Fredy Riehl

Editor
Ammoland Shooting Sports News, Inc.
news@ammoland.com
PO Box 0465
Manasquan, NJ 08736
(732) 925-3647

DMCA Complaints
YouTube (Google, Inc.)
901 Cherry Ave.
San Bruno, CA 94066
copyright@youtube.com
VIA E-Mail and Fax: (650) 872-8513

Re:
COUNTER NOTIFICATION
Video Title: Katie Courics Under the Gun Director, Stephanie Soechtig,
Confesses to Federal Gun Crimes
Video URL: https://www.youtube.com/watch?v=DSHJSfHsvmw

To whom it may concern,

On Tuesday, June 7th, AmmoLandTVs YouTube channel1 received a copyright
takedown notice for the above-mentioned video. As a result, the video can no longer be viewed
online, and we have received a copyright strike on our account. We strongly believe this action
to be in error, as the video in question clearly falls under the definition of fair use and is thus
not an infringement of copyright. For the following reasons, we ask that the video be reinstated
immediately and the copyright strike on our account be removed.
AMMOLANDTVS USE OF THELITPTVS CONTENT CLEARLY FALLS UNDER THE
PROTECTIONS OF FAIR USE

I.

Under the law of the United States, the fair use of a copyrighted work . . . for purposes
such as criticism, comment, news reporting, teaching . . . scholarship, or research, is not an
infringement of copyright.2 Generally, four key factors are considered, which include:

The purpose and character of the use, including whether such use is of a commercial
nature or is for nonprofit educational purposes;
The nature of the copyrighted work;

https://www.youtube.com/user/AmmoLandTV.

17 U.S.C. 107 (emphasis added).

The amount and substantiality of the portion used in relation to the copyrighted work as a
whole; and,
The effect of the use upon the potential market for or value of the copyrighted work.3

AmmoLandTV published a 35-second clip of an interview between Stephanie Soechtig

and TheLipTV that was originally published on February 1, 2016.4 The interview, which is
approximately sixteen and a half minutes long, centers on a discussion of a documentary film
produced and directed by Ms. Soechtig titled Under the Gun. Presumably, the interview took
place for the purpose of promoting the film.
Since its release, the film has been heavily criticized by a number of news outlets for its
deceptive editing tactics, for which Ms. Soechtig was directly responsible.5 This led to further
investigation of the film, resulting in the discovery of Ms. Soechtigs interview with TheLipTV
by AmmoLandTV. Because Ms. Soechtigs statements indicate that both she and her films
production team potentially violated federal law, AmmoLandTV published a story about the
interview which included the 35-second clip in question.
These facts alone clearly favor a finding of fair use. Nevertheless, each of the factors
used in determining fair use are discussed below for your consideration.
A.

Purpose and Character of the Use

The use of the clip by AmmoLandTV is not for a commercial purpose. AmmoLandTV is
part of AmmoLand Shooting Sports News, a free news service that reports on a variety of topics
ranging from politics, news, and other firearm-related issues. At no point was it the sole intent of
AmmoLand to sell or otherwise make a profit by using the 35-second clip. Rather, the purpose of
the use was to directly quote statements made by Ms. Soechtig regarding the manner of her
films production, which AmmoLandTV then criticizes and comments on.
There is a strong presumption in favor of a finding of fair use if the use fits the
description of uses described in the fair use statute,6 even in cases where the user anticipates

17 U.S.C. 107(1)-(4). These same factors are also discussed in YouTubes own Fair Use Guidelines. See Fair
Use Guidelines, YouTube, https://www.youtube.com/yt/copyright/fair-use.html#yt-copyright-protection, last visited
June 8, 2016.
3

See Under the Gun: Mass Shooting & Gun Rights Documentary with Stephanie Soechtig, TheLipTv,
https://www.youtube.com/watch?v=MOhncnH9ezA (Feb. 1, 2016).
5

