so we do the terms of service and then I
get little email ceas and assist from
Spice hi top music attorney we removed
your video from YouTube I'm sorry that
that seems to piss off companies to the
extent that I get threats because
they're not happy with what I'm
saying I fight for you guys on this
channel every single day but apparently
now I have to fight to even keep this
channel so if you're new here what I do
is music business education I'm an
entertainment attorney I'm also an
independent artist and I take all my
experience collectively together to put
out content to help you with your music
careers and your music businesses and
just everything that you want to do and
what you want to accomplish for yourself
so if you've been following me for a
while you know I am a real attorney I
own a law firm and I've been doing this
for 10 years so we're in a really
important meeting today it's like a
multi-million dollar deal super intense
and then I'm noticing that my phone
notifications are popping off I'm like
Oh my goodness what is happening so I
finally kind of you know look just to
see what crisis is going on and one of
my team members is like oh my gosh
Crystal splice filed a strike on your
YouTube channel and I was nothing short
of totally mortified not just because of
the strike which as you guys who make
YouTube videos know is a really bad
thing and can actually result in the
loss of the channel altogether but
actually I've been in active
communication with SPL SP this week and
specifically their legal department so I
go oh boy if splyce had a problem I'm so
surprised that they didn't just email me
like they did yesterday or maybe just
file a copyright claim on the video no
they filed the most aggressive thing
they could which is a strike so let me
give you a little context a few days ago
I released a review of the spices terms
of service I do that I have a series
where I go through the terms of service
for these music businesses and I tell
you guys what these contracts say that
you're being forced to sign in order to
use these platforms and I've had a lot
of requests to review splice for a long
time and I finally had a chance to get
to it so just like I always do I go
through and I just give you the four
corners of the contract what it says
I've read thousands of terms of service
and so I just let you guys know here's
some stuff that might be good might be
bad this is just what you should know so
we do the term a service and we release
it and then I get a cute little email
that's a cease and assist from splyce
and they give me a list right and they
go look we think that you are
mischaracterizing some things we think
that you are causing some confusion and
so we're like demanding that you issue a
new statement a retraction that you just
do something and it took a look at the
position that they were taking because
as you know lawyers have a tendency to
take different positions on things and I
go you know what first first of all I
love that you actually reached out to me
to the extent that I am a spokesperson
of any kind for the music business
community and knowing that we had
questions we're confused about some of
the language in the contract or we don't
think some things are clear the fact
that you reached out is amazing thank
you very much and I go you know would
you do me a favor let's jump on a phone
call right so let's jump on a phone call
because I understand what you're saying
but we need to talk about this a little
bit further cuz I'd like just tell me
just tell me what your guys' policies
are tell me what you do and then I can
like give some updates to my community
and I specifically told them that I was
going to be going live this was
yesterday now I go I'm going live and so
you know we did this like two three
hours right before the show so big
meeting with the legal department for
splice and as we went through and they
kind of explained and go okay so you
know it's so helpful for me that you are
telling me this extra stuff and now I
know and I will also share it with my
community I go however the issue here is
that it doesn't actually say what you're
saying in some of these instances in the
contract so I go at the end of the call
I just go look it would be quite the win
if you made an update to your terms of
service for purposes of just clarifying
this cuz in the call you know they're
all saying you know it's so important to
us that we're super clear we really are
all about our creators and our users so
okay great if that's the case let's do
this as a team you know you guys
hopefully will update your terms of
service to be a little more clear and I
will concurrently do a video you know
providing some updates and
clarifications right and even on that
call you know I gave recommendations on
how I you know suggest I'm like take it
or leave it I'm like but this is how I
would reward it because there was a
little bit of push back and they're like
well you know we kind of don't want to
do it for this reason or that reason I
go okay I hear you but here's how I
would do it and I just gave them an
example because I'm like actually it's a
really easy solution so without
repeating the entire video that I did
yesterday which is now taken down and
