Taylor Lorenz’s Power User - Is a YouTuber Using Copyright Law to Silence Speech?

Episode Date: July 11, 2025

[FREE SPEECH FRIDAY] For decades, content creators have fought against oppressive copyright law. Copyright claims have been wielded by powerful corporations to take down videos, suppress criticism, and stifle parody through rigid enforcement of online speech. But now, a troubling shift is unfolding: legal attacks that were once used almost exclusively by powerful media companies, are being weaponized by a big content creator against smaller content creators. Meredith Rose is a senior policy counsel at Public Knowledge, a non profit promoting freedom of expression and an open internet. She joins me to talk about how copyright law and discussions of fair use are central to the fight over free speech in the digital age!***** Buy a subscription to my Tech and Online Culture newsletter, User Magazine to support my work!!!! 🙏 https://www.usermag.co ***** Subscribe to my newsletter: ⁠⁠https://www.usermag.co⁠⁠https://www.instagram.com/taylorlorenz https://www.instagram.com/taylorlorenz3.0 https://www.tiktok.com/@taylorlorenzhttps://bsky.app/profile/taylorlorenz.bsky.social

Any kind of legal mechanism that allows somebody without the intervention of a court to get something off the internet is invariably going to be used for the same thing, which is somebody said something I don't like and I want it gone. For decades, content creators have fought against oppressive copyright restrictions on online content. Copyright claims are often wielded by powerful corporations to take down videos, suppress criticism, or stifle parity through rigid restrictions on online speech. But now a troubling shift is unfolding. prominent YouTuber has begun using copyright lawsuits to silence other creators' speech and commentary on his content. I think this moment marks a potential turning point in online expression. These legal attacks that were once used almost exclusively by powerful media companies are now being leveraged by big content creators to attack smaller content creators that they don't like. Today, I'm joined by

Meredith Rose, Senior Policy Council at Public Knowledge, a nonprofit promoting freedom of expression and open internet to talk about how copyright law and discussions of fair use are central to the fights over free speech in the digital age. Meredith, welcome. Thank you for having me. I want to start off by asking you, what does copyright law have to do with free speech? Can you explain how copyright and issues around free speech and free expression online intersect in our legal system? Sure. So copyright in its original design is supposed to incentivize people to create new expressive works. This ran into a bit of a problem when the internet really took hold and rights holders were finding their copyrighted work popping up left and right on different websites. And so as part of this

sort of grand bargain that was happening between tech platforms and rights holders at the time, we implemented this system called the Digital Millennium Copyright Act. And people are probably most familiar with this in the context of takedowns. And one of the provisions of the DMCA essentially says that if you as a rights holder find your work somewhere, you can send a notice to the platform and say, that is mine, and whoever has uploaded this does not have the rights to it. And the platform is obligated to take that content down. And so what has actually happened with the DMCA is though it was designed to allow rights holders to police the use of their copyrighted content online.

What it has ended up being in practice is a way for people to get things that are unflattering, or that they don't like removed from the internet. So it's a very, very powerful tool, and it's just very widely abused. Was there concern about abuse when it was enacted? And have there been any major legal challenges trying to kind of deal with this issue? So I don't know that anybody expected the degree and the pervasiveness of abuse that's actually happened. Also because, you know, the law was passed in 1998, and I think folks were still, didn't really appreciate just how huge and transformative the Internet was going to be. And there have been a lot of debates since then.

Unfortunately, the way that lawsuits have gone on under the DMCA has really actually removed more of the protections that were supposed to exist for uploaders. So classic example is the law has a provision which essentially says that you must consider, if you are a rights holder, before you send that notice, you have to actually make sure that it's not a fair use, that you can't send a frivolous notice just to do exactly the kind of thing that we keep seeing, which is to take down content that is perfectly legally fine. In practice, what has actually happened is that courts have said, well, you need to think about

fair use. And fair use is so complicated. We really can't ever say that your guess was wrong. And so functionally, it's kind of a dead letter. And there really aren't any penalties for sending abusive takedown notices, which is why we've got the situation that we have today. sort of, I guess, like, role does intentionality play with copyright law? You know, if you encourage someone, for instance, like, remix your songs and you put it out there and say,

