate long distance service from local service and initially one had to chose between long distance carriers (AT&T, SPRINT, GTE, etc.) to be default carriers while one could access any of them with a 5-digit code.

          It then took the regional operating divisions and combined them into larger entities — e.g. New England Telephone and New York Telephone were made into NYNEX, which then combined with another entity to become Bell Atlantic, which then became Verizon.

          While I prefer the common carrier approach, a similar bifurcation of Youtube is theoretically possible, with an additional mandate that any other Youtube-like entity should have equal access to the Youtube distribution network, paid for with established tolls.

          1. Remember both that the AT&T breakup really started with an earlier FCC ruling that AT&T had to permit non-AT&T equipment to connect to its network if it met AT&T specs. This is where ringer equivalence and the rest came from — AT&T once required you to rent your phone from them, *and* pay extra for every extension line.

            Remember too that long distance was way overpriced and the big issue was the other carriers who wanted to compete for price in that market.

            1. “Remember too that long distance was way overpriced and the big issue was the other carriers who wanted to compete for price in that market.”

              The AT&T breakup didn’t take any of AT&T’s long-distance business away from them. That’s what they kept, all the long-distance fiber-optic cable, while they divested from all the existing local-service copper plant (and the high costs of maintaining the old copper gear.)

        3. “How do you ‘break up’ YouTube?”

          You take away the monopoly they don’t have.

      2. “But how do you claim copyright on something already in the public domain?”

        You start by learning what is, and what is not, in the public domain.

    2. “Copyright law is only of secondary importance when the real decision is being made by YouTube.”

      It’s totally possible to take any dispute over copyright on YouTube to the courts, but you have to be prepared to pay for the usual costs involved in the US legal system. YouTube is trying to provide a cheap, streamlined process to resolve most disputes, but it’s not the decision-maker of last resort.

    3. “Copyright law is only of secondary importance when the real decision is being made by YouTube.”

      YouTube didn’t do anything.
      A demand letter was sent, and OAS complied with it by taking down their own video and then they re-uploaded the video with no copyrighted material in it.

  4. Why does FIRE cite a decision from California based on California law for guidance on what Portland State University can do? Do they think the PSU counsel doesn’t know that Portland isn’t in California?

    1. Where do you see them doing that?

      1. I will add that it’s possible that under Oregon law state agencies can’t even have copyrights in materials such as videos of agency meetings, but the matter seems unresolved. Compare County of Santa Clara v. Superior Court (Cal. Ct. App. 2009) (concluding that California law limits such assertion of copyright by government agencies) with County of Suffolk v. First American Real Estate (2d Cir. 2001) (concluding that New York law generally doesn’t limit such assertion of copyright by government agencies).

        1. That’s not FIRE, (although that was less clear before the formatting fix), and the reason it’s being done is to invite a comparison between Oregon law and interpretations of other state laws, not because the author thinks the PSU counsel doesn’t know that Portland isn’t in California.

          1. Oops, I see Prof V. has clarified.

        2. Suffolk is also not in California. The entire point of that section is to make the point that the law is unclear whether or not any state’s law really allows states (or their municipalities) to assert copyright at all. The case in California concluded can the state cannot assert copyright. The case in New York concluded that the state might be able to assert copyright. No case has yet tested Oregon law – but at minimum, that means that Portland’s assumption that they can assert copyright is challengeable.

          1. “Suffolk is also not in California.”

            Nor was it cited by FIRE, they went with a case from the Central District of California.

          2. ” that means that Portland’s assumption that they can assert copyright is challengeable.”

            Sure, cite the statute that says universities can’t assert copyrights, and I’ll take that seriously. Until then, copyright exists as soon as the work is fixed in a tangible form.

