Viacom Yields to YouTuber Who DMCA Counterclaimed

Jason the Weatherman writes "Two weeks ago Viacom charged Christopher Knight with copyright infringement for posting on YouTube a clip from Web Junk 2.0 on VH1 that featured Knight's zany school board commercial. Two days ago YouTube reported to Knight that his clip was back up and that his account wouldn't be punished. What happened? Knight filed a DMCA counter-notification claim with YouTube: something that happens 'all too rarely' according to Fred von Lohmann at the Electronic Frontier Foundation. From the article: 'Almost no one ever files a counter notice. That's the biggest problem we've encountered [with DMCA claims on sites like YouTube]. Most people have no idea that right exists.'"

Comments

No Idea at All

[cromar]

Most people have no idea that right exists.

I certainly didn't. Here's a DIY.

Re:No Idea at All

[Applekid]

'Almost no one ever files a counter notice...'

I don't think it's so much that nobody knows counter notices exist, it's that most people infringing are truly infringing. That small percent that aren't and are bona-fide content creators? They'd sure as hell know. Or at least better know if they're going to put stuff online on sites like YouTube.

That said, it'd be amusing if joeuser@aol.com submits a counter notice about his upload (some awesome video he "found") and then gets sued to high hell since it's "under penalty of perjury" that he asserts there's been a mistake.

Re:No Idea at All

[Anonymous Coward]

I don't think that applies to YouTube. They are not your ISP. Uploading content to YouTube is different than setting up a website and hosting the content yourself through an ISP/hosting company.

Re:No Idea at All

[Danse]

Most people have no idea that right exists. I certainly didn't. Here's a DIY. Whenever YouTube takes someone's content down, they should let them know that they can file a counter-claim if they believe they are not infringing. They should give them a link like you did. Problem solved.

Re:No Idea at All

[OECD]

I don't think it's so much that nobody knows counter notices exist, it's that most people infringing are truly infringing.

Well, *I* think that most people are just reluctant to open themselves up to the possibility of having to defend that assertion in court. Easier to just let it be taken down (and email it to the people you really want to see it.)

There's also the amorphous nature of fair use and youtube's defacto 'place to post vids' status. If I'm writing a blog entry on a cinematic technique, say the use of a rack focus, I can absolutely put up a clip that shows that technique. But someone trolling youtube might not realize that's why it's there. And indeed, absent that educational component it might indeed be infringing. So how sure am I that the clip will be found non-infringing? Which context will be judged?

That said, it'd be amusing if joeuser@aol.com submits a counter notice about his upload (some awesome video he "found") and then gets sued to high hell since it's "under penalty of perjury" that he asserts there's been a mistake.

That said, I'd love to see someone actually sued over issuing a take-down notice on what is clearly fair use.

Re:No Idea at All

[AikonMGB]

Isn't there an infobox you can fill out about clips you're uploading? Place a link to your blog entry in that infobox and sate the educational purpose of the video. That way the context doesn't just disappear for people that just happen to be browsing YouTube. They see the link to your blog post, click on it, and then see how the video is used in an educational scenario.

I am not an expert in copyright matters, nor am I experienced in posting YouTube videos; perhaps I'm wrong, but what I've said certainly seems intuitive enough.

Aikon-

Re:No Idea at All

[Nullav]

Uploading content to YouTube is different than setting up a website and hosting the content yourself through an ISP/hosting company.

How so? Because you don't have to take care of page design? It was my understanding that YouTube is, in fact, a hosting company (and thus an Internet Service Provider*), in that they host videos and blocks of descriptive text. How is this different from registering on , setting up a Flash video player, and doing the exact same thing? Is it just that YouTube doesn't explicitly state that it acts as a content host?

*I'm working on the assumption that an ISP doesn't have to provide a person with a connection to the Internet, just that it has to provide bandwidth for content.

Re:No Idea at All

[jimicus]

Whenever YouTube takes someone's content down, they should let them know that they can file a counter-claim if they believe they are not infringing. They should give them a link like you did. Problem solved.

Why on Earth would they want to do a thing like that? Every claim and counter-claim costs time and hence money, you don't want to encourage people to make counter-claims.