remix my song and then people remix my song and you try to like copyright claim on them, like, does that play any sort of role or is the law pretty to the letter? There's this concept called implied license, which is essentially somebody told me I could do the thing or they put it out there specifically with the intention of somebody else using it. So good example is During the peak of the Drake and Kendrick feud last summer, I think it was Metro Boomin put out the BPL Drizzie beat and essentially said, go forth and use this one, and I'll promote the one that I think is the best, which was, for one thing, it was a fantastic time to be online. That was arguably one of the last high points of 2024. But that's an implied license, right, where he says, go out and do this thing, you know, or if you know, if you just release a beat on SoundCloud and presumably other folks are going to go back and add things on top of it. This actually came out weirdly in a case around tattoos.

My recollection of it was that an NBA player appeared in an NBA 2K game, complete with tattoos, and the tattoo artist sued and said, that's my design. You can't reproduce it because I have a copyright on the design. And I don't recall if it actually made it into the court fight, but one of the common lines of thought among the copyright nerd set was that when you put a tattoo on someone's body, you're giving them an implied license to display it out in the world. True, I guess. You're putting your artwork somewhere visible for the whole world to see.

And it was broadcast on, you know, live games all the time. Like, this thing's reproduced all the time. So, yeah, there's an implied license when you put art on someone's body. The DMCI staff, I feel like most creators learn about it through having their content taken down. And it seems like it's been really abused by these big companies. Like, I don't know, you included a Disney clip or some Warner Brothers material that you were reacting to. And it was sort of immediately removed. Now we're seeing, it seems like, content creators themselves.

sort of enact copyright claims on each other. Have we seen anything like this before? Not that I am aware of, but with the caveat that I don't really follow YouTube or communities very closely. We have seen, obviously, instances of, you know, the sort of joke is that the DMCA is a keep my name out of your mouth cause of action. We have seen it a lot to take down criticism that is like very, very spurious copyright claims. So, YouTuber Lindsay Ellis kind of was on the receiving end of this famously when she was. actually commenting on a different copyright lawsuit that was a debate about who owned, quote unquote, the concept of the Omegaverse trope in fan fiction. So there was a lawsuit between two creators.

One of them claimed that really she had the rights to this Omegaverse trope. Lindsay Alice came in and included clips of her reading from the book. But she makes very substantially long YouTube videos. And these were a small part of it. And mostly she was just poking at the concept that anybody was fighting about this. And then she got a take down notice from the author whose argument she was poking at. And then she got to do another YouTube video about how she had gotten DMCA'd for criticizing someone else. So it really does become kind of a snake eating its own tail.

And really any kind of legal mechanism that allows somebody without the intervention of a court to get something off the internet is invariably going to be used for the same thing, which is somebody said something I don't like and I want to it gone. Well, that's why I want to kind of dig into that a little bit more because I feel like a lot of people online in light of all these YouTuber things have said, this is not about free speech and this is not about free expression. And it seems like most copyright is not a lot, certainly a huge amount of it, right, is about speech and expression. And like you said, you posted something that I don't like or you posted criticism or political commentary that I don't like. So can you talk a little bit just about that and sort of like how this stuff can be weaponized to silence specific speech or political views, things like that? Sure. So the extremely lawyer answer to that is that

copyright is really in tension with the First Amendment, right? Because copyright is fundamentally a way of restricting speech. And specifically, it says you cannot replicate exactly the speech of another person under these circumstances. That obviously creates some issues. Fair use is often referred to as the safety valve that lets copyright and the First Amendment coexist. And so fair use essentially says, well, there are certain kinds of direct quotation that we actually think are okay, either for strictly legal reasons or historical or cultural reasons. So Americans love their parody. They really need the ability to make fun of elected officials, for example. If you tried to take, you know, the Daily Show or sort of our satire news programs away from people, there would be a revolution. And so copyright has to allow for these kinds of criticism, commentary, often newsre

reporting, you know, we'll have to be able to quote people directly. And so that's how we tried to square that circle. Now, in practice, a lot of this comes down to whether a judge does a sniff test on it and thinks, I think this seems valid or I don't think this seems valid. And a lot of cases, it's, do I think this party's a jerk or do I think this other party's the jerk? And so you've had some some personalities losing copyright cases, sort of based on just the force of, you know, the gut feeling that we may not be able to articulate it, but we really don't like what they did here. Yeah, I saw somebody posting yesterday some YouTuber fan that was like, you know, reminder, judges are people. Like, these are human beings making these judgment.

