YouTube Apparently Unsure If Shakespeare Is In The Public Domain

One of the darker threads of Walled Culture the book (free digital versions available) is how complex copyright enforcement systems can be abused, for example by sending Digital Millennium Copyright Act (DMCA) takedown requests for material that is perfectly legal. A recent post on the Public Citizen blog offers an extreme example of this blight. Here’s the summary of what happened:

When Julien Coallier sent a series of DMCA takedown requests contending that various print publications of Shakespeare’s plays, and YouTube videos of performances of those plays, infringed his purported copyright in those works, it should have been treated as a bad joke. After all, Shakespeare’s plays were published more than 400 years ago, and it is hard to imagine the[m] as being anything but public domain. Yet not only did YouTube take the demands seriously, it blew off those takedown targets who filed counter-notifications and who asserted their right to publish plainly public domain material.

There are several issues here. One concerns the cavalier manner in which YouTube dealt with this situation – sadly, by no means an isolated incident. As the Public Citizen post explains, one of the video takedown victims was John Underwood, who had posted on YouTube videos of Shakespeare performances by a local non-profit group called Shakespeare by the Sea. When he received notice that two of his videos had been removed because a takedown notice sent by Coallier, Underwood followed the DMCA rules, and sent a counter-notice. He not unnaturally assumed that would resolve such a clear-cut case, not least because Shakespeare by the Seas assured him that it had not relied on Coallier’s claimed version of the Shakespeare plays for their performances. But YouTube ignored the official DMCA procedures and refused to acknowledge Underwood’s counter-notice, or even forward it to Coallier. This was not a one-off: other targets of Coallier’s take-down had also had their counter-notices ignored by YouTube. So Underwood contacted Coallier directly:

In multiple emails, Coallier declined to explain why he thought Underwood’s videos copied Coallier’s “translations” of Shakespeare’s plays, despite being asked repeatedly. Instead, Coallier told them that Shakespeare is not in the public domain because he had been able to register a copyright in so-called English-language “translations” of every one of Shakespeare’s plays. Coallier also claimed that he can charge a five percent royalty on every performance.

This brings us to the second issue: how could the US Copyright Office grant Coallier’s copyright registration? The author of the Public Citizen post, Paul Levy, went to the trouble of obtaining copies of the copyright registration, and found that only two of Coallier’s “translations” of Shakespeare’s plays had been submitted:

Apparently, it was on on the strength of these two “translations” that the Copyright Office granted a registration of Coallier’s copyright in three dozen “translated” plays – tragedies, comedies and histories – without receiving copies of any of the other works in which the Copyright Office was potentially granting a monopoly.

As to what Coallier’s translation amounted to, Levy sent a copy of the Coallier’s work to a Shakespeare expert, Jan Powell:

It was Powell’s opinion that the translation was such a mess that no reputable Shakespeare company would perform a script based on Coallier’s work. In addition to the fact that Coallier’s scripts did away with the iambic pentameter that is the glory of Shakespeare’s plays, she found his “translation” to be a garbled mess.

Following the intervention of Public Citizen, YouTube suddenly started to respond. It accepted Underwood’s counternotice and forwarded it to Coallier, who did not sue Underwood for alleged infringement, as he could have done. Not content with seeing off this abuse of the DMCA takedown system, Public Citizen is going further:

This week, in concert with the Juelsgaard Intellectual Property and Innovation Clinic at Stanford Law School, we have sued Coallier seeking a declaratory judgment of non-infringement, and seeking relief for a DMCA wrongful takedown. Corey Donaldson of the Los Angeles area firm of Ferguson Case Orr Paterson is co-counsel in the case. In addition to securing relief for Underwood, we hope to spur the district court to invoke 17 U.S.C. § 411(b) to suggest to the Copyright Office that it reconsider its registration of Coallier’s copyright.

That’s good news, but it is utterly absurd that so much effort was required to deal with a situation that should never have arisen. The copyright in these “translations” of Shakespeare should never have been granted, not least because only two of the plays were submitted, and yet registration was granted for all the rest of them sight unseen. And YouTube should have followed the rules of the DMCA, which is in any case already strongly biased in favor of those alleging copyright infringement. As Levy concludes:

We also hope that YouTube will consider whether DMCA takedown notices should have to pass the laugh test before they are effected, and consider also how it responds to DMCA counter-notifications. Although I am grateful to the YouTube lawyers who responded so promptly to my inquiries, the system is not working as it should. Many YouTube content creators are hobbyists and amateurs, and do not have the same ability to reach a YouTube lawyer. Abuse of the DMCA for cheap censorship by bad actors who would never file a copyright lawsuit over their claims has long been noted (for example, this post from EFF, which sent Underwood to me for help). It should not take a request from a lawyer to get YouTube to follow the DMCA and counternotices seriously.

This extraordinary saga of takedown notices for performances of Shakespeare show that 27 years after it was passed, the DMCA is still not fit for purpose. The companies like Google that are tasked with implementing it often do so in the most desultory way. There is an underlying assumption that claimed infringements are valid, an injustice compound by an arrogant indifference to the rights of ordinary citizens who find themselves caught up in a complex copyright system that is stacked against them.

Follow me @glynmoody on Mastodon and on Bluesky. Originally posted to Walled Culture.