See, e.g., Erik Wemple, Audiotape: Katie Couric Documentary Falsely Depicts Gun Supporters as Idiots, The
Washington Post, https://www.washingtonpost.com/blogs/erik-wemple/wp/2016/05/25/audiotape-katie-couricdocumentary-falsely-depicts-gun-supporters-as-idiots/ (May 25, 2016); Stephen Gutowski, Audio Shows Katie
Couric Documentary Deceptively Edited Interview with Pro-Gun Activists, Fox News,
http://www.foxnews.com/politics/2016/05/26/audio-shows-katie-couric-documentary-deceptively-edited-interviewwith-pro-gun-activists.html (May 26, 2016).
6

Wright v. Warner Books, Inc., 953 F.2d 731, 736 (2d Cir. 1991).

profits.7 That presumption is especially strong where the purpose is criticism.8 Whats more,
when accurate reporting requires the use of verbatim quotations, as in this case, the fair use
doctrine will be liberally applied,9 no doubt more so where the issue is a matter of public concern
as with this case.10
In this case, Ms. Soechtig produced a film which argues in support of new laws requiring
background checks for all firearm purchases. In making this argument, Ms. Soechtig directed her
production team to purchase several firearms in Arizona. However, the statements made by Ms.
Soechtig in the interview demonstrated that the manner in which this was done violated several
federal firearm laws. AmmoLandTV thus sought to criticize her arguments in support of stricter
gun control laws given the potential violations she herself committed. As a result, because the
purpose of the use is for criticism and comment, this factor weighs heavily in favor of a finding
of fair use.
B.

Nature of the Copyrighted Work

The second factor primarily concerns whether the copyrighted work is creative or
informational. When the work in question is informational in nature, it weighs in favor of a
finding of fair use, allowing others to quote it more liberally under fair use privilege.11
Here, the work in question consists of an interview with Ms. Soechtig. Although it is not
entirely clear if this type of work is creative or informational in nature, the clip in question
consisted of factual statements relating to the manner in which Ms. Soechtigs film was
produced. AmmoLandTV used this clip with the intent of quoting Ms. Soechtig directly. In cases
such as this, courts have found this factor to weigh in favor of a finding of fair use.12 As a result,
this factor weighs heavily in favor of a finding of fair use.

Id. at 736-37; New Era Publns Intl, ApS v. Carol Publg Grp., 904 F.2d 152, 156 (2d Cir. 1990); Rubin v.
Brooks/Cole Publg Co., 836 F. Supp. 909 (D. Mass. 1993).
7

See, e.g., NXIVM Corp. v. Ross Inst, 364 F.3d 471 (2d Cir. 2004) (finding fair use of copyright where website
operator posted analysis of work for purpose of criticism); Religious Tech. Ctr. v. Netcom On-Line Commcn Servs.,
Inc., 923 F. Supp. 1231 (N.D. Cal. 1995) (finding fair use of copyright where works were published for purpose of
criticism and not for commercial purposes, despite gaining recognition by peers).
8

Consumers Union of U.S., Inc. v. Gen. Signal Corp., 724 F.2d 1044, 1050 (2d Cir. 1983).

See Natl Rifle Assn of Am. v. Handgun Control Fedn of Ohio, 15 F.3d 559, 562 (6th Cir. 1994) (citing
Consumers Union, 724 F.2d at 1050).
10

11

New Era Publns Intl, ApS v. Carol Publg Grp., 729 F. Supp. 992, 998 (S.D.N.Y. 1990).

12

See, e.g., Swatch Group Mgmt. Servs. Ltd. v. Bloomberg L.P., 756 F.3d 73 (2d Cir. 2014) (finding fair use where
news service published transcript of telephone conference, even though transcripts or telephone conference had not
been made publically available, and that telephone conference had manifestly factual character).

C.

Amount of Portion Used in Relation to Work

The third factor concerns the amount of material taken from the original work. Under this
factor, the user must copy no more than reasonably necessary to enable proper use of the
material.13 Generally, the smaller the portion used from an original work, the more likely a
finding of fair use will be made. But courts do not focus solely on the amount of material used;
they must also determine whether the amount copied is reasonable in relation to the purpose of
the copying.14 As a result, even a substantial amount of copying does not automatically preclude
a finding of fair use if it is necessary to further a proper purpose.15
Here, a mere 35 seconds of a 16-and-a-half-minute interview were copied for the purpose
of directly quoting Ms. Soechtigs statements. The amount copied is purely that which was
necessary to quote Ms. Soechtig directly regarding the issue on which AmmoLandTV sought to
comment on. As a result, because only a small portion of the work was used, and the amount
used was necessary to further the purpose of the work, this factor weighs heavily in favor of a
finding of fair use.
D.