And you certainly don't want to be piggy-in-the-middle between the RIAA/MPAA and joeuser@aol.com

Re:No Idea at All

[ratpack91]

According to TFA they do tell you that you can counter-claim:

"YouTube should be commended for notifying their users when they get take-down notices," von Lohmann continued. "They tell you that a notice has been received, and they tell you that you have the right to counter-notice. Not everyone does that."

Re:No Idea at All

[brunes69]

You don't have to be a content creator to not be infringing. It could easily be justified as fair use. Especially if it is a 10 second clip on YouTube which you have editorialized elsewhere on the web.

Re:No Idea at All

[darthflo]

I don't remember exactly but I think not too long ago Viacom sent about one million takedown requests to YouTube. As far as I know, quite a lot* of these were unjustified, but very few users actually took the time to issue a counter-claim.
Now as far as I understand, filing a false DMCA Takedown Request is considered rather evil with perjury and the like probably netting the offender a nice fine and/or an enjoyable vacation behind bars.
Assuming that 5% of Viacom's notices weren't justified and 2% of all affected users had reacted, Viacom could have been taken to court for perjury by a thousand different people. D'you think they would've been fine? Or would this have sucked so much that they'd check before sending the next few takedown requests, saving YouTube quite a bit of work (and strenghtening their legal position in further DMCA-related cases)?

Re:No Idea at All

[darthflo]

*: I don't know any numbers but have heard and read numerous personal accounts of authors of taken down material.

Re:No Idea at All

[Anonymous Coward]

There's also the amorphous nature of fair use and youtube's defacto 'place to post vids' status. If I'm writing a blog entry on a cinematic technique, say the use of a rack focus, I can absolutely put up a clip that shows that technique. But someone trolling youtube might not realize that's why it's there. And indeed, absent that educational component it might indeed be infringing. So how sure am I that the clip will be found non-infringing? Which context will be judged?

I know nothing about rack focus. However, with regards to fair use, a person would be judged on both the purpose of the infringement, and the amount of material being used. Which is to say, fair use might allow you to say, run a 30-second clip demonstrating rack focus if the whole 30 seconds was needed to demonstrate this, or, if you sequenced together several infringing clips within those 30 seconds that demonstrate rack focus. It would be even better if you put your own commentary into it, maybe as some form of visual overlay.

At least, that's how fair use should be. But a good lawyer changes everything.

Re:No Idea at All

[Torvaun]

I know next to nothing about the video making process. That said, I'd like to hear more about these videos featuring "rack focus." It certainly sounds interesting.

Re:No Idea at All

[OECD]

Isn't there an infobox you can fill out about clips you're uploading? Place a link to your blog entry in that infobox and sate the educational purpose of the video. That way the context doesn't just disappear for people that just happen to be browsing YouTube.

Yeah, you can do that, but you're not required to. Maybe a site like Photobucket would be a better example. Regardless, "Fair use" is often about context, so if the context is removed (say, somebody embeds the same video in a post without the additional component) how is it adjudicated? Is the embedder liable, or am I?

My original point was that since these things aren't anywhere near certain (I've never heard of a case based on this) it's generally wiser to allow the DMCA takedown to stand.

(BTW, when I hear "Christopher Knight", I'm no longer going to think "Brady Bunch." That's quite a feat.)

Re:No Idea at All

[OECD]

LMAO. OK, you probably actually know this, but a 'rack focus' is just shifting the the depth of field from a point in the foregound (e.g.) to one in the background, or the other way 'round. Now, one of those points *could* be an actual rack...

Re:No Idea at All

[Jeruvy]

I think you've been under a rock for the last decade. People don't bother learning about these kind of rights since they don't talk about them on shows like CSI or American Idol. I really think these 'shows' should take the initiative to inform people. Regardless, your penile argument that '...most people infringing are truly infringing' is quite amusing. You tube is not Kazaa... Perhaps you have some valid facts to back that up. Personally I wish there was more copyright infringing posts on You Tube, but thats another topic, real content.

A class act

[daveschroeder]

I'd highly recommend everyone actually read TFA (yeah, a possibly futile request), because his reasoned and sensible outlook would do many folks I know a lot of good.