      2. “Where do you see them doing that?”
        (Citing a case from California citing California law)

        It’s in the footnotes.
        “[1] In City of Inglewood v. Teixeira, 2015 U.S. Dist. LEXIS 143380 (C.D. Cal. Oct. 8, 2015), the U.S. District Court for the Central District of California awarded more than $135,000 in attorney’s fees to the defendant content creator after Inglewood unsuccessfully sued the defendant for using city council footage in videos critical of the city government.”

    2. California law is not persuasive in Oregon? Not even slightly?

    3. Perhaps because no public entity in Oregon has ever tried a stunt like this before.

      Personally, I think that a complaint to PSU’s accreditor would be in order…

      1. Good luck with that.

    4. Sorry, that was my point, not FIRE’s; I had inadvertently put it in the block quote (but I’ve now taken it out). As to why I wrote it, I thought the text was self-explanatory:

      I will add that it’s possible that under Oregon law state agencies can’t even have copyrights in materials such as videos of agency meetings, but the matter seems unresolved. Compare County of Santa Clara v. Superior Court (Cal. Ct. App. 2009) (concluding that California law limits such assertion of copyright by government agencies) with County of Suffolk v. First American Real Estate (2d Cir. 2001) (concluding that New York law generally doesn’t limit such assertion of copyright by government agencies). FIRE’s argument is correct, though, even if PSU generally owns a copyright in the video.

      I was suggesting another argument that could be made, though acknowledging that its outcome was uncertain (precisely because Oregon courts haven’t considered it), and stressing that FIRE’s fair use argument is valid even if this supplementary argument doesn’t fly.

      1. Why is it that the rule that anything that a Federal employee does can not be copyrighted different for state employees? Is that in the law itself, or is there some funky kind of federalism coming in here?

        And then what does the Oregon Public Records law say?

        I fail to see how one can claim ownership (which is what copyright is) over something that the state law says that you must give, free of licensing charges, to anyone and everyone who requests it.

        1. 17 USC 105(a): “Copyright protection under this title is not available for any work of the United States Government ….” The Copyright Act has no such exception for state government works, though; that’s just the Congressional decision. But, as I mentioned, state law might (or might not) preclude copyright protection for certain kinds of state government works.

        2. “I fail to see how one can claim ownership (which is what copyright is) over something that the state law says that you must give, free of licensing charges, to anyone and everyone who requests it.”

          Perhaps your confusion would be relieved if you know what the law actually says, instead of what you’d like to imagine it says.

      2. “Sorry, that was my point, not FIRE’s”

        That’s not what I was referring to, Professor.

    5. I read them as saying there that California law says one thing about copyright vesting in those kind of situation, but New York law disagrees. They specifically said it appears “unresolved” in Oregon.

      1. Hah, that will teach me better than to leave a comment half-written and come back later.

  5. Note to self: Please remember to blog the judges’ photos which have copyright notices attached. Not only that, photoshop long-bristled asses’ ears onto the heads of these legislating self-enthroned royals.

    Since I am elderly, not all that agile any more, and entitled to the safeguards of the ADA and the recusal caselaw, I don’t worry about the Grim Reaper’s scythe of judicial vengeance.

    Should I? Oh, if you only knew.

  6. Is what copyright law actually says really all that relevant here? PSU is not threatening to sue the professor. It is threatening to ask YouTube to take the video down.

    YouTube is not bound by copyright law in making this decision. What does copyright law have to do with it?

    The only way that copyright law has any relevance is that if YouTube can plausibly cite copyright law as the reason for its taking down the video, it is immune from lawsuits under Section 230.

    But why would it need this immunity? FIRE wouldn’t have a cause of action for YouTube taking down the video if YouTube merely agrees with PSU that the video is bad stuff not deserving of publicity or would uoset its target audience.

    Copyright law here may have the same role here that election law had to McConnell’s decision not ot give Merrick Farland a hearing.

    It’s an excuse, not a reason.

    Arguing about the details would seem beside the point. It would be like thinking that when images of a pretty woman are displayed in an advertisement to sell you a car, the woman actually has something to do with it. Discussing details of her life or appearance is beside the point as to whether you buy the car or not. Same here. Dangling references to copyright helps sell the goods. But it has nothing to do with the goods themselves.

