YouTuber Barnacules Nerdgasm is coming under fire for encouraging his viewers to abuse YouTube’s copyright system in order to take down videos that they deem to be “bullying” or “defamation of character.”
YouTube’s copyright system is meant to be used solely by rights holders to protect their copyrighted work.
Videos that criticize someone are usually protected under fair use – a provision in copyright law that allows limited use of copyrighted content without permission for the purposes of commentary, criticism, or parody.
YouTube has a separate reporting system which allows people to report “hateful or abusive content.”
However, during a recent livestream, Barnacules told his viewers to copyright strike content “that does not clearly fall under fair use” and claimed that if people are not using content with “journalistic intent” or “satirical intent” and instead using it for “bullying” or “defamation of character,” then “absolutely it does not fall under fair use.”
When asked whether it’s fair use to call out people by name or insult them, Barnacules said:
“It’s not fair use to use their likeness in a thumbnail without asking their permission unless it’s actually an unbiased news article in which case these are not, these are flagrant attacks of a personal nature.”
Later in the stream, YouTuber RFC Media asked Barnacules directly in the live chat whether the content in question is a straight reupload (which would generally not be protected under fair use) or a critical video (which would generally be protected under fair use).
Barnacules responded by saying “it depends on the context” before suggesting that YouTube will overturn the strike if it's invalid and punish the false flagger.
Barnacules then swiftly switched topics and said: “If you guys continue to keep pushing that topic, you will be banned by the moderators.”
Next Barnacules appeared to try and downplay his previous comments on fair use by accusing YouTube commentators of “trying to misinterpret” what he says and admitting that “maybe I give bad advice.”
“I give a lot of bad advice,” Barnacules said. ”But it’s not illegal to give bad advice.”
Days before Barnacules told his viewers to copyright strike videos that contain “bullying” or “defamation of character,” he admitted on another livestream that he told YouTuber John Hancock to copyright strike videos that he deems to be “abuse.”
During this stream, Barnacules claimed that fair use does not cover “abuse” or “being a visceral piece of sh*t.”
Several YouTubers have called out Barnacules for his recent comments.
“It’s fair use,” said YouTuber Toploaded Gaming. “The thumbnail’s fair use. The video’s fair use.”
“This is really VERY bad advice and it's beyond comprehension that it would be coming from another Youtuber,” Jeremy Hambly from TheQuartering tweeted.
I am concerned folks like @Barnacules are out here telling people to copyright strike content when it's "mean" as apparently "mean" content does not qualify fair use. This is really VERY bad advice and it's beyond comprehension that it would be coming from another Youtuber.
— TheQuartering (@TheQuartering) February 11, 2020
Barnacules claims that “abuse” and “bullying” are not protected under fair use come shortly after a landmark fair use victory for Carl Benjamin – the YouTuber behind the Sargon of Akkad and Akkad Daily channels.
In this case, YouTuber Akilah Hughes sued Benjamin for copyright infringement after he used Hughes’ content to criticize her viewpoints in a video titled “SJW Levels of Awareness.”
After almost three years, the case was dismissed and the judge ruled that Benjamin’s video easily met all four fair use standards.
While Benjamin ultimately won the case, the victory came after a long and expensive legal battle.
YouTubers that don’t have the time or financial resources to challenge false copyright claims in court are often left with little recourse.
Barnacules did discuss challenging fair use in court during his livestream and chuckled when talking about the high cost.
“Just realize if you lose in court,” Barnacules said before laughing, “it becomes very expensive for you in the civil suit that will undoubtedly follow. That’s why you don’t see a lot of this stuff go to court unless its large corporations.”