Effect of Use Upon Potential Market

The final of the four factors focuses on the harm to the copyright owners ability to profit
from their original work. Analyzing this factor requires a balancing of the benefit the public will
derive if the use is permitted and the personal gain the copyright owner will receive if the use is
denied.16 Although mere absence of damages does not require a finding of fair use, the less
adverse the effect on a copyright owners expectations of financial gain, the less public benefit
need be shown to justify the use under the fair use doctrine.17
But in cases where the use of copyrighted material is noncommercial in nature, as in this
case, the burden falls to the copyright owner to demonstrate by a preponderance of the evidence
that there is some meaningful likelihood of future harm.18 The plaintiff must prove that either
the particular use is harmful or that, if use should become widespread, it would adversely affect
either primary market for copyrighted work or current or potential markets for derivative
works.19
13

Chicago Bd. Of Educ. v. Substance, Inc., 354 F.3d 624, 629 (7th Cir. 2003).

14

Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 586-87 (1994).

15

Fisher v. Dees, 794 F.2d 432, 438 (9th Cir. 1986); Rubin, 836 F. Supp. at 921.

16

Wright, 953 F.2d at 739 (quoting Wright v. Warner Books, Inc., 748 F. Supp. 105, 112 (S.D.N.Y. 1990) (quoting
MCA, Inc. v. Wilson, 677 F.2d 180, 183 (2d Cir. 1981)).
17

Amsinick v. Columbia Pictures Industries, Inc., 862 F. Supp. 1044, 1049 (S.D.N.Y. 1994) (citing MCA, 677 F.2d
at 183).
18

Hustler Magazine Inc. v. Moral Majority Inc., 796 F.2d 1148 (9th Cir. 1986) (quoting Sony Corp. v. Universal
City Studios, Inc., 464 U.S. 417, 451 (1984)) (emphasis added).
19

Rubin, 836 F. Supp. at 920 (citing Sony Corp., 464 U.S. at 450).

TheLipTV thus bears the burden of showing any effect on potential markets. Regardless,
it is highly unlikely that TheLipTV will be successful in doing so. This is because the interview
in question has been freely available on Youtube since February. As a result, the only potential
market impact is that of visits to TheLipTVs YouTube channel itself. With the increased
scrutiny of the interview generated by AmmoLandTVs publication of the clip, TheLipTV can
only expect to see more traffic to their channel as a result. Given that TheLipTV will only benefit
from AmmoLandTVs use, this factor weighs heavily in favor of a finding of fair use.
E.

Additional Considerations

It is important to remember that the above are merely factors in determining whether or
not the use of a particular work is protected by the fair use doctrine. Although these four factors
are given great weight, other considerations can play an important role. One such important
consideration is the First Amendment to the United States Constitution.
Although the First Amendment does not provide a defense to copyright infringement,
when the use of a copyrighted work occurs in the course of political, social, or moral debate, the
public interest in the free expression is an important factor favoring a finding of fair use.20 Here,
the publication of the clip in question concerns matters of significant public concern. First
Amendment principals thus dictate that AmmoLandTVs use of the clip favors a finding of fair
use.
II.

CONCLUSION

It is clear from the facts above that the use of the clip in question constitutes a fair use
and is thus not an infringement of copyright as claimed by TheLipTV. As a result, we ask
YouTube to rescind its takedown of the clip and remove the copyright strike on our account.

I consent to the jurisdiction of the Federal District Court for the district in which my
address is located, and will accept service of process from the claimant. I swear, under
penalty of perjury, that I have a good faith belief that the material was removed or
disabled as a result of a mistake or misidentification of the material to be removed or
disabled.

_____________Frederick Riehl________
Fredy Riehl
Editor
AmmoLand Shooting Sports News, Inc.

20

Hustler Magazine Inc. v. Moral Majority Inc., 606 F. Supp. 1526, 1536 (C.D. Cal. 1985).