    1. PSU threatened to send YouTube a copyright takedown notice under the Digital Millennium Copyright Act (17 USC 512), alleging copyright infringement. That notice would have legal effect, by potentially exposing YouTube (i.e., Google) to copyright infringement liability if they continued to keep the material up. And there is in turn a legal mechanism that Prof. Gilley could use to respond — a § 512 counternotification — that would let him keep the video up unless PSU actually sued for copyright infringement.

      So this isn’t just a threat by PSU to ask YouTube to exercise its discretion as a private company to remove certain material. It really is all about copyright law, it seems to me. Indeed, § 512(f) provides for legal liability for anyone who “knowingly materially misrepresents under this section … that material or activity is infringing.” Whether or not the fair use argument is so strong that PSU would be liable if it submitted a takedown notice notwithstanding that argument, § 512(f) makes clear that DMCA takedown notices are supposed to be based on copyright law.

      1. “Indeed, § 512(f) provides for legal liability for anyone who “knowingly materially misrepresents under this section … that material or activity is infringing.”

        Wow….

        Is there anything that prevents a preemptive § 512 counternotification? And what will Gaggle do then?

        And who would be liable under § 512 (f) — the university (whose liability is likely limited under state law) or YouTube? (Or does sovereign immunity and state tort claims limits apply to a § 512 (f) suit?

        1. There’s no such thing as a preemptive § 512 counter-notification, and a counter-notification is not a counter-claim, it’s just a way of saying “no, this content shouldn’t be taken down under copyright law, and I’m prepared to prove it in court”.

          Having said that, the end of the notification/takedown/counter-notification process is that the content stays up while the parties litigate in court, at which point presumably Giley could also assert his own counter-claims.

          Assuming YouTube follows the procedures outlined under the DMCA, they’re not liable–that’s the whole point of the process and the safe harbor provision in particular.

        2. >Is there anything that prevents a preemptive § 512 counternotification?

          Or, for that matter, does 512(f) even apply to a mere “threat” of a notice? Does the 512(g)(2)(c) deadline still apply to a mere “threat”?

          Put differently, this sounds like a major loophole in the balance the DMCA was trying to strike.

          1. Why? A “threat of a notice” doesn’t do anything harmful to the receiving party, other than possibly stress them out. It’s just like a no-consequences (for all involved) version of a takedown claim.

          2. “Or, for that matter, does 512(f) even apply to a mere “threat” of a notice?”

            In general, how do laws treat “threats” to do something you’re entitled to do?

        3. “Is there anything that prevents a preemptive § 512 counternotification?”

          Besides being a stupid idea that wouldn’t do what you imagine it would do? Probably not.

          “And what will Gaggle do then?”
          They’ll (continue to) know the law better than you do, having read all the way down to 17 USC 512(g)(1), where it says in plain English that they would have no liability.
          “a service provider shall not be liable to any person for any claim “

  7. Right-wing cranks — even apologists for colonialism — have rights, too.

  8. PSU (though that causes confusion with Penn State and we just call it Portland State) was my alma mater, but that was well over 20 years ago.

    They wouldn’t, I think, have tried this then, but I’m not the least surprised to see it now.

    (Not even because they’re Extra Woke, but because they don’t care about speech norms; every school wants to make critics shut up.

    Most of them seem to realize that they can’t, and that trying just makes them look worse.)

    1. Where is the Oregon state legislature on this?

      1. In Salem, which lacks any institutions from the Oregon State System of Higher Education. Very few people in Oregon pay much attention to Portland State. Pretty much their sole claim to fame is once having sent a quarterback to the NFL.

