The Price of Censoring "Killing America"

Hi all,

I hope you have been doing well.

If you have been reading my Substack posts about the attempts by the Menlo Atherton High School newspaper, The M-A Chronicle, to censor my film then you will know that I was served with a cease and desist letter on April 2. I had ten days to comply. Today is day 11 and I have refused to comply.

Several days ago, the Palo Alto Daily published an article where Mark Lemley, a Stanford University Law Professor said it was “‘disappointing’ to see a press outlet trying to stop documentaries from accurately documenting government hearings.” He did say my politics were “apparently noxious” which I thought rather obnoxious ; ), especially if he hasn’t seen the film. But I’ll take his verdict.

In the same article, Santa Clara professor, Tyler Ochoa, an expert in copyright law, said that “telling the public what happened at a school board meeting is clearly news reporting, and a documentary with a particular point of view is a form of comment and criticism.” In other words, we fulfilled the Fair Use requirement of transforming the source material that was included in Killing America.

Killing America remains up on X (FKA Twitter) and Rumble.

Ochoa added that Elon Musk (who owns X) will have to decide whether he wants to take down the film or run the risk. “He’s kind of combative. My guess is he’ll say bring it on.”

To read the full print article, click here or on the image below:

If you’ve noticed that one platform is missing you would not be wrong. In a surprise move, a major champion of free speech, Substack, removed my post containing the full film for Killing America earlier this week.

While I don’t like how easy it is for someone to file a meritless copyright claim, I can understand why major companies take down the materials immediately when a copyright claim is filed — to avoid liability. However, I do believe that these companies need to require a heavier burden of proof from complainants to avoid frivolous or politically censorious take downs of content like my film. While I’m not a lawyer, it would seem to me that one way to do this is to require complainants review the Fair Use guidelines and submit statement(s) that explain in detail why their complaint is valid and falls outside the range of the Fair Use doctrine. False claims should be punished with removal from the platform — at the very least, they should be liable for compensation for causing damages.

A perfect example of a frivolous and possibly politically censorious complaint is the one that the Menlo-Atherton High journalist student filed against me at Substack. Below is my detailed response to his complaint that I just filed with Substack. If you read it you will see how outrageous it is that such a weak complaint can result in the removal of a film from the platform, causing significant damages.

To whom it concerns,

This letter serves as a counterclaim to (student’s name removed)’s claim of copyright violations that resulted in the removal of my post.

Stubstack uses the following four factors two determine whether the use of copyrighted material falls under the Fair Use doctrine or not: 

1. The purpose and character of the use.

2. The nature of the copyrighted work.

3. The amount and substantiality of the portion used in relation to the copyrighted work as a whole.

4. The effect of the use upon the potential market for or value of the copyrighted work.

I have copied and pasted (student’s name removed) complaint below in full form and will respond to each allegation in bold and italic and show how each clip falls under Fair Use.

(Student’s name removed)April 5, 2024 at 7:34PM

To whom it may concern:

I am requesting the removal of this Substack post: https://manofsteele.substack.com/p/watch-killing-america-fullmovie?utm_source=profile&utm_medium=reader2

The post's intention is to direct people to videos that violate copyright laws and even includes the video that infringes on my copyright.

The portions of the videos that violate my copyright are listed below:

Time stamps and source are as follows:

12:20 - 12:26: A photo used without permission that was not transformed nor is the purpose different from the original intention nor is the photo in the public domain and the documentaries use hurts the ability of the photographer to profit since it is no longer his exclusively. There is no first amendment protected commentary on the composition of the photo or the photo itself, only the topic separate from the copyright holder. The photo was first published here: : https://machronicle.com/suhsd-board-refrains-from-vote-on-detracking-advocates-forfreshman-electives/

In the original cease and desist letter sent to me on April 2, 2024 — copied below in full— (student’s name removed) states: “We do not object to the use of a screenshot of an M-A Chronicle article.” 

This is perjury since he is now claiming otherwise.

Aside from this, our use of this photo falls under Fair Use for the following for reasons:

1. The purpose and character of the use — We transformed the photo by adding narration over it that adds the additional information: “the community debated the issue of honors classes.” (Student’s name removed) published the photo in a public medium as straight reporting. We transformed the photo by including it in a documentary with a particular point of view and this is a form of comment and criticism.  Our narration continues the story line regarding the School Board vote on honors classes. 

2. The nature of the copyrighted work — The photo is of a factual nature as opposed to fictional. This photo is not a work of art but a photo of a public school board meeting. 

3. The amount and substantiality of the portion used in relation to the copyrighted work as a whole —  We used the minimum allowed to cover the span of the relevant narration.

4. The effect of the use upon the potential market for or value of the copyrighted work — (student’s name removed) is public school student at a public high school working for a publicly funded newspaper and our use of the photo does not infringe on his ability to earn money, if that is at all possible.