Re:A class act

[MightyMartian]

I did read the TFA. I thought it was a bit mushy and goofy. I think Viacom does deserve some venom. Essentially they tried to steal someone else's content. Now yes, they screwed up, and it wasn't intentional (exactly), but still, I don't see any reason that they deserve consideration.

Re:A class act

[19thNervousBreakdown]

Don't count on the average person pulling this off, it takes real genius.

Re:A class act

[runderwo]

His argument is not really very well reasoned at all. He fails to acknowledge that Viacom was one of the companies that bought the DMCA in the first place, without which he never would have been threatened; this case was so incredibly weak, Viacom would not have bothered with a lawsuit because they would have seen a summary judgement in the defendant's favor.

A few counter-notifications is the cost of doing business in exchange for the incredible power of the anti-circumvention provisions and criminal sanctions of the DMCA, and the presumption of guilt that most providers assign to a DMCA notification!

VH1's theft

[dada21]

As many know, I am anti-copyright to begin with, but I wonder why Knight isn't setting up to sue VH1 for "stealing" "his" content and rebroadcasting it.

Not only did they take his content, but they also attempted to defend his content via the (fraudulent) DMCA and call it their own.

Might as well go David vs. Goliath in this case, and settle the score with VH1 for the fully penalty of the law.

Re:VH1's theft

[king-manic]

I wonder why Knight isn't setting up to sue VH1 for "stealing" "his" content and rebroadcasting it.

It might be difficulty finding a lawyer. A lawyer wanting a % may be hesitant when they know they will be facing a well funded corporation. The end result is not guaranteed nore is the odds of winning known. So he may waste a 100+ billable hours doing % case and end up losing. IANAL but it would be my guess as to why. If he did find a lawyer and if he wins then dozen of lawyers will spring up in each city to offer their services for cases like this. We just need a win first.

Re:VH1's theft

[Why2K]

Perhaps you should have read the article, which answers this very question.

It doesn't look like this is going to wind up in any kind of litigation, and for that I am thankful. If I can die someday without having sued or been sued, then I will die happy. This ends just as I had hoped it would: with the clip back up and, I like to think, with Viacom and me getting to shake hands and move on and wishing each other well. I'll certainly harbor no hard feelings toward Viacom for the past two weeks.

Re:VH1's theft

[praxis]

You didn't read TFA, did you? There he answers the question you just asked.

Re:VH1's theft

[AvitarX]

He sounds undisclosed settlement happy.

Though I actually think he is ust over-nice.

Re:VH1's theft

[Anonymous Coward]

It's not "his". He gave it to YouTube.

Re:VH1's theft

[Anonymous Coward]

A lawyer would be nuts to not take a solid case against a big corporation.

Re:VH1's theft

[RobBebop]

I recall that his comments on /. two weeks ago said that he really enjoyed seeing his work on VH-1. Plus, isn't it the spirit of /. to promote Openness and that *includes* letting Viacom and TimeWarner use the works we've created.

Now... if only they'd open up and let us do the same with the work they produce (or at the very least openly distribute their work on BitTorrent).

Such wishful thinking...

Actually

[prxp]

Most people have no idea that right exists.

Actually, most people don't have copyrights over the material that gets pulled off.

Re:Actually

[Junta]

Actually, most people don't have copyrights over the material that gets pulled off. Actually, most do. Most may not realize it, but copyright is pretty much automatic. You don't even need to post a copyright notice of any sort or register it with anyone, so long as you can provide reasonable proof of authorship. Of course, you can pay for a solid defense in an official way..

Re:Actually

[Constantine XVI]

Copyright is more/less automatic, but you actually have to own the copyright first (which is not the case in a lot of DMCA invocations)

Think of the goodwill

[Yurka]

Google would receive in the community, if they enclosed a blurb with the standard C&D letter sent to people whose clips they take down, informing them of this provision.

Re:Think of the goodwill

[Yurka]

That should read "if only".

I mean, how on Earth could people "not know" when it's spelled out to them?

Re:Think of the goodwill

[homesnatch]

Did you RTFA? "YouTube should be commended for notifying their users when they get take-down notices," von Lohmann continued. "They tell you that a notice has been received, and they tell you that you have the right to counter-notice. Not everyone does that."

