JESSE TAYLOR

DID: (206) 676-7024

EMAIL: jesset@summitlaw.com

September 18, 2019

DMCA Complaints
YouTube (Google LLC)
901 Cherry Ave.
San Bruno, CA 94066
USA

Re: Copyright Counter Notice

To whom it may concern:

This firm represents Index Newspapers LLC, d/b/a The Portland Mercury. This letter
shall serve as the Portland Mercury’s Counter Notice to the copyright claim submitted by
Stumptown Matters for the video titled “Patriot Prayer at Cider Riot, May 1 2019” located at:
https://www.youtube.com/watch?v=L4oIJug5r9Y

The Portland Mercury is a well-known newspaper and media company founded in

Portland, Oregon. On September 6, 2019, the Portland Mercury posted a free, online article
titled “Watch: Video Footage of Patriot Prayer Allegedly Instigating May Day Riot, According
to Police Affidavit,” available at
https://www.portlandmercury.com/blogtown/2019/09/06/27101533/watch-video-footage-of-
patriot-prayer-allegedly-instigating-may-day-riot-according-to-police-affidavit. The article
concerns a violent May Day clash at a local cidery between members of the far-right group
Patriot Prayer and anti-fascist protestors. The article discusses the criminal charges brought
against the leaders of Patriot Prayer as well as a separate, civil lawsuit filed by the cidery where
the clash took place. As part of its reporting of the incident, the Portland Mercury used quotes
pulled directly from the affidavit outlining the alleged criminal activities interspersed with
video clips taken by two different people at the scene of the clash. One of the videos used in the
article to help readers contextualize the criminal allegations outlined in the affidavit is the video
at issue here, originally uploaded by the YouTube channel “Stumptown Matters.” Attorneys
representing the cidery downloaded a copy of the Stumptown Matters video and used it in the
cidery’s court filings. Stumptown Matters removed the video from its public page sometime
thereafter.

The Portland Mercury’s use of the Stumptown Matters video in conjunction with
its reporting on the incident constitutes fair use under the law.
Copyright Counter Notice
September 18, 2019
Page 2

The first factor in a fair use inquiry is “the purpose and character of the use.” 17 U.S.C.
§ 107(1). “News reporting is one of the examples enumerated in § 107 to give some idea of the
sort of activities the courts might regard as fair use under the circumstances.” Harper & Row
Publishers, Inc. v. Nation Enterprises, 471 U.S. 539, 561, 105 S. Ct. 2218, 85 L. Ed. 2d 588
(1985) (internal quotations omitted). The reprinting of pictures (or, in this case, videos) “not
just to entice the buying public, but to place its news articles in context” serves an informative
function that weighs in favor of fair use. Nunez v. Caribbean Intern. News Corp., 235 F.3d 18,
22 (1st Cir. 2000). Here, the Portland Mercury’s use of the Stumptown Matters video was for
purposes of news reporting. The Portland Mercury used the Stumptown Matters video in
conjunction with its own reporting of the incident showcased in the video, transforming the
work into news. This was fair use. 1

The second factor in a fair use inquiry focuses on the “nature of the copyrighted work.”
17 U.S.C. § 107(2). Courts generally consider two aspects of the work in evaluating this factor:
“first, the extent to which it is a creative work enjoying broader copyright protection as
opposed to a factual work requiring broader dissemination, . . . and second, whether it is
unpublished, in which case the right of first publication is implicated.” Nunez, 235 F.3d at 23
(internal citations omitted). Here, the Stumptown Matters video was not a creative work
entitled to broad copyright protection—it was a video of a physical confrontation that was
widely reported across the country (i.e. a factual work). The Stumptown Matters video was
originally published by Stumptown Matters and was removed only after the video had been
captured and used in a court filing, meaning that the right of first publication was not
implicated by the Portland Mercury’s use of the video. This was fair use.

The third factor in a fair use inquiry focused “upon whether ‘the extent of . . . copying’
is consistent with or more than necessary to further ‘the purpose and character of the use.’” Id.
at 24 (quoting Castle Rock Entertainment, Inc. v. Carol Pub. Grp., Inc., 150 F.3d 132, 144 (2d
Cir. 1998)) (internal quotations omitted). This factor is neutral where copying less than the
entire work would be useless to the story. Nunez, 235 F.3d at 24. Finally, the fourth factor in a
fair use inquiry considers “the effect of the use upon the potential market for or value of the
copyrighted work.” 17 U.S.C. § 107(4). 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.” MCA, Inc. v. Wilson, 677 F.2d 180, 183 (2d Cir. 1981). Here, the Portland
Mercury’s use of the Stumptown Matters video for reporting purposes results in a substantial
benefit to the public. Indeed, the Portland Mercury’s use of the Stumptown Matters video in
conjunction with its original reporting helps the public understand the noteworthy events as
well as the criminal charges that were filed against the leaders of the far-right group that
instigated the violence. Conversely, Stumptown Matters has removed the video from its public

1
The fact that the Portland Mercury made its news article available to the public for no charge also weighs in
favor of a finding of fair use. See Nunez, 235 F.3d at 22.
Copyright Counter Notice
September 18, 2019
Page 3

page, meaning that it derives no benefit whatsoever from denying the use of the video. This
was fair use.

The Portland Mercury’s use of the Stumptown Matters video constitutes fair use under
the law. Accordingly, the Portland Mercury demands that YouTube restore the video pursuant
to YouTube’s Counter Notification requirements.

I consent to the jurisdiction of the Federal District Court for the district in which my
address is located, or if my address is outside of the United States, the judicial district in which
YouTube 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.

Sincerely,

SUMMIT LAW GROUP, PLLC

Jesse Taylor, WSBA #51603