Tale of a takedown

"Today our right to free speech was stolen," an indignant Kathie Lack declared. She serves as chair of the Buncombe County Republican Action Club, a small activist offshoot of the local Republican Party.

Whodunnit?: After a billboard sponsored by the Republican Action Club was defaced with graffiti in November 2008, then Buncombe County Republican Party Vice Chair Rick Jenkins speculated on the perpetrator's profile. An Xpress video of his analysis become a minor YouTube hit, but it was pulled off the Web for almost two months after a bogus copyright-infringement claim was filed. From video by Jason Sandford

The date was Nov. 3, 2008 — one day before voters would decide whether Barack Obama or John McCain would become the next president. Lack gripped a microphone as she spoke, standing in front of a billboard beside Patton Avenue in downtown Asheville. Her group had sponsored the sign, which urged voters to "Change the Culture of Corruption in N.C." and "Vote Republican." But during the night, a vandal had added an unwelcome message in stark white spray paint: "Drop bombs on families!!!?"

Decrying the defacement at the hastily called press conference, Lack pinned the blame on the Democratic Party, though no one had been arrested for the vandalism. "It appears that the Democrat Party doesn't believe the Republicans have the right to free speech," she said. "We put this billboard up with our own money, and they stole it for their use — they basically took away our right."

A host of local Republican officials and activists followed on from Lack's statement, including then Buncombe County GOP Chair Tim Johnson and then Vice Chair Rick Jenkins. Johnson asserted that, given the billboard's proximity to the Sheriff's Department, "It almost makes you think that someone from the Sheriff's Department or law enforcement sat here on the corner and protected them while they did it."

But who had, in fact, wielded the spray can? Facing a handful of local news reporters, Jenkins said he had a pretty good idea about the perpetrator's profile: He was probably a white male.

"I have a friend who was in charge of the gang-crime unit for L.A. County Sheriff's Department. I sat under him; I've studied graffiti," Jenkins said. "This is a white male that done this. It's legible, it's in one color and therefore you can tell. You would mark out a Hispanic that did this because the Hispanics that do do graffiti, it's very colorful [and] there's a lot of symbols, because of the broken English. You'd rule out a woman because a woman doesn't do straight-up stick-writing — it would have some kind of artistic flair. Chances are you've got a white man that's done this."

Here's what visitors to YouTube saw when they tried to view the video during the takedown.

And so it was that, in the course of just a couple of minutes, a minor YouTube hit was born. But that wasn't all: As it turned out, coverage of a press conference called to defend free speech would lead to still more threats to that key freedom.

"This video is no longer available"

That afternoon, Xpress Multimedia Editor Jason Sandford uploaded excerpts of his video footage from the Action Club press conference to YouTube, including footage of Jenkins' exercise in deconstructing graffiti. Over the next few weeks, it began going viral, becoming the most popular video ever shot by Mountain Xpress (a distinction it retains today).

A year later, the video had racked up more than 15,000 views and more than 150 comments (ranging from "This guy isn't serious is he?" to "I am ashamed to be an American right now … let the flogging begin" to "The negative responses here are typical of liberal hysteria").

But then, in November 2009, the video disappeared from view.

On Nov. 19, Xpress received an e-mail from YouTube that read: "We have disabled the as a result of a third-party notification from Kathy Rhodarmer claiming that this material is infringing. … Repeat incidents of copyright infringement will result in the deletion of your account and all videos uploaded to that account. … Please note that under Section 512(f) of the Copyright Act, any person who knowingly materially misrepresents that material was disabled due to mistake or misidentification may be liable for damages."

Mistaken identity: Local conservative activist Kathy Rhodarmer — whose copyright-infringement claim prompted YouTube to take down the Xpress video — has apologized for making the claim, saying she mistakenly assumed that the video was taken from footage she shot at the Action Club press conference. File photo by Jonathan Welch

Thereafter anyone looking for the video on YouTube found only this message: "This video is no longer available due to a copyright claim by Kathy Rhodarmer."

