I’m still awaiting any bit of response as of this morning from Shelley Lubben Communications, Inc., on my counter notification regarding YouTube’s blocking of my mirror of the first video installment of “The Devil And Shelley Lubben”. Considering that she might have far bigger issues on her plate now, I’m probably waiting until the 12th of never, 2100.

In the meantime, though, I’m going to give y’all some background into Lubben’s most recent and blatant attempts to throttle her YouTube critics with DMCA takedowns, how YT’s bias toward copyright holders stifles free speech and expression, and how the concept of “Fair Use” makes her attempts so feeble and unneccessary.

You will remember that earlier, the Ministeress had gone into a DMCA takedown binge against every one of her critics, exploiting YouTube’s stated copyright policy to strike down originals and mirrors alike, citing her copyright protection and ownage of original material that she claimed was “stolen” to use against her. Michael Whiteacre, for example, had his entire channel taken down for “numerous copyright violations”, including the original installment of TDASL; while another critic of Lubben, Jordan Owen, had some of his vids targeted…including the original “8-foot staff” video that I had mirrored.

All of the videos have been restored and the records of the targets cleansed, and ultimately YT didn’t find enough to pursue any further charges…so why has Lubben been allowed a second try? And, how can those of us protect ourselves and our channels from future false flag DMCA takedown attacks?

Ahhh, but the solution has but two words: “Fair Use”.

Although the United States has become progressively more tightwadish when it comes to protecting copyright, it has not yet (despite recent efforts) been able to enable the 1% to copyright the world and force others to pay usurous tribute to them every time we type their name. There is still a First Amendment right to free speech and public expression, and public figures can still be held accountable for their words and actions in the court of public opinion.

And, much of that protection is thanks to that wonderful exception that was carved out of copyright law called “Fair Use” (actually, U. S. Code Title 17), which basically states that even otherwise copyrighted material can be used without fear of penalty under certain parameters and conditions.

Which conditions and parameters, you ask?? Quoeth FindLaw.com:

Under the Copyright Act, the fair use of copyrighted material without permission is allowed when used for the following purposes:

• Criticism
• Comment
• News reporting
• Teaching, includes making copies for use in the classroom
• Scholarship and research
• Parody

These uses do not grant the right to use the copyrighted work in its entirety. Rather, the use should be limited to quoting, excerpting, summarizing, and making educational copies of the material.

There is, though, one minor glitch in the Fair Use umbrella protection: deciding whether written or filmed material falls under that protection is usually left to the legal system (read, the courts) to decide on a case-by-case basis, and your local mileage may vary between jurisdictions. There is, however, a four-pronged Factor Test, mapped out under the terms of the Copyright Act, which courts regularly use to determine if a piece of work borrowed from another person is protected under Fair Use. Again, quoting from FindLaw.com:

Courts consider four factors when evaluating whether an unauthorized use of copyrighted material is fair. The following factors are guidelines under the Copyright Act:

• The purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes: Courts consider whether the use is transformative. For instance, was the purpose of the new use transformative, did a new expression change the original work, or did the use create new information or lead to new ideas? The more transformative a new work, the more likely a court will consider it fair use.

• The nature of the copyrighted work: Courts look at whether the copyrighted work is creative or factual and whether it is published or unpublished. Creative works, such as fiction, creative nonfiction, pictures, and graphic works, typically receive more protection. Factual works, such as history accounts and scientific works, receive less protection because of the benefit to society from the exchange of ideas . Authors have a right to decide when to publish their work, so the use of unpublished works without permission is less acceptable than using published works.

• The amount and substantiality of the portion used in relation to the copyrighted work as a whole: Courts consider how much material was copied and was the copied material a central part of the original work. When a large portion of the entire copyrighted material is used or it includes the use of a central point , it is less likely that a court will consider it fair use. For, parody, however, it is acceptable to borrow a large portion and to use the central part of the original work.

• The effect of the use upon the potential market for or value of the copyrighted work: A court will look closely at a use that deprives a copyright holder of income, regardless of whether the new material is competing in the same market. Important factors include the current market and the potential market.

Courts may use additional factors to determine whether the unauthorized use of copyrighted material is fair.

So…how is that relevant to the current battle of wits between Shelley Lubben and her critics??

