In response to Anime News Network filing a copyright DMCA strike against his channel, anime Youtuber Hero Hei has now hired attorney Nick Rekieta to represent him in his appeal against the strike.
On May 2nd, Hero Hei posted a video to his channel wherein he provided evidence that anime news site Anime News Network (ANN) had filed a Digital Millenium Copyright Act (DMCA) strike against a video titled “Vic Mignogna Anime News Network Interview Critique w/ Chat” (the thumbnail of which can still be seen in internet archives of Hero Hei’s YouTube page):
In the video struck by ANN, Hero Hei discussed a 2013 interview with Dragon Ball Super: Broly voice actor Vic Mignogna conducted by ANN as part of their ANNCast podcast. In the above video, Hero Hei clearly displays the notification he received from YouTube, wherein Anime News Network, Inc. is listed as the party responsible for issuing the copyright strike.
As a result of this copyright strike, Hero Hei stated that the strike would prevent him from live streaming, and thus impact his financial security:
“Due to this copyright strike, I’m now unable to stream for possibly up to three months. Most of the revenue on my channel comes from livestreaming. For every day I can’t stream, due to their copyright strike, I am incurring damages, accrued daily. I can prove those damages in court if need be, and I am already working on disputing this strike, because I strongly believe that my content, that they disliked, is protected under fair use and there are a number of other reasons why that content should be protected. But, an attorney can do a better job of explaining that then I can, and that’s why, in my dispute, I have an attorney representing me.”
Following this strike, Hero Hei appeared on a livestream hosted by attorney Nick Rekieta on his channel Rekieta Law to discuss the implications of this strike.
Rekieta speculates that there are two reasons why ANN may have struck Hero Hei’s channel. The first is that ANN is attempting to intentionally damage Hero Hei’s finances:
“They know that a copyright strike against a YouTuber could mean up to 90 days of reducing their income, especially if any of that comes from livestreams. So, they’re going after you the only way that these types of people know how to go after you. They go after your money, right away. The first course of action. Anime News Network has not come out and said anything negative about any of us, but the first thing they do? They go right to your wallet and go ‘HAH, he can’t speak.’ And they know a way to do it, which is bogus and garbage, and they know what they’re doing.”
The other reason, Rekieta believes, is a roundabout attempt to ‘dox’ Hero Hei:
“When you get a DMCA take down claim, YouTube takes it down and they give you a copyright strike, right away, out the gate. It’s a broken bad system. There’s no review process. They just go after it. That copyright strike means you cannot livestream until the strike is resolved, either 90 days or you beat it on an appeal. What happens though, is to send a counter-notification, you have to insert either your own information or your agent or attorney’s information who’s submitting on your behalf. So the calculation is that, if they strike Hero Hei’s channel, he can dispute it, and even if they plan to fully release the dispute, they’ve got now, Hero Hei’s name, address, phone number, e-mail address. Now they can just go ahead and send that to MarzGurl [Author’s Note: This is in reference to MarzGurl’s recent attempts to dox YouTube critic YellowFlashGuy], he’s been fully doxxed, that leaks out, and then his information is either in the giant massive hands orbiting Marzgurl or it is leaked out to the internet.
In an attempt to protect Hero Hei from potential doxing, Rekieta then announces that he has filed the counter-claim with YouTube as a legal representative for Hero Hei, thus allowing Rekieta’s already-public information to be filed in place of Hero Hei’s:
“I am representing Hero Hei in this counter notification action. We have sent a counter-notification to ANN, and since I was doing it professionally, and not on behalf of myself, there’s no profanity or insults in there. If it was from me, it would probably be a little bit different.”
In support of classifying Hero Hei’s use of the 2013 interview as fair use, Rekieta cites a 2015 ruling by the United States Court of Appeals for the Ninth Circuit in the case Lenz v. Universal Music Corp. In this case, Universal Music Corp (Universal) attempted to issue a DMCA strike against Stephanie Lenz, who had used a Prince song (the catalog of which is owned by Universal) in a video she had uploaded to YouTube of her child dancing to the song. Ultimately, the court found that copyright owners must make a ‘good faith’ consideration of fair use before issuing a takedown notice:
We conclude that because 17 U.S.C. § 107 created a type of non-infringing use, fair use is “authorized by the law” and a copyright holder must consider the existence of fair use before sending a takedown notification under § 512(c).
Due to Rekieta’s counter-notification, Anime News Network has 10-14 days from the time of filing to file legal action against Hero Hei, otherwise the strike will be removed from his channel and the video will be restored.