I'll show you guys all the things here
shortly I basically just went through
the email that they sent me and I go all
right so you know they're taking issue
with the fact that I am pointing out the
non-transferability language right these
words that they're using and showing
that it's kind of inconsistent here and
there so I go this is what I said this
is what the term said this is what their
email said and this is what they told me
today so here's what I can at least
share with you guys that's what I did so
I just went through and I'm like for
purposes of just clarifying this is what
they told me this is maybe why I said
something a certain way and then I want
to step further because I actually went
out of my way to try to just you know
end this on a really positive note to be
like I was so excited that splice took
time to have a little chat and to you
know hopefully try to provide some
clarification to their users and one of
the things that we talked about was this
certified license so if you are using
samples from splice they provide you a
certified license and what I was told
was that this certified license is like
the only thing that you need if you ever
need to do something with your song
which contains the sample if you are
licensing it if you are selling it like
any instance you're good to go and so in
my effort to create transparency and
show you guys I'm like hey this is where
you get your license in your account and
it wasn't my account right this is my
show producers account he's the music
producer so he downloaded one of these
licenses he gave it to me and it's just
you know their template language with a
couple of sentences in it so fast
forward to today we get a dmca copyright
takedown notice let me show you what
that looks like hi top musicor
we received a copyright removal request
for your video based on applicable
copyright law based on applicable
copyright law we removed your video from
YouTube and what video was it it was my
live stream from the night before which
is splice response and they go tips to
start new music projects I did a Q&A and
this is a music business podcast they go
the content use that
allegedly is copyright infringement was
they put what splice put is not
applicable confidential
correspondence and proprietary
documentations screen shared within the
video so they say it the content use not
applicable what do you mean it's not
applicable that's the entire basis of
filing a copyright infringement claim
that you are alleging someone is using
your copyrighted content but then it
does go on to explain it says well there
was a confidential you know
communication correspondence and a
proprietary documentation screen shared
within the video and then you are asked
to actually tell YouTube and to tell the
end person receiving this which happens
to be me what was it so I download of
course all my content and so I have
copies of everything so even though it's
off of YouTube right now I still have a
copy of the video so this particular and
I think it's 57 seconds so this
particular 57 seconds is showing their
certified license that we had done as
just kind of like a little test to show
you guys and be like where do you get
your license to make sure that you can
if you run into problems with your music
distributors or your record labels or
whatever so we're just showing that to
educate you and help you and to explain
so in a you know almost what was it hour
and a half 2 hour live stream this is
what they were claiming okay so let go
on back and well who who claimed it who
filed this and we know that this is
distributed Creations Incorporated which
is the company doing business as splice
we also have the contact information for
privacy purposes I like to give
courtesies all right they may not be
given to me but I like to give
courtesies of covering people's names so
it's one of the legal people over at
splice filed this all right they go this
means your video can no longer be viewed
on YouTube you received a copyright
strike you now have one copyright strike
if you get multiple copyright strikes
will have to terminate your channel so
let me take a quick step back and
basically just walk through this as if I
was the client right it's not actually
me I'm I'm advising someone I go well
they're identifying that there may have
been a confidential correspondence so
we'll say that was the email that they
sent me it was not a confidential
correspondence and in fact as a
litigation attorney I can tell you that
when we're litigating sometimes there
really are confidential Communications
which we have to identify we go pursuant
to rule 4 away to the federal Rules of
Evidence this is not something that you
can use if there's a lawsuit doesn't
mean you can't share it it just means
that you can't use in a lawsuit to prove
liability but that's not what this was
they sent me a little email saying hey
we think that you need to clarify some
stuff so all right is this copyright
infringement no they're saying it was a
confidential correspondence the other
piece that we just saw is that it said
that this was a proprietary document so
I'm assuming that they're talking about
the CER ified license all right so if
they go this is our Preparatory document