Well..let’s use the infamous “8-foot staff” video as an example.

Note that I am using the original that Jordan Owen posted to his channel that was cleared by YT for reposting, NOT my mirror that was also blocked (and is now pending a counter notification request).

Let’s say that Shelley had decided to call Jordan’s bluff and actually take the matter to court, saying that “Your Honor, there is no doubt about this…this is theft of my work intended to harm me by mocking my passionate religious beliefs and my mission against the destruction and the harms of pornography. He invaded my property and distorted my work…make him pay.”

Using the Four Factors, does Shelley have a proper case??

Transformative work that changes the ideas presented in the original video Shelley posted?? Gee…I’d say so, since the annotations that Jordan added simply addresses some of the whack accusations and charges that Lubben adds to her antiporn “altar call” for her ministry.

Use for nonprofit/educational means?? Last time I checked, YouTube was a FREE platform for anyone with the ability to post videos, and neither Jordan nor Michael Whiteacre were using their videos to sell books. Shelley??  Not so much.

Was Shelley’s original vid intended to be published, and is it considered to be a “creative” or a “factual” work? Non-published and more creative work gets more copyright protection than public and published works, and the fact that this was a private altar call to her followers does give Lubben some protection. On the other hand, there were some prominently public statistics and assertions about public people in that video that could be considered to be public expression, and as we all know, political speech has NO copyright protection whatsoever.

Was only a portion or all of the copyrighted work used?? Here is Shelley’s strongest case she can make, because she can claim that in adding annotations to her video and reposting it as his own, Jordan basically violated the “can’t use a video in its entirity, only clips and snippets” principle. Problem is, Ministeress, that gives you only ONE of the Four Factors, and you are screwed on at least two of the other three.

Effect on the potential market value of the original Lubben vid?? Unless Shelley plans to make her little staff prayer part of her ministry video/CD/DVD series (and why that, when she has plenty of material she can use that isn’t quite so…inane??), I fail to see how a four minute YouTube video available for free really affects her market value…any more than her Cambridge University meltdown can??

In other words…in three of the four principal factors in determining Fair Use protection, Shelley would get killed in court. The only chance she would have would be if she got a favorable judge who agreed with her professed antiporn biases and would be more in line with focusing strictly on the fact that she had her YT vids copyrighted, and that anyone using them without her expressed approval is deserving of legal action. There may even be judges of that ilk around…but they’re also the kind who would also agree that Barack Obama isn’t a citizen of the United States, too. Lotsa Luck finding that judge, Shelley.

Indeed, the only reason why Shelley has been able to go even this far might be due to YouTube’s very, very secretive and amphrous copyright policy, which remains an enigma for those who are the victims of excessive DMCA takedowns. Apparently, all one has to do is state to YT that their video posted is copyrighted and to mount a challenge to every other use of that vid as “a violation of copyright”, and YT responds with warp speed to shut the offenders down, without so much a warning or even an appeal, other than the counter notification option. And even then, you have to go through such hoops and bells and whistles to even locate the damn form, and then you have to wait 14 business days for the original challenger to respond with either an official lawsuit or a settlement offer…then, if none is forthcoming, the videos are reinstated. But, the strike remains against you, and on your third strike, your channel gets pulled…though there is a period after which the strike(s) is/are removed if no other violations are found.

The grand irony in all of this is that Google, who owns YouTube, fancies themselves as one of the most protective and open when it comes to full expression; they have even been the subject of some vicious attacks from supporters of tougher and more astringent copyright legislation, who claim that Google is essentially a fair haven for content thieves and one of the main reasons why stronger measures are needed.

Why Google would go through all that, yet allow their main video engine to be reduced to a haven for deliberate and excessive DMCA takedown attempts which are nothing more than thinly veiled censorship and throttling of criticism and accountability, is a question I’d really wish to level at their brass.

But…I’ll hold off for now and just wait for my videos to clear the gauntlet.

In the meantime, Ministress, just be lucky that I don’t have lots of bank to throw lawsuits back down your throat, or that I have far better and more productive things to do with my life. Besides that, you might want to focus your efforts a bit towards saving yourself, because it’s going to be kinda hard to do DMCA takedowns from a jail cell. Even, one cured and blessed by your God.