These are not just like AI algorithms that, you know, follow the law to the letter. I mean, they do follow the law. But, you know, there is judgment involved in being a judge. And I feel like it'll be interesting to see how these cases play out. I feel like the legal system, especially around speech, is often weaponized where it's really just, I mean, I'm a journalist. So I've been sued for defamation before and very frivolously where they know that. they're going to lose, but the goal is to kind of drain your money, you know, smear you, attack the New York Times or wherever I was working, Washington Post. So I guess I'm wondering, in some cases, have you ever seen copyright lawsuits be used just

to sort of punish someone where it's like, you're going to have to take the legal resources now to defend yourself and that in itself is a deterrent to speech? Yeah, for sure. Copyright lawsuits are ludicrously expensive. It is a very intricate, you know, set of law. It's deeply arcane. And I say this as someone who spends her 40 hours a week thinking about it, it is massacism. But the reality is that things like fair use, in particular, the way it's structured are you only can definitively know if something is a fair use once you get in front of a judge, and the judge makes that call.

And so we actually see copyright being used for, you know, not just silencing speech, but trying to carry the weight of a lot of things that it was not designed to do. And so we end up dealing with copyright law when we're talking about everything from making books accessible to the blind all the way down to being able to fix your tracks. all the way to you said something on YouTube that I don't like. And the actual test for things like fair use are wobbly. You know, it's a four-factor test. The only way to be sure, though, that something is a fair use is if you're following more or less exactly the pattern that has happened in a case that has happened before. You know, a lot of these sort of frivolous DMCA takedowns, because they're frivolous

tend not to make it all the way to court. Defamation still seems to be the weapon of choice in those cases, but it is a really kind of interesting crossover point with things like slap lawsuits, these strategic lawsuits against public participation. They're complicated. They're huge. They're extremely frightening to be on the receiving end of damages for copyright infringement. The statutory damages are $150,000 per infringement. So you can stack up very quickly when you run into these things. Yeah, it's terrifying. I mean, I started as a blogger, and I remember this was a conversation even back when I started blogging because people, you know, you would take certain parts of articles

and repost them. And there was always this concern of like, well, is that news organization, am I adding enough commentary that this news organization is not going to come for me somehow? You mentioned the anti-SLAP protection. Can you explain for people that don't know what anti-slapped does, how does it function? And has it ever been used as a defense in a copyright suit? So SLAP is an acronym. It stands for selective lawsuit against public participation. And the idea is, this is the sort of fancy legal term for nuisance lawsuits that are designed to get people, people to shut up. And so we see these a lot with defamation lawsuits in particular. There are things called anti-SLAPP statutes. They usually exist from state to state. So some states

have them and some do not. Some of them are stronger than others. But the sort of essence of an anti-SLAPP law is that it allows for an earlier off-ramp, where if you are commenting on something that is sort of a matter of public interest, and this is speaking very generally, because, again, every state has their own, or some states have their own, that if really this is a lawsuit that is just designed to shut you up, then there's an early off ramp so that you don't have to go through motions and discovery and all the added expense of having to go through these lawsuits. Texas has actually one of the strongest anti-SLAPP provisions in the country, which is, I feel like, kind of surprising to a lot of folks. It was definitely a surprise to me. No shade to Texas, but I did not

expect that. California's got a pretty strong one as well. I know New York and Virginia have them of sort of mixed success. And there's been kind of talk for years about whether we need a federal anti-SLAPP statute. I know Ron Wyden was trying to introduce. I think it's in committee in Congress. It's called like the Free Speech Act or something, but it has not made it anywhere. I, yeah, I'm not hopeful with this Congress and this administration, which is a big fan of using lawsuits against critics, not super hopeful that this would go anywhere this time. Have you ever seen a successful sort of anti-slop claim in terms of copyright law? I have not actually. Again, they tend to come up more in defamation, but I have not seen anti-SLAPP used in the copyright context.