and we didn't want to sh
everybody well a big part of the
conversation that I had with splice is I
go look my big problem here is that I go
I sell music catalog all the time we
sold $9 million of Music catalog last
year and I can tell you that when I'm
looking at your terms there's going to
be problems because it's not clear and
especially in the language where it's
like you can not assign this agreement
or any of your rights here too it at
best conflicts with the other language
which is like yeah please go license no
big deal you can remix you can adapt and
I go that's inconsistent so I'm like
asking for just clarification or updates
you need to make some updates but back
to the discussion which was oh Crystal
you know when it comes to this you know
this this license this is the thing that
everyone uses right the big labels use
it and this is the thing that freely
transfers the rights our artists you
know on users they can license they can
sell we have no problem with any of that
I was like wow that's really good to
know and then I told my audience
yesterday but going back to is me
showing their license copyright
infringement the answer is no and I'm
going to tell you why so if I was
advising myself I go gosh it seems like
someone has filed a false copyright
infringement claim on your video Crystal
and I would argue this is only not
confidential information it's also not
proprietary information because
according to spice's own legal
department everyone can just freely give
this license to whoever they want
anytime meaning other people get to see
this document this is not like a private
document but most importantly it's not
copyright infringement so what do we do
I'm glad you asked so what we're going
to do for a second is pretend that the
information that was contained in the
letter in the license agreement the
certified license is copyrighted
material materal because under copyright
in order to have copyright protection
you just need to take your creative
expression and fix it into a tangible
medium and have your own originality in
it so in this case where it's like a
half a page license agreement and then
also an email that was kind of rude P.S
but nonetheless the drafter may have a
claim that they have copyright
protection in those things now again
what was actually claimed on the video
is solely the license agreement in the
time code that was provided to YouTube
but this is how we work through it as
lawyers so we take a peek at Lens versus
Universal Music Corporation 801 f3d 1126
and this was in the United States court
of appeals 9th circuit I am in the ninth
circuit so this is a very applicable
case so here's a quick summary so
Stephanie lens she filed a lawsuit and
this was under 17 USC section 512f we've
talked about this on the channel
actually which is part of the Digital
Millennium Copyright Act the dmca and so
this complaint was filed against
Universal Music Corp okay and she was
alleging that Universal filed a takedown
notification of her YouTube video and
was climbing copyright infringement for
use of a portion of the video that
contained a Prince song in the
background okay and so she goes well and
and then you know we we'll get to to to
to to more of the meat of the claim but
the claim boils down to a question of
whether copyright holders have been
abusing the extrajudicial takeown
procedure provided for in the tmca by
declining to First evaluate whether the
content qualifies as fair use and in
this court they said we hold that the
statute requires copyright holders to
consider fair use before sending a
takedown notification and that failure
to do so raises a triable issue as to
whether the copyright holder formed a
subjective good faith belief that the
use was not authorized by law all right
so quick recap so they're saying that
under
512f if you if you try this little like
Trojan Horse thing where really you're
filing a false copyright claim and
you're going I actually want to take
this down because I don't want you to
see something that's in this video
unfortunately that happens all the time
right like I said doing this a long time
and you know we have to deal with people
who file false claims and we assert the
512f and I'll tell you why that matters
but we just go look you don't get to
file a copyright infringement claim
because you're unhappy like and that's
this is usually what it is because
you're unhappy of what the person's
actually saying in the video about you
you might have other claims you might be
able to sue you might be to do all kinds
of things but you don't get to use the
Digital Millennium Copyright Act and
what's set up through YouTube to get a
video taken down and reportedly
according to the claim itself it was
because the email and the license
agreement was showed on the screen all
right so in the courts analysis back to
this Johnson and PS Johnson was working
for Universal so he's the one that's
assigned to go and find all the songs
with Prince music in it and to file
takedowns on YouTube so uh when univers
will say had to file the takedowns the
notice has to include a good faith
belief statement as required under copy
right law 17 USC section 512 C3 a v
which says we have a good faith belief
