This holiday season, the Colorado Times Recorder received three “gifts.” Months after they were removed from public view by YouTube, a trio of our video clips were returned to us (and our audience) courtesy of YouTube and the Bill of Rights.
Since my conversations with Joe Oltmann last October, when I first wrote about his election conspiracy group, FEC United, its militia arm, and its ties to the Colorado GOP, he has threatened to sue me several times. So far, I’m happy to report, the Colorado Times Recorder’s legal department hasn’t yet needed to leap into action.
Oltmann, a self-proclaimed champion for freedom and the Constitution, did however initiate a smaller (and less expensive) action against the Colorado Times Recorder.
He filed copyright objections with YouTube over three clips of his podcast we published in the course of our reporting. Copyright laws protect the creator of original content from having that material used without permission. However, there’s an exception for news reporting on copyrighted material. It’s called the doctrine of fair use and it permits news outlets to reproduce small portions of copyrighted content for the purposes of reporting on said material.
“The Supreme Court has portrayed the concept of fair use as a way of preventing copyright protection from running afoul of the First Amendment’s guarantees of freedom of speech and press. Congress wrote the ‘well-established’ principles of fair use into law in the Copyright Act of 1976,” according to the Free Speech Center at Middle Tennessee State University.
As the world’s largest distributor of video content, Youtube allows copyright holders to object to any use of their material by filing a complaint. Upon receipt of a complaint, YouTube removes the video and notifies the complaint recipient, informing them that they can either just accept the removal (which counts as a single strike towards a three-strikes complete de-platforming policy) or submit a counter-claim explaining why the complaint is invalid. If the counter-claim, in this case, “fair use doctrine for news reporting” is accepted by Youtube, then the original complainant has two weeks to actually file a lawsuit or the video is restored online
In the case of Oltmann’s three complaints against the Colorado Times Recorder, YouTube accepted all three counterclaims of “fair use,” though we had to re-file them repeatedly. For one video, featuring a conversation between Oltmann and Congresswoman Lauren Boebert (R-CO), YouTube first rejected our counterclaim.
“Unfortunately, it’s unclear to us whether you have a valid reason for filing a counter notification, so we won’t be able to honor your request,” said YouTube. “…If you are sure that your video has been misidentified as infringing and are willing to possibly defend your claim in court, you can resubmit your counter notification.”
Given that we were on sound legal ground, CTR dutifully re-submitted the counterclaim, making the same “fair use” argument as we had previously. Same result. It ultimately took five counterclaims before YouTube accepted our argument.
The last two-week window for Oltmann to keep the videos offline by providing proof that he is suing us expired on Dec. 21. So while we were ultimately vindicated, Oltmann’s action and YouTube’s inscrutable dispute policies combined to suppress legitimate news content from the public for several months.
To be clear, our use of the clip isn’t in a gray area, or pushing the envelope of what’s legally allowed; this is a textbook definition of “fair use.” We used a 103-second snippet of an hour-plus long podcast for a news story reporting on a conversation between an elected official and another public figure, the leader of a far-right election fraud conspiracy group.
Here’s the story I wrote it back in April and focused on Boebert’s comment to Oltmann that she was working to “expose to the voters how these policies coming from the state legislature have negative impacts on the communities.” And here’s the video itself:
Here are the other two stories and their accompanying videos. They’re all back online because Oltmann once again failed to back up his allegations with actual legal action.
Election Fraud Conspiracist Claims Six County Clerks Have Given Him Voting Machine Data
Colo GOP Legislator Begs Activists at QAnon-Linked Anti-Vax Rally to ‘Continue To Broadcast the Facts’
Meanwhile Oltmann has his own legal troubles: he’s still facing a defamation lawsuit from a former Dominion Voting Systems employee, the deposition from which revealed that Colorado Republican Party chair Kristi Burton Brown previously headed Oltmann’s conspiracist group and militia, FEC United. Oltmann, who once declared that anyone opposing him publicly would “run out of money before he does,” is now raising funds online for his legal defense.