The copyright cases that tend to get litigated for longer and tend to, you know, like sort of make their way up to circuit courts, tend to be more sympathetic cases, frankly. And so there's a lot more of a trail on that. So there was a famous case, Google v. Garcia, which had to do with a woman who essentially answered a casting call. It was sort of like, it might have been like even a want ad on Craigslist. looking for actors to star in a historical period piece. Then she showed up and she set a couple of lines and, you know, kind of went about her day. And then the movie showed up on YouTube and it was essentially an anti-Muslim screed, and they had overdubbed her voice so that she was saying something about the prophet Muhammad.

And she got death threats for having been in this. And she did not know. And so they attempted to use the DMCA to take down this thing saying, I was in it. I have a copyright in my performance. And I didn't consent to this being up there. Frankly, it was a terrible situation. But copyright was not the route to get that to happen. And we ended up, I believe it was at the Ninth Circuit where they finally said, like, this sucks.

But this is not the cause of action you need to use to deal with this. So we tend to see it more in situations like that. But I am not aware of a situation where copyright and anti-SLAPP have really collided. And that's partly because it's a federal case. So it always goes through federal courts. And anti-SLAP are state level. There's actually an open question. about whether or not state anti-SLAP can apply in federal court.

I think the answer is different in different circuit courts. So it depends on where you live. It's a whole complicated morass that, you know, lawyers keep themselves employed. Another reason we need federal anti-slap. How would a content creator know what's fair use? I mean, how are they supposed to determine when they're uploading something, especially if they're slightly altering it and thinking, oh, well, this counts as parity or this counts as, you know, valid commentary?

Like, how are they supposed to make those determinations? It's a hard call, and frankly, a lot of lawyers have a hard time doing it. That's why we have to settle it in the courts. As a general rule, though, things that are criticism or commentary are considered to be more strong fair use cases than others. And the more criticism and the more commentary that you inject, usually the safer you are. Things like parody, which unfortunately has a very specific legal meaning, are considered to be sort of the quintessential fair use that fair use is designed to protect.

But as a practical matter, yeah, a lot of creators are kind of left rolling the dice on whether or not something is fair use. And if you do find your work taken down, in a lot of cases you have the option to file a counter notice, which says, actually, I think this work is fine, and I wanted to go back online. But as a practical matter, those are kind of terrifying to file. They usually have lots of all caps print on the bottom of them saying, the next step after this is a lawsuit if the person who issued the takedown notice really wants to fight it. And a lot of folks get deterred.

And that's even if they have the option to file a putback notice. So places like Twitch, for example, doesn't have any mechanism for putbacks in a lot of cases. You can appeal a decision, but there's no DMCA counter notice that's really baked into the system. And so it's this perfect storm of platforms feel like they have to take stuff down, but there's no penalties for them not putting it back. And creators are, you know, I think understandably a little bit skittish about fighting these things. You mentioned fair use earlier and these sort of four qualifications.

Can you walk me through what those four are? Yeah. So it's a four-factor test to actually make sure that it's fair use. So the first one is the purpose and character of the use, which includes whether it's commercial or whether it's nonprofit. This has been, this is often called the transformativeness prong. How much are you transforming the work from what it was originally to the new use? This is the subject of tons of debate.

The Supreme Court weighed in on it recently and kind of shook up everything in that first factor, so that one, that one is sort of widely acknowledged to be messy. The second question is the nature of the copyrighted work. So nonfiction, because nonfiction is essentially like depends on restating facts and facts are not protected by copyright law, nonfiction tends to get thinner copyright protection, so it gets a little less deference towards protecting it because, again, if it's facts, you can't protect those. The third factor is the amount and substantiality of the portion used in relation to the copyrighted work as a whole. So did you take the whole thing? or did you just take a snippet?

