Nikola has issued copyright-takedown notices targeting critics on YouTube who used clips of the promotional video in which a Nikola prototype truck was seen rolling down a hill.
Nikola last month admitted that the promotional video of a supposedly functional Nikola One electric truck moving along a highway actually consisted of the company's vehicle rolling downhill. This week, Nikola "forced the removal of several critical videos from YouTube, saying they infringed its copyright by using footage from the company," including the truck-rolling-downhill video, the Financial Times reported yesterday.
Sam Alexander is one of at least two financial commentators who had videos removed by Google subsidiary YouTube at Nikola's request. He says that four of his videos were taken down.
"The claim is from when I showed 30 seconds of their Nikola One in Motion footage, which is what they put on Twitter and it's of their Nikola One rolling down the hill," Alexander said in a YouTube video he posted Wednesday.
Alexander said he believes his videos should be protected as fair use under YouTube's policies. He used the 30-second clip of the Nikola One in videos that lasted 10 minutes or more, he said. Alexander said he put the words "Source: Nikola" in the corner when he played the truck clip and played his own audio over the clip.
"I'm fairly certain it falls under fair use," he said in the video. "That being said, I'm a little nervous because [YouTube's website] says if you challenge the [copyright] strike, then be prepared to get a lawyer and it looks like these are going to go to court, and I don't have lawyer money... I'm fairly broke."
Alexander also said he wonders why he can't simply black out the 30-second portions of his videos in order to get them back online, but, he said, "I'm not even allowed access to those videos."
"Right now my main concern is that Nikola is using copyright strikes to silence their critics," Alexander told the Financial Times. Another YouTuber named Tom Nash "was required to take down three videos that featured criticism of Nikola," including one that used footage of the moving truck, and has appealed YouTube's decision, the Financial Times article said.
The original rolling-truck promotional clip is still available on Nikola's YouTube page.
Nikola, YouTube offer slightly different explanations
A Nikola statement sent to Ars and other media outlets tries to portray YouTube as the party that initiated the video-removal process. "YouTube regularly identifies copyright violations of Nikola content and shares the lists of videos with us," a Nikola spokesperson told Ars. "Based on YouTube's information, our initial action was to submit takedown requests to remove the content that was used without our permission. We will continue to evaluate flagged videos on a case-by-case basis."
YouTube offered a different description, saying that Nikola simply took advantage of the Copyright Match Tool that's available to people in the YouTube Partner Program.
"Nikola has access to our copyright match tool, which does not automatically remove any videos," YouTube told the FT. "Users must fill out a copyright removal request form, and when doing so we remind them to consider exceptions to copyright law. Anyone who believes their reuse of a video or segment is protected by fair use can file a counter-notice."
We asked Nikola if it has a response to YouTube's statement, but Nikola didn't provide any further comment.
Rightsholders must consider fair use
YouTube's fair-use webpage acknowledged that some copyright-takedown requests target videos that appear to be examples of fair use.
"YouTube receives lots of takedown requests under copyright law asking us to remove videos that copyright owners say are infringing," the company says. "Sometimes those requests target videos that seem like clear examples of fair use. Courts have held that rightsholders must consider fair use before they send a copyright takedown notice, so in many cases (though it's a very small percentage of copyright takedowns overall), we ask rightsholders to confirm they've done this analysis."
Nikola founder Trevor Milton resigned from his role as executive chairman after the rolling-truck revelation, and a pending Nikola deal with GM did not close as scheduled.
Nikola is involved in a legal battle with Tesla, having sued the company alleging that the Tesla Semi was a knockoff of Nikola's own truck design. Tesla last month filed a response accusing Nikola of basing its own truck on a 2010 concept by designer Adriano Mudri. A subsequent report by the Financial Times said that Milton purchased the designs from Mudri in 2015.
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