Re:Think of the goodwill

[strook]

Well jeez, they already link to tons of ways to protest.

Re:Kathleen Malda's Bogus Journey

[Anonymous Coward]

Sick bastard trolls...

Unfortunately, Fair Use Works Both Ways

[eldavojohn]

As many know, I am anti-copyright to begin with, but I wonder why Knight isn't setting up to sue VH1 for "stealing" "his" content and rebroadcasting it. Probably because his assertion that they stole his content is just as laughable as their assertion that he stole their content. Unless they showed the whole thing, there is this concept of 'fair use' and, I'm sorry to inform you, it applies to companies as well as individuals.

If you make your own little film & a company releases snippets of it on their station with commentary (exactly what happened here), they should be protected just as you would be if you took 30 seconds worth of film from a Tom Cruise movie and over dubbed it with hilarious Scientology remarks at opportune times.

Not only did they take his content, but they also attempted to defend his content via the (fraudulent) DMCA and call it their own. I think you should really read up on this. He can counter sue for the damages incurred from them demanding he take it down, maybe even cover his time and any legal fees he had but nothing more than that. And it would be awful hard for him to define a missing video on his YouTube site in terms of dollars.

Re:Unfortunately, Fair Use Works Both Ways

[farker haiku]

If you make your own little film & a company releases snippets of it on their station with commentary (exactly what happened here), they should be protected just as you would be if you took 30 seconds worth of film from a Tom Cruise movie and over dubbed it with hilarious Scientology remarks at opportune times.

This is arguable the most insightful comment ever seen on slashdot. And potentially one of the most inspiring. Dare I watch a Tom Cruise movie?

Re:Unfortunately, Fair Use Works Both Ways

[Anonymous Coward]

It's not insightful, it's ignorant. Anyone who read the original story posted earlier would be well aware of the fact that Viacom broadcast his entire commercial in total. The fact that the clip was 30 seconds long does not mean it was a small portion. 30 seconds of a 30 second commercial is the whole thing.

They took the whole thing, and used it for commercial purposes.

Re:Unfortunately, Fair Use Works Both Ways

[cpt kangarooski]

Unless they showed the whole thing, there is this concept of 'fair use' and, I'm sorry to inform you, it applies to companies as well as individuals.

Actually, fair use can apply to a use of any length. All else being equal, the more of a work, or the more of the substantive parts of a work, that you use, the less likely it is to be a fair use. That is, it is a factor to be considered. But it is not a determinative factor on its own. For example, when people time or space shift and do so fairly, those are fair uses that involve the entire work.

Re:Unfortunately, Fair Use Works Both Ways

[mr_mischief]

YouTube reserves the right to reuse, rebroadcast, repackage, and a lot more with any of the content you post for free on their site. They also reserve the right to sublicense these rights. It's quite possible Viacom did the Web Junk 2.0 show using his commercial with permission from YouTube.

Of course, that doesn't mean he doesn't have fair use rights to show what they said about a work he originally made. My guess is that since this guy made a Star Wars parody for a political campaign, he might understand at least a bit about his rights of fair use even if he overlooked YouTube's one-sided use policy.

From YouTube's Terms of Service, Section 6 paragraph B:

For clarity, you retain all of your ownership rights in your User Submissions. However, by submitting User Submissions to YouTube, you hereby grant YouTube a worldwide, non-exclusive, royalty-free, sublicenseable and transferable license to use, reproduce, distribute, prepare derivative works of, display, and perform the User Submissions in connection with the YouTube Website and YouTube's (and its successors' and affiliates') business, including without limitation for promoting and redistributing part or all of the YouTube Website (and derivative works thereof) in any media formats and through any media channels.

Re:Unfortunately, Fair Use Works Both Ways

[pthor1231]

IANAL, but that may be able to get deemed an unconscionable clause, seeing how one-sided it as, as well as the position that YouTube is in over the "signer". It's still one more thing in the way of getting a lawyer to actually take the case.

Re:Unfortunately, Fair Use Works Both Ways

[heinousjay]

I'm no lawyer either, but if I were, I would insist on a clause like that. It would be the depth of stupidity to put yourself in a legal situation where someone can sue you for something they placed in your possession. It's basic protection.