And the fourth is the effect of the use on the potential market for or value of the copyrighted work. And this is what people tend to think about when they think about whether something is fair use. You know, the question is, am I making money off of it? And if I'm making money off of it, it's not a fair use. Which is not true. One of the most famous fair use cases and the one from which a lot of modern fair use thinking flows had to do with two live crew, a hip-hop group doing a song, Pretty Woman, which sampled the Roy Orbison song, Pretty Woman. was a parody of it in a lot of ways. And they made money off that. And that is considered to be one of the quintessential fair uses. So you take all of these four factors together and you sort of weigh them,

little scales and you hem and you haw. And then the judge has to kind of sum up all of the factors and make a decision on it. But again, you know, a lot of these things are like the transformativeness prong. Like, well, what does that really mean? Everybody's kind of a slightly different like view on what is transformative or what is not. Judges are going to think certain things are more creative or less creative, often depending on their biases about certain kinds of creative works. And so it gets really messy and it ends up being not only fact-specific, but sometimes judge-specific about how you want to argue these things. I think it's so interesting, too, just like the norms that have been set, especially as live streaming has taken off and more and more people,

I mean, IRL streams, but these reacting streams on Twitch are increasingly popular on YouTube where people sort of just react to other people's content or commentate on it. And I guess I guess I'm wondering, like, have you seen copyright law affect these fan communities and this, like, remix and reaction culture? Oh, yeah, absolutely. Copyright law and especially fan communities and what's called, we call it transformative fandom now. There's a long history there. And so one of actually the biggest organizations working on this is the organization for transformative works, and they run archive of our own, which is a huge fan fiction archive. And I get this question a lot. I do a lot of talks at like DragonCon and other fan communities.

And I got a lot of questions about, like, well, is my fanfic a fair use? What if I make cosplay? What if I sell cosplay accessories? What if I sell fan art? And the answer is almost uniformly that there is a difference between your legal risk and your practical risk, that a lot of companies have decided, either that they're going to crack down on use of their products, even if they don't win, bringing the lawsuit is going to be usually enough to get somebody to stop doing it, or that they benefit from having this active fan

community and active fan engagement and that they're just going to let it go. And sometimes they draw lines sort of informally around what they are and are not comfortable with. So not in the US, but in Japan, there was an interesting case where, you know, somebody actually got sent to jail for making a fan comic. It was a Pokemon fan comic and it was pornographic. So that was the line. There's sort of an unofficial blacklist of, you know, you don't do fan comics of Disney properties

and Nintendo properties and Pokemon properties. And so a lot of it is this sort of social norma. really more than the law. And fanfic has not been litigated mercifully, because I'm not sure anybody wants to stick their neck out enough to get that risk. But yeah, it is a constant threat. And I think the fact that people don't understand fair use, and I say that most lawyers, most copyright lawyers, won't pretend to understand fair use.

We're all sort of, you know, reading tea leaves. But it's scary. And I think people, you know, try to rely on these soft norms to change their behavior rather than what the law actually says. talking about Pokemon and Disney at some of these other companies. I think it's so interesting. I think of, I've done a bunch of reporting on Skibbitty Toilet. I don't know if you're familiar. My 8-year-old has educated me about Skippity Toilet. I, you know, I interviewed the guy who works with the creator and owns all the IP for Skibbity Toilet, and they monetize Skibbity Toilet and

sell the merch, develop these games and all these things. And he said actually that they don't really pursue copyright claims. They get really excited when they, they've always actually really encouraged people to make their own versions of Skibbity Toilet. Because it's sort of the way the internet works, Like the more people are talking about something online, the bigger the like brand becomes. And I actually do know one creator who did make Skiddy Toilet Point. I don't know if it's quite on their radar yet. So I don't know if that's been litigated. But I think overwhelmingly he was saying it was actually kids that were fans of Skibety Toilet and wanted to make their own stuff.

So yeah, I think it's kind of interesting these different perceptions. I would say Skibbity Toilet. I mean, it's being made into a Michael Bay movie now. It's about to be, you know, it's like sort of this modern IP versus, you know, maybe the old Disney way. of like cracking down and trying to control things. Yeah, and so much of it is really just dependent on the creators and the context in which they kind of came into creating. So it's very interesting to watch, you know, I deal a lot with the music industry, which has like very specific ideas about what needs to be licensed. And those very specific ideas are everything needs to be licensed.