that the above described activity is not
authorized by the copyright owner its
agent or the law so as it relates to my
video and the good faith statement that
was made by an experienced music
attorney who works for a music business
I don't even say attorney a team of
attorneys who work for a music business
who are aware of fair use which we're
going to talk about for a sec here
momentarily said yes we have a good F
believe that the above activity is
copyright infringement so let's keep
going all right so lens right filed the
second amended complaint and alleging
cuz there were other claims and they
eventually got dismissed so but alleging
just we're back to the 512f okay so that
there was a claim for misrepresentation
under 512f well you know what what does
512f say the court goes on to discuss if
an entity abuses the dmca abuses the
dmca because this is something that is
set up to help people to protect their
copyright that the entity doing this
thing may be subject to liability under
512f the section provides quote any
person who knowingly materially
misrepresents right you file a fake
claim under this section that material
or activity is infringing so you're
making a claim that the stuff in the
video is copyright infringement shall be
liable for any
damages and I've read the statute so
many times I can just tell you what the
rest of that sentence says which is any
damages incurred by the alleged
infringer whether they actual damages or
their attorney's fees so you know as a
law office we we make this argument all
the time and we go you know usually
we're just trying to sort this out we're
like just please retract you know your
claim and sometimes it's maybe because
people just make a mistake they don't
understand and we go just so you know it
does say this we are able to come after
you for like damages and attorney fees
and all the stuff happening so before
that happens and before this escalates
please just retract your claim fair use
is not just excused by the law it is
wholly authorized by the law in
1976 Congress codified the application
of a four-step test for determining the
fair use of copyrighted works and this
is what it says not with understanding
the provisions of sections 106 106a the
fair use of a copyrighted work for
purposes such as criticism comment news
reporting teaching including multiple
copies for classroom use scholarship or
research is not an infringement of
copyright in determining whether the use
made of a work in any particular case is
a fair use the factors shall be
considered include and this is this is
how the court looks at this and guys
just for context because sometimes
people will hire our office to provide a
fair use analysis because maybe someone
is doing a documentary and so they're
using pictures and video clips that are
copyrighted and belong to other people
but their documentary may qualify as
fair use and if it qualifies as fair use
under the law you are okay to include it
in your let's say video but there's four
factors okay and the courts generally
look at these they don't take all of
them sometimes they'll weigh different
things a little heavier than others but
this is what the factors are so they go
the purpose and character of the use
including whether such use is for a
commercial nature or is it for a
nonprofit educational purposes right are
we just trying to educate people okay
two the nature of the copyrighted work
what is it right is it something where
you have invested I don't know hundreds
of thousands of dollars youve made a you
know feature film is it an email that
took 30 seconds there may be copyright
in it but the court looks at this as far
as what is the copyright thing that you
are upset about out number three the
court looks at the amount and the
substantiality of the portion used in
relation to the copyrighted work as a
whole right so you know for example how
much did we actually need to use if I'm
like hey I'm doing a documentary and
then you know I go this is a documentary
talking about the different types of
films in the world and then I literally
just have the whole like all these films
just play from start to finish that
doesn't make sense if I'm using a
representative portion like a little
portion I'm like hey so this is like a
horror film oh this is like a you know
and so I go through for purposes of
making my educational point that would
weigh towards fair use and then number
four we have and consider the effect of
the use upon the potential market for or
value of the copyrighted work so we look
at basically like what's the impact on
the market is you using this copyrighted
thing damaging the original thing right
and sometimes the answer is
unequivocally yes so is me talking about
this certified license in a very
positive light which I did I go hey
here's the thing this is what they said
use it this is the you know everyone
it's like accepted in the industry and
so me just showing you what it is so you
know where to get it and what it is is
this damaging splice in the market or
devaluing their certified license in my
opinion no it's not and again even as it
relates to the Emil they're like hey you
didn't make us look very good because we
were kind of like you know mean to you
when you're in the email on it kind of