Aside from that, uploading to YouTube is voluntary, and far from a necessity. I fail to see how YouTube is in a position "over" uploaders.

Re:Unfortunately, Fair Use Works Both Ways

[pthor1231]

That clause doesn't seem like it alleviates YouTube from any legal situations. You can't give YouTube rights to something you don't have them for. As far as it not being a necessity and a completely voluntary activity, that doesn't mean the contract still can't be unconscionable. See the standard for US case law on unconscionable contracts: http://www.scu.edu/law/FacWebPage/Neustadter/e-books/abridged/main/cases/Williams.html Thats just the first full free copy of it I could find on google. While the case was never finally decided, the fact that it went through at least 3 courts without getting thrown out means that the contract could conceivably be unconscionable. Granted the two issues are seriously different, but again, IANAL.

Well You Could...

[Nom du Keyboard]

Most people have no idea that right exists.

Well you could post an electronic, easy to fill in the blanks, form or link on your main page. That would make for a good start.

Actually...

[Anonymous Coward]

I thought that they did?

Granted, it's buried in a form email, but I'm pretty sure it's in there.

I've filed a counterclaim

[nevali]

I once had a weird situation where I received a notice that somebody was claiming copyright of a photo I'd taken (a self-portrait of all things), on LiveJournal, by way of a DMCA notice.

LiveJournal told me that I could file a counterclaim, and if the original claimant didn't follow it up, I was free to reinstate the photograph. I did, they didn't, so I put it back up.

Re:I've filed a counterclaim

[rhombic]

The follow-up question is did you get that somebody's information, and did you follow up w/ a DMCA abuse lawsuit? To place their takedown notice, they had to sign that under penalty of perjury that they own the content. Obviously they couldn't for your self-portrait. So, you could follow up like the EFF is going after Uri Geller. Folks need to do a lot more of that; a few significant judgements against DMCA abusers plus fees & court costs could go a long way.

Re:I've filed a counterclaim

[nevali]

Nope, for two reasons: one is that we were both situated in the UK (it was a DMCA notice because LiveJournal itself is in the US, and they were hosting the image), and the other was that I really couldn't deal with the headache at the time.

Re:I've filed a counterclaim

[vux984]

Obviously they couldn't for your self-portrait.

Actually copyright for a photo belongs to the photographer. A self-portrait, unless the photo clearly shows you taking the picture of yourself, is not obviously yours.

Re:I've filed a counterclaim

[belmolis]

By making a false DMCA declaration, Geller did more than expose himself to a civil suit - he also committed perjury, which is a felony punishable by up to five years in prison (18 U.S.C. 1621). Why is he not being prosecuted criminally?

Re:I've filed a counterclaim

[IndustrialComplex]

Actually copyright for a photo belongs to the photographer. A self-portrait, unless the photo clearly shows you taking the picture of yourself, is not obviously yours.

Your second statement not correct. (example: camera with a timer or remote control)

The copyright for a photo belongs to the person that owns the copyright for the photo. It sounds redundant, but just because someone operates a camera (or operates a device that triggers a photographic process) doesn't make them the owner of the copyright. This does not automatically imply that the photographer is the one that owns the copyright.

As a counter-example: I set my camera down, and an acorn falls from the tree onto the shutter release. Since I wasn't the photographer, do I not own the copyright to the photo taken? There are lots of weird examples that we can come up with, but the point is, that while a copyright is automatic, the ownership isn't always so clear cut.

Re:I've filed a counterclaim

[vux984]

The copyright for a photo belongs to the person that owns the copyright for the photo. It sounds redundant

Because it is.

but just because someone operates a camera (or operates a device that triggers a photographic process) doesn't make them the owner of the copyright. This does not automatically imply that the photographer is the one that owns the copyright.

Actually it does automatically do just that. It takes 'special exceptional circumstances' for it not to be the case. Circumstances like a contract/agreement assigning the copyright elsewhere.

But in the absence of exceptional circumstances, the photographer is the implied copyright holder. So if you take a picture of yourself taking a picture of yourself, its true that you might not be the copyright holder, but at least its highly probable. If all you have is a self portrait, no conclusion about the likelihood that you took it yourself and/or own the copyright can reaonably be drawn.

