I wish that subject line were a joke.
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 then 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.
One of those video takedown victims was John Underwood, a Los Angeles area retiree who produces public access television and has, for the past several years, been posting videos of Shakespearean performances by a local non–profit troupe called Shakespeare by the Sea to his You Tube channel. When he received notice that two of his recordings (of The Taming of the Shrew and All’s Well That Ends Well) had been removed pursuant to Coallier’s takedown notice Coallier’s takedown notice, he promptly sent YouTube a counter-notice, as the DMCA contemplates, and assumed that would the end of the matter. After all, he reasoned, Shakespeare is in the public domain, and besides, Shakespeare by the Seas assured him that it had not relied on Coallier’s claimed version of the Shakespeare plays in crafting the script for its performances; indeed, Shakespeare by the Sea had never heard of Coallier or seen his supposed copyrighted versions of Shakespeare, and hence could not have copied them.
Even so, YouTube, ignoring the DMCA’s procedures, refused to honor his counter-notice or even forward the notice to Coallier so that Coallier could file suit for copyright infringement. Instead, it issued a copyright strike against Underwood’s channel and told him that he would have to work things out with Coallier. And somehow, matters got even worse when Underwood and one of his colleagues reached out to Coallier. 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. He pointed Underwood to WilliamShakespearePlayWright.com, where he sells “playright” licenses for a minimum of $249.00 (Canadian) per year plus 5% of the gate for licenses by colleges and universities. Professional or festival organizations, like the troupe performing in Underwood’s videos, are charged $574.99 per year to perform Shakespeare plays. After we agreed to represent Underwood in fighting back against Coallier, I spoke to several other takedown targets who similarly had their counternotices ignored for months.
Our Efforts on Underwood’s Behalf
After we agreed to help Underwood fight back against Coallier, I reached out to YouTube’s legal team, and they in turn communicated with the YouTube staff which promptly accepted Underwood’s counternotice and forwarded it to Coallier, who unsurprisingly did not then risk a judicial rebuff by suing Underwood for infringement. At the same time, I spoke to several other DMCA takedown targets of Coallier, who similarly had their counternotices ignored, then accepted only after a lawyer was able to get the attention of YouTube’s legal staff. But it shouldn’t take a letter from a lawyer to get YouTube to honor counternotifications.
Indeed, one might well wonder why the Copyright Office was willing to grant Coallier’s copyright registration in the first place. I asked the Office for the deposit copy for the copyright registration, and received by mail, two months later, a hard copy of the text of TWO of Coallier’s supposed translations of Shakespeare – Midsummer Night’s Dream and Antony and Cleopatra. These were, I was told, the only deposit copies he 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. Because there was no deposit copy of either of the two plays subjected to the takedown notice, we did not compare Coallier’s supposedly copyrighted texts with the recorded performances of The Taming of the Shrew and All’s Well That Ends Well. But we were able to review Coallier’s “translation” of Midsummer Night’s Dream and compare it to view the recorded performance of that play (Underwood had never posted a recording of Antony and Cleopatra). Coallier’s translation was a mess – he misstated a number of the more obscure words appearing in the Shakespearean original, and in a number of cases he attributed words spoken in the original to different characters. None of those mistakes were replicated in the recorded performance, so it was simply not possible that Shakespeare by the Sea was copying Coallier’s work. Not to mention that, as noted above, Shakespeare by the Sea first performed The Taming of the Shrew in 1999, well before Coallier’s 2012 copyright registration.
Moreover, we have provided the deposit copy to a Shakespeare expert, Jan Powell, to get her evaluations of Coallier’s work. (Thanks to the Reed College alumni network for this connection). 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. If, in fact, Coallier took his “translation” straight from the Moby edition of Shakespeare’s plays, as his registration implies, that confirmed her opinion considering the low regard in which serious Shakespeare professionals hold that version. (She will present a full opinion in the course of the litigation). This analysis provides further support both for the assurances from Shakespeare by the Sea that it did not use Coallier’s work in creating the scripts for the performances that Underwood has recorded, and for Underwood’s accepting those assurances at face value.
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.
Some Broader Implications
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. And a note for the Copyright Office: when it takes two months to provide a deposit copy, victims of excessive copyright accusations facing short deadlines cannot effectively protect themselves.
Although legally speaking, Shakespeare is in the public domain, it appears that mistakes by both the Copyright Office and YouTube have impeded the public’s access to these works. Coallier was able to exploit these gaps, suppressing public access to Shakespeare in the hope of extracting “license payments” for use of Shakespeare’s work.
Counsel (and our expert witness) are appearing pro bono in the case. Because Underwood is on social security, and derives no income from his YouTube channel, he needs help from the public to cover the out of pocket expenses of the litigation. He has posted a GoFundMe appeal to that end.
