The Challenge of Fighting Dubious Copyright Claims

Late last month, The Copyright Claims Board (CCB) issued a final determination in the long-running case of Saad Hashmami v. Shahid Anwar, LLC.

The case, which had been going on since July 2024, involved a YouTube who, according to their claim, had been wrongly targeted by copyright notices from an individual that he criticized.

Though the case was largely dismissed on a technicality, the CCB went out of its way to highlight how difficult it is for a creator to win a legal battle with someone filing dubious copyright claims on their content.

While the outcome of this case was highly fact-dependent, the reasoning behind the decision is a warning to all creators about the uphill battle they face when dealing with dubious or even outright fraudulent copyright claims.

Unfortunately, those challenges aren’t limited to the CCB and may be even more difficult in a regular court of law.

Background of the Case

Saad Hashmami first filed the claim in July 2024 and then amended it in August. In the original claim, he argued that he had published three videos on YouTube criticizing Shahid Anwar. As part of those videos, he used short snippets, between 7-10 seconds each, of Anwar’s videos from Instagram.

Hashmami claims that Anwar filed takedown notices against each of the videos, resulting in his channel being disabled. YouTube, for reasons that are not clear, rejected Hashmami’s counternotices, prompting Hashmami to file the claim with the CCB.

Hashmami filed the claim against both Anwar and his company, Shahid Anwar, LLC. However, for whatever reason. Hashmami did not provide service to Anwar personally, resulting in the claim being dismissed against him. The case moved forward against the LLC alone.

This ended up being the fatal flaw in the case. According to the CCB, Anwar filed the copyright claims himself, not through the LLC. This meant that the LLC was the incorrect party and, since the LLC is a separate legal entity, it could not be held liable for Anwar’s actions as an individual.

But the CCB did not stop there. The board provided significant additional analysis of the case, highlighting how, even if the LLC had been the correct party, Hashmami still would have likely lost the case.

To be clear, the board did acknowledge that the videos were possibly protected under the fair use doctrine. However, the board found that there was insufficient evidence that Anwar didn’t have a subjective belief that they were infringing. This was in spite of evidence that Anwar was targeting Hashmami’s videos due to the criticism rather than the copied material.

The board also noted that the Lenz case, which Hashmami cited in his claim, both did not directly apply since it hasn’t been widely adopted by other circuits, but also set a very low bar for a potential defendant to meet.

In short, the claim was dismissed because the CCB found that the LLC was not the correct party. But the analysis went further and should serve as a warning to others dealing with dubious copyright claims.

Subjective vs. Objective Belief

Setting aside the LLC issue for a moment, the CCB went into great detail about the difference between an objective standard and a subjective standard when filing a copyright notice.

The board noted that, under the law, a person filing a copyright notice needs to only have a subjective belief that the use is infringing. Even if they are sorely mistaken in that belief, they are not liable for filing a false claim.

As the CCB said, “Two things can be true here. Shahid Anwar could have decided that he wanted to shut down or even ruin Hashmami’s channel, and his threats certainly cross any line of decency. However, it is certainly conceivable that Shahid Anwar, a layperson, subjectively thought that use of his own videos within Hashmami’s videos to disparage him or compete with him was not a fair use.”

In short, why Anwar wanted to file the claims is largely irrelevant. What matters is whether Hashmami can prove, based on a preponderance of the evidence, that Anwar knew that the videos were protected under fair use.

That is an incredibly high bar. It’s not enough for Hashmami to show that Anwar filed a malicious claim to silence his criticism, he has to prove that Anwar knew that the videos were protected under fair use. Given how complicated fair use is and the pure difficulty of understanding another person’s subjective beliefs, it is an incredibly difficult standard to meet.

Especially interesting is the CCB’s analysis of the Lenz case. That case, which began in 2007 and ended in 2018, is also known as the “dancing baby” case. In it, a mother, Stephanie Lenz, uploaded a video of her baby dancing to the Prince song “Let’s Go Crazy,” which was playing in the background.

Universal Music Group filed a takedown notice against the video, saying that it was infringing on the track. This prompted an 11-year legal battle that resulted in a 2015 Ninth Circuit Court of Appeals decision. (Note: A 2016 version of the decision is considered the operative version.) That decision required rights holders to consider fair use but said that automated takedowns were acceptable provided fair use was factored in and that the filer only needed to have a subjective belief that the use is infringing.

The CCB not only said that decision set a very low bar for a potential defendant to meet, but also that it has not been widely adopted by other circuits, including the one that Hashmami is in.

As such, even without the LLC issue, it seems unlikely that the CCB would have found in favor of Hashmami. That should worry anyone who is dealing with similar issues.

Why This Case Matters

To be clear, none of this is really new. I could have said much the same at any point following the Lenz case, which is now more than a decade old.

But cases examining false takedown notices are still very rare. During the drafting of the CASE Act, which was the act that created the CCB, it was seen as a big deal that the board would be able to hear cases like this one. Though section 512(f) of the Digital Millennium Copyright Act (DMCA) makes filing a false copyright notice unlawful, enforcing that statute has been difficult in practice.

Many had hoped that the CCB would be a tool to address this issue. But, as this case makes clear, the same issues that limit enforcement in regular court cases also apply here. That’s a point that the CCB literally went out of its way to make.

The analysis on the statute and the Lenz case was not necessary. The claim could have been dismissed on the LLC issue alone. The board is correct, the LLC is not the correct party. However, the board wanted to make it clear that such claims will face a high bar in the future. Even presenting evidence that the use was likely protected under fair use and that the filer “wanted to shut down or even run” the critic was not enough.

However, for me, one question about this case lingers. Why did YouTube not restore the videos following Hashmami’s counternotices?

Unfortunately, I don’t have a good answer to that question. The counternotices themselves are in the public record and it appears that, when initially filing them, Hashmami claimed that the copied portions of the videos were his original work and that they were public domain, not that they were protected under fair use. I can see why YouTube would have been hesitant to restore the videos in that light.

That said, it does appear that Hashmami’s attorney filed a second counternotice that better explained the situation. Though the order is not clear from the evidence file, it seems likely that YouTube received the first counternotice and decided to simply close the case.

Bottom Line

All in all, this case is nothing but bad news for creators facing dubious copyright claims. Proving that your work was not infringing is not enough. You have to prove that whoever filed the notice had subjective belief of that fact when they filed the notice. That is nearly impossible.

The way to blunt this is supposed to be filing a counternotice. However, as Hashmami found out, that can be difficult to do. His notice did not result in the videos being restored. It is unclear why, but the inaccuracies in his notice likely played a role in that.

To be clear, hosts, like YouTube, have no obligation to restore videos following a counternotice. Their terms of service and other policies make it clear that your content is hosted there solely at their discretion. If they don’t wish to restore it, they don’t have to.

As such, if you need to file a counternotice and are not incredibly familiar with copyright law, I would encourage you to seek out the help of an attorney. Filling it out correctly may be the difference between your content being restored and it remaining offline.

In the end, the CCB really isn’t meant to shift copyright law. It’s meant to provide a way for resolving copyright-related disputes that are impractical to resolve in a regular court of law. As such, the board is bound by the rulings and decisions that came before it.

Still, to go this far out of its way to make it clear just how much of an uphill battle creators face when dealing with dubious copyright claims is interesting. The board is not wrong. It’s just interesting that it chose this case to make that point.