You know, and that went through an adjustment period when hip-hop and sampling culture came up. And the lawyers won. And now you have to, you know, pay for every sample, even if it's a fair use. Contrast that with video games, where you have companies like Valve, and Valve is sort of famous for really enjoying mods of their games, and sometimes hiring the people who make the mods for their games, because the folks who formed Valve came out of a modding community. And so that's where their priorities are. And then you have a lot of these digital native creators who are just really into the fact that there are fan communities. You know, on the other end of the spectrum, there are a lot of print authors who have very well publicized, not great fused about fan fiction. which actually in a lot of cases, you can trace back to one particular instance where a famous fantasy writer used to actually collaborate with her fans. So she would release essentially a zine of, or like, you know, short story compilations and invite other people to write in the world.

You know, you can see old Star Trek fan fiction that was bound and printed and sold and had forwards by Gene Roddenberry, who was like, this is great. I love that people love this. So this author, you know, collaborated and would, you know, often give credit to some of her fans when she published a new mainstream novel. She would say, you know, with like an additional creative credit to insert fanfic author here. That came to a head when there was a dispute with one of the fanfic authors who then claimed that the sort of canon author had stolen essentially the plot of one of the fanficks that she had written and then threatened to sue the canon author over it. And so that was when the sort of detente was reached of authors do not read fanfic of their own work because that is a legal exposure for them. And so, yeah, it's this like very complicated relationship. Star Wars has been trying to navigate this for like 40 years at this point and they're still kind of working on it. I'm thinking too of these reaction channels where I feel like traditionally people have wanted other creators to react to their content because it sort of elevates the original content.

I had a video recently that some big content creators like essentially just watched on their stream, but it made people interested in my channel and actually really boosted the views. And so I feel like there's this culture of like, creators being like, please react to my work. Like, please let me know what you think. You know, please talk about it on your stream or whatever,

you know, just to sort of like get the word out there. In this case with this big YouTuber, suing the smaller YouTubers, you know, he actually has encouraged people to react to his work. But now he's saying, hey, you stole my views. You stole my views and you stole my money because you sort of didn't like, talking about it wasn't transformative enough. And I'm wondering what effects that might have on like commentary culture just generally. Because I feel like how can you know how much commentary you're

going to have on a piece of content until you react to it? I mean, maybe you'd have to sort of pre-react ahead of time and sort of plan out commentary, make sure you have enough to say. It seems kind of sticky. Yeah. And it's definitely doubly sticky when the reaction is being done as a live stream and you may not know in advance exactly. Or, you know, as apparently one of the streamers had to get up and take a bathroom break, and apparently that was offensive because she left the stream running while the chair was empty. Yeah, I mean, it's hard to know, right? There may not be a lot of there there. You know, I always sort of used the example of on one end of reaction videos you have, and I confess, I really enjoyed these as an aging millennial. Younger Gen Z reacting to whatever pop hits were, you know, popular when I was in high school,

where it's just, you know, a guy in the corner kind of bopping along to whatever. I still enjoy those. And on the other end, you have Dustin Pointer, who's the red flag green flag guy. who will take videos of people in their relationship dynamics and race across the field with a giant red or green flag and sort of dunk on people as necessary. It's hard to predict exactly how folks are going to react to this. But I think the sort of takeaways from it from a lawyer perspective is more commentary is better, maybe pre-record it, maybe live reacting is in it. And also, you know, something maybe to avoid is saying things like,

watch my reaction video as the ethical way to not give ad revenue to the original, which does actually start running into copyright law rationale around fair use. You know, when you've accidentally touched directly on the fourth factor of fair use, you know, maybe you want to avoid doing that. I mean, I think of this actually with cable news where I, and it's not like I'm trying to starve CNN of revenue, but I don't pay for cable news. And I feel like I increasingly watch it through Twitch streams or live streams. Like when something happens, they turn into these YouTubers that are essentially just streaming CNN or streaming cable news. And I'm interested how news companies will handle that or if they will crack down. I mean, in some ways, it's amplifying their coverage and bringing them to a new audience of young people.