31:25 - 31:43: An obvious screen recording of a complied video. The video is protected since it transforms some public domain audio with captions and copyrighted photos. The original intent is not different, the video is not transformed, and the use of the video hurts the creators ability to profit since it is no longer his exclusively. There is no first amendment protected commentary on the composition of the video or the video itself, only the topic separate from the copyright holder. The full video was first posted here and was screen recorded from here: : https://www.tiktok.com/t/ZTLSHjVdm/

The photos used in the video are also protected by copyright.

1.The purpose and character of the use — We transformed this material by introducing it with the following slides - slide 1: Chloe-Gentile Montgomery took a leave of absence. She claimed harassment, slide 2: “I can’t help but feel that these attacks are somewhat race-based as I am the only black credential teacher and the only teacher in the history department with an ethnic studies degree.” — Chloe Gentile-Montgomery, and slide 3: At the next board meeting, she called in. These three slides clearly add meaning that transforms the material that comes next. Also, we further transformed the material by reversing the order of the original video by moving the Chloe segment to the front and the concerned mom to the second position. Further, (student’s name removed) published this video in a public medium. We transformed the photo by including in a documentary with a particular point of view and this is a form of comment and criticism.

2. The nature of the copyrighted work — The video is of factual nature as opposed to fictional. This video contains audio recordings and photos from a public school board meeting. Also included is a slide that (student’s name removed) does not own the copyright to. 

3. The amount and substantiality of the portion used in relation to the copyrighted work as a whole —  We used the minimum allowed.

4. The effect of the use upon the potential market for or value of the copyrighted work — (student’s name removed) is public school student at a public high school working for a publicly funded newspaper and our use of this video does not infringe on his ability to earn money, if that is at all possible.

31:43 - 31:48: photo used without permission that was not transformed nor is the purpose different from the original intention nor is the photo in the public domain and the documentaries use hurts the ability of the photographer to profit since it is no longer his exclusively. There is no first amendment protected commentary on the composition of the photo or the photo itself, only the topic separate from the copyright holder. The photo was first published here: https://machronicle.com/board-meeting-erupts-into-arguments-over-ethnic-studies-lesson/

***Note: the timestamps that (student’s name removed) uses appear to be off — if I address the wrong image, he must provide the correct timestamp.  The photo I’m addressing here is the one of a woman who appears to be crying and with the signs in the background: “Students need black educators.”

1.The purpose and character of the use — We clearly transformed this material by adding narration over it: “The meeting collapsed into tribalism.” Further, (student’s name removed) published this photo in a public medium as straight reporting. We transformed the photo by including in a documentary with a particular point of view and this is a form of comment and criticism.

2. The nature of the copyrighted work — The photo is of factual nature as opposed to fictional. This photo is of a public school board meeting. 

3. The amount and substantiality of the portion used in relation to the copyrighted work as a whole —  We used the minimum allowed to cover the narration.

4. The effect of the use upon the potential market for or value of the copyrighted work — (student’s name removed) is public school student at a public high school working for a publicly funded newspaper and our use of this photo does not infringe on his ability to earn money, if that is at all possible.

31:57 - 32:05: photo used without permission that was not transformed nor is the purpose different from the original intention nor is the photo in the public domain and the documentaries use hurts the ability of the photographer to profit since it is no longer his exclusively. There is no first amendment protected commentary on the composition of the photo or the photo itself, only the topic separate from the copyright holder. The photo was first published here: https://machronicle.com/board-meeting-erupts-into-arguments-over-ethnic-studies-lesson/

***Note: the timestamps that (student’s name removed) uses appear to be off — if I address the wrong image, he must provide the correct timestamp.  The photo I’m addressing here is the one of a father pointing his finger.

1.The purpose and character of the use — We clearly transformed this material by introducing a photo before this one that states: “Don’t forget that the IDF lied about the beheading of 40 babies.” Further, we add narration over the image of the father that transforms it: “…provoking a father who’s family in Israel was severely impacted by October 7th.” Further, (student’s name removed) published this photo in a public medium as straight reporting. We transformed the photo by including in a documentary with a particular point of view and this is a form of comment and criticism.

2. The nature of the copyrighted work — The photo is of factual nature as opposed to fictional. This photo is of a public school board meeting. 

3. The amount and substantiality of the portion used in relation to the copyrighted work as a whole —  We used the minimum allowed to cover the narration.

4. The effect of the use upon the potential market for or value of the copyrighted work — (student’s name removed) is public school student at a public high school working for a publicly funded newspaper and our use of this photo does not infringe on his ability to earn money, if that is at all possible.