made us look not so good okay that's not
copyright infringement so let's keep
going 17 USC section 107 the statute
explains that the fair use of a
copyrighted work is permissible because
it is a
non-infringing use so I gave this a
little thought and I go all right so you
know my channel has about 1,300
educational videos on it all dedicated
just to helping you guys with you know
understanding the music business
understanding how to stay protected
legally and I was like let me try to
figure out what it costs for me to do
what I do and what I've done to dat and
so I go all right 1300 videos and you
know we take holidays off but otherwise
I do this once a week just for the live
show segment and so you know that's
approximately 50 shows a year so that's
you know over the course of four years
about 200 shows each show that I do is
no less than six hours from prep to
recording to you know all the stuff we
have to do afterwards so basically that
brings us to about 1,200 hours that I've
invested to get this channel to where it
is and if we multiply that by the time
that I take off of work right as a
full-time lawyer we're now in the
multiple six figures so that's the value
of this channel by itself that they've
now put at risk because they chose to
actually file a strike against the
channel and of course that doesn't
account for other time invested by
editors that you know edit the video so
you guys have videos all throughout the
week now here's the thing I go back to
we did the live stream but that's the
way that I do this channel is that we do
the live stream and then I cut up all
the different videos and segments of
what I talk about and that's what we
release throughout the week so the
actual video that we have been editing
and we were planning on releasing was
meant for purposes and they saw it
that's why they filed the claim but was
meant for purposes of not only providing
clarification specifically from splice
because you know on our call I just
pointed out some things and they you
know clarified for example one thing
that came out it had to do with your
access to your account and then also
these certified licenses that are so
important that you download that it's
the first time I've ever heard about it
and I represent producers all the time
who use splice and so one thing that
splice legal had shared with me was that
they're like uh you never you well in
fact to be honest they actually
conflicted two of the attorneys one said
you are good to have access to your
account for 5 to six years and then the
other one jumped in and said no no no
it's forever and even if there is a
problem you can reach out to our
copyright email and we'll help you and
so then you know on that call I was like
Hey so just so you know when I went
through your terms it actually doesn't
say that it says once you are done you
are kicked out of your account you no
longer have access and that's why I
stress to my followers that it's just
really important that you download your
certified license which proves that you
are okay to use the sample in your songs
so there was my reaction to this but you
know my show producer who has been a
part of this channel since the very
beginning he was quite up in arms and he
goes what are they trying to hide if
this really is about the certified
license what do they not want people to
see that they then filed this false
copyright infringement claim against
your video to get it taken down so to be
clear I really would like to release
that video but it's going to be really
tough while I have already one strike on
my channel and the the idea was
literally to help you guys and to convey
what they shared but then also to
provide clarification on the language in
their terms of service that literally
conflicts whether this is actually me
and my Channel or if I was just advising
someone I would say this is completely
an utterly outrageous and I'm pretty
disappointed in splice now I do want to
say that I do not want you to hate on
splice okay this is my fight it is not
yours my honest hope is that they will
voluntarily retract their copyright
strike on my channel and the only ask
that I have which was in my video
yesterday is that splyce needs to update
its terms of service and in fact their
legal team told me that they would and
if you have seen my original review of
their terms of service if you think that
splice needs to update their terms to
just better clarify that you have an
unrestricted right to use the sound
within your song including for purposes
of selling your song so long as you
don't do all the things that we go
through in their terms such as just
taking their samples and reselling them
as sample packs if you think some
updates would be helpful leave your
comments down below now because this is
an educational Channel I thought I would
show you what I'm filing as my counter
notification on YouTube so a counter
notification basically this is like the
appeal right on YouTube so distributed
Creations Incorporated which is splice
Hereafter claimant improperly issued a
copyright claim in violation of the
Copyright Act which is 17 USC 101
sequential clayman's copyright claim
lacks Merit and is made in bad faith
claimant blatantly ignores the fair use