Yeah, I don't know. I feel like there are different mindsets even I've spoken to people within these cable news organizations of like whether or not this is a good thing and whether they should be happy or crack down on, you know, people streaming content. That's got the added complication of it's the news. It is necessarily newsworthy. I mean, we can argue about whether a lot of things that are on the news are actually newsworthy or not. but I don't think they want to be arguing that what their airing is not worth airing. And again, going back to earlier, copyright law and fair use is just as culturally determined in a lot of cases as it is, you know, in terms of what we prioritize and what judges think should

really be allowed. And the ability to respond to newsworthy events is like a big part of that. And so one of the like classic fair use cases had to do with exerting a political biography to respond to it. These are things that are important and judges are just generally going to be a little more favorable looking on, you know, people sharing their important or not important views about the news of the day, rather than if they're doing a live reaction to, I don't know, the new live action Lilo and Stitch. It's probably going to get a little bit less difference. I worked at a news organization too one time where they were trying to get content creators to react to our articles and content being like, please talk about us. We are still

relevant, which I think is interesting too because, yeah, I mean, it's newsworthy, but I think they wanted even the evergreen content to just sort of like make it out there because the more people talking about it goes back to it like the more relevant and the more I guess yeah the more notable the story in terms of like this copyright stuff too I mean I wonder if there are any sort of reforms in place to protect speech you mentioned that a lot of the court decisions have actually sort of eroded protections for speech but I don't know if there are any efforts that people can get involved with to protect speech I mean I just feel like free speech online is being eroded so much and all over the place these days yeah the attack is more or less constant and I will say a lot

of it is that most of the industrial players, frankly, are, you know, their incentive, if anything, is to, like, limit the ability of folks to speak freely online, not necessarily due to, like, maliciousness, but just because they want to cover themselves and their pocketbooks in a lot of cases. You know, and I think some of the threats right now are coming through things like AI legislation, especially specifically, you know, we're tracking bills. There's this bill called no fakes, which is an attempt to, you know, create, essentially create a licensing market for folks to license out their likeness, but it has a takedown and a stay down provision, which is like the DMCA on steroids, in which you can claim that any video is a deep fake of you, and it'll

disappear. And there's no way to get it put back. Technically, there's a thing that says, we are telling you right now, you cannot use this for fake claims that something is a deep fake. Oh, I'm sure that'll totally stop people. That'll definitely stop a lot of folks. And the only way to vindicate that is for the person whose content got taken down to sue the person who sent the note. It's just, it's a nightmare. But again, it's being written by industry. It's being written by the RIAA and negotiating against the motion picture industry.

You know, actual speech concerns aren't at the table in a lot of cases. So, I mean, that's the problem is like a lot of speech stuff is just on the defensive, sort of by nature. And so, you know, definitely, it's a big ask to ask anybody to follow more news nowadays, but I think keeping an eye on AI-related stuff in particular, because that is the new hotness that everybody wants to talk about and everybody's kind of panicked about. And the upshot is that in panic, we sometimes get some really bad ideas through. And, you know, just keeping a critical eye on that is going to be really important. As somebody that's fought so aggressively against a lot of, like, I feel like before AI was social media and they were using social media to crack down on speech. And I've talked about these, like, laws aimed at, like, protecting child influencers that are really just will censor local news footage or like things like the Kids Online Safety Act, which I hate think is bad. But, you know, I feel like there was a moral panic around like social

media and kids where there was a lot of really bad speech, sort of restrictions on speech being placed because of this sort of panic. And now I feel like it's significantly moved to AI, like you said, where I think a lot of people are rightfully concerned about AI in different ways, but it's sort of being used as a pretense to pass stuff. I covered the Take It Down Act recently. I don't know if you're... Oh, yeah.

No, take it down was an interesting case. And it's, you know, and this is the thing. Like, right, there are legitimately, absolutely awful things that are happening and things people are using AI for legitimately awful, like, stomach churning reasons. The question is, what problem exactly are we trying to solve? And I think when something like, you know, you have problems that grotesque that start coming up, people don't stop and try to define the limits of what you can solve all at once. And so, you know, this is, we've seen copyright law sort of dragged out as like, this is going to be the last bastion to stop artists being mass unemployed through.