In fact, Rhodarmer, a local activist and Action Club member, was at the press conference that day, shooting her own video. But Rhodarmer didn't shoot the video Xpress posted; as noted above, Xpress shot it.

For several reasons — starting with the fact that the video was part of a newsgathering operation at a public press conference — Rhodarmer had no grounds for claiming copyright infringement, according to attorney Mike Tadych of the North Carolina Press Association. "That sounds like an unsubstantiated, frankly unwinnable claim," he said. The Action Club event "was viewable from a public vantage point and involved a public figure in a public place," he noted, adding, "I'm kind of surprised that YouTube would take it down, but maybe they're just really gun-shy in cases like this."

Nothing quite like the YouTube takedown had ever happened to Xpress before. But in the age of digital media, instances of digital censorship are on the rise, posing a new challenge to newsgatherers — and to anyone who posts their videos online. (See sidebar, "Flexing Your Digital Rights.")

Countering cybercensorship

In its initial e-mail to Xpress, YouTube noted that, under its policies, we were free to file a counterclaim regarding the copyright for the video, which we did.

In a Dec. 3 e-mail to YouTube, we wrote: "The video in question was shot by a newspaper reporter at a press conference. The video was collected as part of the newspaper's newsgathering mission. The Xpress believes strongly that it is well within its rights to post the video." We added, as part of YouTube's requirement, the following line: "The Xpress has a good faith belief that the content was removed or disabled as a result of a mistake or a misidentification of the content."

That same day, YouTube sent back an automatic reply confirming that it had received the counterclaim. About a week later, the company said it had notified Rhodarmer that it had received a counterclaim and was giving her 10 days to respond.

Meanwhile, Xpress opened an account with another online-video host, Vimeo, and uploaded the Jenkins graffiti video there.

For a few weeks, Xpress heard nothing more about the matter. Then, on Jan. 5 of this year — as we were in the midst of preparing this article — the Jenkins graffiti video reappeared on YouTube, after being absent for nearly eight weeks. (It can be viewed at http://bit.ly/69328C.)

And the next day, Rhodarmer stopped by the Xpress office and apologized for making the copyright claim, saying she'd mistakenly assumed that the video of Jenkins had been excerpted from her footage. She also said that after Xpress had contacted her requesting an interview for this story, she'd sent an e-mail to YouTube retracting her claim.

In addition, Rhodarmer pointed out that on Nov. 17, she'd sent a message to Xpress via our YouTube account messaging service wherein she'd claimed that the footage was hers; regrettably, we don't check that messaging service regularly and so hadn't seen her message until she alerted us to it. Rhodarmer declined to make any additional on-the-record comments about the matter.

Not all YouTube takedowns are resolved so smoothly, notes Corynne McSherry, a senior staff attorney for the Electronic Frontier Foundation. The San Francisco-based nonprofit fights online censorship with public-awareness campaigns, lobbying and lawsuits.

"This is happening all the time," she says of takedowns resulting from fraudulent copyright claims. "And this gets to the basic problem of the takedown system: It was set up to protect major creative artists who want to protect their copyrighted work, which kind of makes sense. But here, you have a situation where the motives of the person making the claim aren't clear to you, even though it's your video.

"It's the downside of what has become a hair-trigger system," says McSherry, referencing the ease with which a false claim can lead to a video takedown. The system "was designed for one purpose but can so easily be abused for another purpose."

A greater threat to free speech, she notes, can occur when multiple false claims are made: YouTube's policies dictate that after three copyright-infringement claims are lodged against a user, if the user doesn't contest the claims, their member account will be canceled, and all of their videos will be pulled down from YouTube.

"The average person doesn't want to become a lawyer — shouldn't have to become a lawyer — in order to share videos online," McSherry maintains. "But the situation behooves them to educate themselves, to at least know their basic rights and obligations when it comes to takedowns like this one."

Jon Elliston can be reached at jelliston@mountainx.com or at 251-1333, ext. 127. Jason Sandford can be reached at jsandford@mountainx.com or at 251-1333, ext. 115.