    2. In the early 90’s, KPTV in Portland had a quiz show that pitted teams from different high schools against each other. During the summer, they needed some teams that were actually around, so they built a college mini-tournament. Teams were recruited from the major 4-year schools nearby, as well as the local community college. The PCC team won two straight summers before the show had to change the rules because the UofO was going to stop competing because they were tired of having their butts handed to them. The only competition to the PCC dominance came from another community college on the Washington side of the river.

  9. Don’t worry, Whittington’s new free speech organization will be all over this any day now.

    1. Well, FIRE is all over this already, so I’m not sure that it makes sense for other organizations on the same side to invest much extra work in it. Each such organization has limited resources, which are often best spent on dealing with cases that no-one else is supporting yet. (Though of course it’s possible that, especially if it comes to court, other organizations might chime in with amicus briefs or some such.)

      1. Prof., I was being a crank. Let’s see if they do help out, I personally doubt it will.

        That said, the new professorial free speech organization that he is a prominent member of, to you point about limited resources, would likely be better off if they disbanded and put their efforts towards FIRE.

  10. Professor Volokh,

    Please remember to post their reply, if any, on this blog.

  11. “The resolution held that faculty ‘must be thoughtful in [their] exercise of academic freedom and guard against its cynical abuse that can take the form of bullying and intimidation.’ The New Censorship Video argued that the resolution will ‘deny academic freedom to all unWoke professors.’ In making this criticism, the video included less than two minutes of footage from the March 1, 2021, PSU Faculty Senate meeting.”

    I’m agreeing with Prof. Volokh on this one, and at the same time, it sure does seems like there’s a big need for adult leadership on both sides here.

    PSU doesn’t want their employees bullying or intimidating anyone – OK.

    But somehow that’s going lead into “deny[ing] academic freedom to all unWoke professors.”

    And then PSU – instead of just letting it go – has to get all pissy.

    Sheesh…

    1. “PSU doesn’t want their employees bullying or intimidating anyone – OK.

      But somehow that’s going lead into “deny[ing] academic freedom to all unWoke professors.””

      That’s what the video presumably argues. I haven’t watched it, does it not make a very good argument?

      It is not, of course, hard to find examples of people claiming that criticism and disagreement is bullying or harassment, so the danger that policies designed to curb bullying might be used to silence speech is a legitimate one.

    2. This matter appears to be aggravated by (1) the professor’s personality, (2) the school’s regret that it hired a guy who likes colonialism and owning the libs, (3) the professor’s handling of his lack of fit on that campus, and (4) the school’s mishandling of a misfit’s acting out.

      1. All of which are protected by academic freedom.

        But I do say you seem to have a keen insight into these personality-clash situations, Arthur.

        1. A person does not lose academic freedom by shilling for colonialism and engaging in general right-wingery.

          Just reputation, professional standing, and respect of most decent observers.

          1. “A person does not lose academic freedom by shilling for colonialism and engaging in general right-wingery. ”

            Depends on whether or not they’ve cleared the probationary period following their being initially hired.

  12. faculty “must be thoughtful in [their] exercise of academic freedom and guard against its cynical abuse that can take the form of bullying and intimidation.”

    I am sure that this policy will be enforced evenhandedly across the political spectrum. I am sure that this is not a cynical ploy to silence conservative faculty members.

    1. Usually, when you need to silence conservative faculty members, mocking them directly does the job.
      It turns out, faculty members who’ve earned their place generally get left alone, even if they are raving partisans in Portland. Professor Jim Huffman, the resident libertarian/conservative at Lewis and Clark (Portland’s law school) ran for the US Senate as a Republican in 2010, and came back to work as a law professor after being soundly spanked at the polls. A few years prior, popular professor John Kroger ran for state AG as a Democrat and simultaneously won the Republican primary as a write-in. He only served one term as AG before retiring back to academia as President of Reed College.

  13. You know, it turns out that you can easily pull only the sound from the video. And I’ve been struggling myself for so long, until I came across this https://www.movavi.com/support/how-to/how-to-convert-video.html article, which has laid everything out by the

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