And it's like, whoa, copyright was not designed to carry anything close to that way. And, you know, and so take it down was actually interesting. because it was like a profoundly flawed bill in a lot of ways, but at least it kind of scoped itself in a specific way, saying we are trying to attack this specific problem. For people that don't know, it's about sort of revenge, like deep fake revenge porn, essentially. It's a non-consensual imagery, I think, is one of the terms used to refer to it. NCI-I-I, yeah. But things like no fakes are attempting to address the concerns of, you know, actors who I think are rightly worried that if they have to sign away their likenesses to studios,

They're just going to be background. They're going to be CGI background actors, and there goes, you know, most working actor gigs. Voice actors who are going to get paid to record 10 hours of dialogue for a video game, and then AI is going to make another 90 hours for which they're not paid. A lot of like very legitimate concerns, but then also it's extended to everybody. And I have a very different threat model than you have a different threat model. Then, you know, Matt Damon has a different threat model. Lady Gaga has a different threat model. You know, we're all concerned about very different things and like trying to address those things all at one.

is just going to unleash the floodgates of some really bad ideas. There's also this point in this YouTuber's lawsuit, I think, where he mentions, like, misinformation. And what role does, like, misinformation play in copyright law? Yeah, it has nothing to do with copyright law. If anything, you know, fictitious statements are creative and those are going to be protected more by copyright law. But it is a weird example of, again, copyright law being asked to carry water that it was not designed to carry. Like, copyright law is not an anti-misinformation statute. It's not designed to counter the spread of libel.

It was not designed for that. And so it was an interesting choice to put that in there. I don't think a copyright lawyer would have put that in there expecting to get anything out of it. I think probably to the extent that it's in there, it's just because he wants it on the record that he thinks she was lying. So it's definitely not going to help his copyright case. I think it'll just be so interesting to see how these lawsuits represent. across the content creator community and the commentary community. And one thing that I know a lot of YouTubers and content creators have been aligned on is actually against

copy striking, copyright. It's sort of like the worst thing you can do is like copy strike someone because there's this idea of like hating the DMCA, hating these like copyright owners that try to get YouTube taken down. And now I think if we start to see bigger YouTubers attacking smaller YouTubers or smaller YouTubers attacking bigger YouTubers like using these copyright law, I don't know. I just think it'll be a really interesting kind of potentially terror terrifying, you know, shock to the system. I don't think we've had creators kind of try to leverage this law against each other in this way before.

Yeah, definitely not at this level of visibility, I don't think. But yeah, again, this is one of those things where fair use, it's like fandom communities. Fair use is wobbly. And so social norms step in to fill the gaps, essentially. And they guide how people's behavior operates. And I think, you know, as much as anything, you know, like you mentioned, YouTubers really don't like the DMCA. And it's very frowned upon to copy strike somebody. And so there's a lot of, you know, the law doesn't exist in a vacuum, right? It is informed by how people act, and there's frankly a lot of social pressure that keeps people from bringing suits even when they can. Disney could crack down on everybody selling a Captain America Shield at DragonCon, and they don't,

because the publicity is better than the money they get out of the lawsuit. You don't want to be the bad guy and you don't want to make your fans and your audience mad at you. So we'll see if that holds up this time. I pity the judge that has to learn about, you know, the YouTube drama, a Twitch reaction community. In terms of just like speech law and copyright and all this stuff, like, how do you think people can best educate themselves on these issues? Where can people learn a little bit more about kind of these topics? I would say definitely follow folks, I mean, obviously, selfishly, I think public knowledge

does a lot of good stuff in copyright. But the Electronic Frontier Foundation EFF blogs and posts quite a bit about copyright law. They have been on this beat from the beginning. And they're very smart and they do very fast reactions on these things. And they will often do like, you know, creators know your rights type webinars and outreach and things like that. Meredith, thank you so much for joining me today. Well, thanks for having me. All right, that's it for this week's Free Speech Friday.

You can watch full episodes of Free Speech Friday on my YouTube channel at Taylor Lorenz. Also, don't forget to subscribe to my tech and online culture newsletter, usermag.com. That's usermag.com where I write about all of this stuff and more. I'll be back next week with a brand new episode of Free Speech Friday. See you then.