nature of the video which is pursuant to
107 and therefore fails to uphold its
burden in lens versus Universal Music
corporation which we just went through
the creative YouTube video at issue
which is Hereafter the YouTube video of
top music attorney Hereafter YouTuber is
an educational and transformative video
providing a legal reaction to documents
provided to claimant users the video
also analyzes claimants terms of service
in particular which are publicly posted
on its website this is not a
confidential thing splice has it on its
website the YouTuber provides commentary
and criticism and education for users
utilizing clayman's website the document
in question is displayed on the screen
for 27 seconds and the YouTuber educates
users on its purpose and use this
YouTube video and use unequivocally
qualifies as commentary education and
criticism so real quick guys you know if
you want to freeze frame uh you know
this video this is language when you do
file your counter notifications if you
are claiming fair use if you were saying
someone filed a claim it's wrong because
I did have the ability to let's say you
know if you just cover news you're like
I am reacting to this for commentary
criticism so this is the language that
you would use this YouTube video
constitutes non-infringing fair use
under us copyright law because it is
transformative in nature it uses no more
of the original than necessary to make
the educational point and has no
negative effect on the market for the
original work thus under Section 107 of
the 1976 Copyright Act the fair use
factors weigh heavily in favor of good
faith fair use courts have already
weighed on this question YouTube videos
of this nature are fair use as a matter
of Law and we side to another two cases
thus climens copyright claim has no
merit was not made in good faith and
must be removed immediately the YouTuber
appreciates your review and
consideration so just a pro tip you know
it's helpful when you are just as
factual as possible when you are
submitting these counter notifications
just to help it along because quite
frankly had we you know drafted this out
of just you know emotion and being like
this is what they said in their claim
they're like there's a confidential
communication there's a proprietary
document that I'm seeing and oh by the
way as it relates to the claim of
copyright it's not applicable so rather
than just kind of getting into that and
just being like to the extent that you
guys take is what they're saying is true
that it is copyright infringement cuz
there may be copyright in these things
right we go regardless this still
qualifies as fair use and this was a
very improper claim that was filed on
this video to be clear I do not want
escalation of this matter and like I
said I really would love to release that
video even if they would like me to take
out the alleged showing of the license
agreement I can take that out it was
literally meant for the users for you
guys just to see in case this is like
news to you I could certainly take that
out since that seems to be the big issue
here but I did want to mention regards
to the 512 F damages and the fact that
they have filed a false claim for
copyright infringement because pursuant
to the law as we read they were required
to consider that this could have
qualified for fair use and not only that
we don't have a lay person who filed
this we had a legal department who's
very familiar with the law and this law
in particular and I mean you know the
nuclear option with all of this you know
if I again if I was advising myself is
you know eventually we can just get an
injunction because maybe let's say I
release that video right it's almost
done being edited and they decide to
file a second copyright strike well even
at this point getting an injunction
getting a court to say you splice are
violating the law you cannot file these
dmca copyright infringement takedown
notices and I have all of these options
because I'm not only an attorney but I'm
an attorney who also has a team of
attorneys that work for me across the
United States and that's not Fair that's
why I do this channel because I can go
to bat for myself and I can just go as
long as I need to go on this but you
guys don't have that option and that's
why I review these terms of service
because it's important that you
understand what these companies are
really saying and what you are required
to sign to use their services and I'm
sorry that that seems to piss off
companies to the extent that in some
instances now I get threats or I
actually have a company take legal
action against my YouTube channel
because they're not happy with what I'm
saying like I said I do this channel
because I'm just so passionate about
music I've been doing music since I was
four I'm an independent artist I've run
my own record label and I became a
lawyer because I wanted to learn how to
protect myself so I go you know what for
the people who are like me who want to
learn how to protect themselves in this
music business I'm going to help them
please be sure to leave that comment
below if you would like to see that
splice video and most important ly if
you think that splice needs to update
its terms of service