32:06 - 32:17 + 32:22 - 32:31: A video used without permission that was not transformed nor is the purpose different from the original intention nor is the photo in the public domain and the documentary's use hurts the ability of the videographer to profit since it is no longer his exclusively. There is no first amendment protected 4/10/24, 4:40 PM substack.zendesk.com/tickets/610665/print https://substack.zendesk.com/tickets/610665/print 2/2 Internal note commentary on the composition of the video or the video itself, only the topic separate from the copyright holder. The video was first published here:

***Note: It is clear that (student’s name removed) is misrepresenting his case here by stating there are two videos. In doing so, he intentionally ignores the transformation that places this video under Fair Use. We believe this violates the oath that he swears at the end of his statement to Substack: “I have a good faith belief that the use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law. The information in this notification is accurate, and under penalty of perjury, I am the owner, or an agent authorized to act on behalf of the owner, of an exclusive right that is allegedly infringed.” This clearly is perjury and proper action must be taken.

1.The purpose and character of the use — We clearly transformed this material with the narration: “This is the turmoil that we have been searching for all along.” We further transformed this video by breaking it into two halves and inserting a black and white image. The fact that (student’s name removed) neglects this transformation proves he is not acting in the Good Faith that he states under the penalty of perjury. In addition, (student’s name removed) published this video in a public medium as straight reporting. We transformed the photo by including in a documentary with a particular point of view and this is a form of comment and criticism.

2. The nature of the copyrighted work — The video is of factual nature as opposed to fictional. This video is of a public school board meeting. 

3. The amount and substantiality of the portion used in relation to the copyrighted work as a whole —  We used the minimum allowed to establish the tribalism theme of the documentary and to cover the narration.

4. The effect of the use upon the potential market for or value of the copyrighted work — (student’s name removed) is public school student at a public high school working for a publicly funded newspaper and our use of this photo does not infringe on his ability to earn money, if that is at all possible.

In addition to the above, it is our contention that (student’s name removed) perjured himself on every copyright claim that he made by ignoring the Fair Use doctrine. He has filed copyright removal claims against my film on Youtube that specifically asks the following: 

• “Prepare a copyright removal request

• Before you submit a copyright removal request, you need to consider the following: Copyright exceptions: Consider whether fair use, fair dealing, or a similar copyright exception applies. We may ask you to confirm you’ve made this consideration. The content identified in your removal request won’t be removed if you don’t adequately respond or if a copyright exception applies.” Source: https://support.google.com/youtube/answer/2807622?sjid=14553014523529010004-NC

It is for this reason alone that I request that Substack not give into this meritless and censorious action by (student’s name removed)and restore my Substack page as soon as possible. 

I have read and understand GitHub's Guide to Filing a DMCA Counter Notice. 

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.

I consent to the jurisdiction of Federal District Court for the judicial district in which my address is located (if in the United States, otherwise the Northern District of California where GitHub is located), and I will accept service of process from the person who provided the DMCA notification or an agent of such person.

Sincerely,

Eli Steele

PS, here is the cease and desist letter sent by The M-A Chronicle on April 2:

To Whom It May Concern: 

It has come to our attention that your documentary, Killing America, is clearly copied from multiple pieces including, the use of video by the M-A Chronicle of the January 17th SUHSD Board Meeting, the use of photos of board meetings from two M-A Chronicle articles, “SUHSD Board Refrains From Vote on Detracking, Advocates for Freshman Electives” and “Board Meeting Erupts Into Arguments Over Ethnic Studies Lesson,” and the use of the M-A Chronicle's short form video posted on the M-A Chronicle’s Tiktok and Instagram accounts. 

We are the creators and sole authorized distributors of all works referenced above. You neither requested nor received permission to use our works, therefore your unauthorized copying and use of our copyrighted work constitutes copyright infringement in violation of the United States copyright laws. 

We hereby demand that you, within ten (10) days of this letter: 

• Remove all infringing content 

• Notify us in writing when these tasks have been completed 

• Permanently cease the use, publication, and distribution of our copyrighted material 

We do not object to the use of a screenshot of an M-A Chronicle article.

If you do not cease and desist within the above stated time period, we will be forced to take appropriate legal action against you and will seek all available damages and remedies.

Thank you,

The Editorial Board of the M-A Chronicle

The names of the editorial board are listed in the Palo Alto Daily newspaper linked above.

One can see clearly how easily it is to weaponize the copyright claims to silence and censor others. I have made countless documentaries that feature third-party footage, such as those used in Killing America, and I have never received a complaint. Now, because of this I have two strikes against me at Youtube. Not only that, I have had to spent countless hours on this, including consulting with lawyers. I have also lost the ability to market my film effectively and this has already impacted three current screenings and more that are upcoming. However, we will not back off of this fight and my goal is to set a severe precedent that prevents meritless actions such as these in the future. This is about preserving free speech and artistic expression and why would I allow these people to compromise those values for all of us?

All my best,

Eli