As a counter-example: I set my camera down, and an acorn falls from the tree onto the shutter release. Since I wasn't the photographer, do I not own the copyright to the photo taken?

Ok... lets play with that.

If I set my camera down, and you pick it up and take a picture. Who owns the copyright? Me or you? You of course. No different than if you'd written a poem on a piece of my paper. I could claim ownership of the piece of paper if I was dick, but it would still be your poem.

If I set my camera down, and you're picture taking trained pet monkey picks it up and takes a picture? Me or you? You again. What the monkey creates, as your propery, belongs to you. (There was actually case somewhere about this for elephant art iirc.)

If I set my camera down, and you're untrained pet monkey picks it up and takes a picture? Me or you? Interesting question - I could argue that the creative act was me enticing your monkey to take a picture, while you could argue its still your monkey that took the picture. I figure it would still be you. If your 3 year old makes a doodle its her copyright, even if I put a pen and paper in her hand. If I put it in your monkey's hands, then its yours.

On the other hand if I deliberately set the camera down, and coax the monkey into pushing the button - using it as a glorified remote button presser, then its my copyright. But if I try to get the monkey to 'express itself' as your property the expression belongs to you.

If I set my camera down, and an acorns falls out of your tree... same thing... I basically used the tree as an remote button pusher. Its absurd to make the claim the tree did anything creative, so even if its your tree, you have no claim. And my setting the camera down, setup, and pointed at something is (at least marginally) the creative act.

I'm curious if you disagree.

-cheers

Re:I've filed a counterclaim

[Anonymous Coward]

However, the copy of the picture would still belong to the owner of the camera. The creative act gives the right to copy, but in all the examples you gave, the resources used to make the copy belonged to someone else. The property owner would be well within his right to destroy the only copy in existence, which would de facto destroy and claim of copyright.

Re:I've filed a counterclaim

[toddestan]

A self-portrait, unless the photo clearly shows you taking the picture of yourself, is not obviously yours.

A self-portrait, by definition, is yours. If the picture was taken by someone else, it would just be a portrait. Of course, depending on how it was captured, I could see it hard to prove it's the former and not the latter.

Re:I've filed a counterclaim

[Plutonite]

Ah, but you see, if you make the monkey take the picture in a national park and the monkey doesn't belong to either of you, then the US of A (or more precisely the state that owns the park) clearly has the copyright over the creativity here. Also, the guy you got the bananas from *can* claim copyright *if and only if* he has given you the bananas for free, in which case he has partial ownership over the apparatus used to produce the photo. Of course, I win over him as well for giving him the idea. The acorn act is copyrighted by god, and I'm very surprised you asked. Unless you get the monkey owned by the state and fed by a purposeful bystander to drop the acorn at my directions onto your camera, then my girlfriend gets the copyright because the gender group she belongs to has patented inventive ways to make trouble.

Re:I've filed a counterclaim

[petermgreen]

IIRC in the US private individuals cannot bring a criminal prosecution, so for someone to be prosecuted for a crime the government has to care enough to do so.

It's written into the law....

[SlayerofGods]

The reason most people don't take advantage of it is because most of the time they are infact infringing....
If anyone is interested read
(g) Replacement of Removed or Disabled Material and Limitation on Other Liability.
http://www.law.cornell.edu/uscode/html/uscode17/usc_sec_17_00000512----000-.html /shrug

If You Aren't Willing....

[JamesRose]

To fight for your rights, then you don't deserve to have them. "Too many people don't know that they can counter claim", if they felt wronged they should have read up on the subject and they would find the counter claim documentation. Too many people think fighting for your rights can only be done on a march or through the courts, fighting for your rights can just be enforcing them. I highly doubt many valuable videos on youtube get removed via the DMCA, but if they were it's the author's failure to protect their rights that makes the difference.

Re:If You Aren't Willing....

[IndustrialComplex]

I'm not sure I agree with your statement. A person may be willing to fight for their rights, but sometimes the fight just isn't worth it. A person has to pick their battles, especially if they, like you, would like to win the war.

A battle so costly that it makes you lose the war is a battle that you probably would have been better off avoiding.

That goodness

[Creamsickle]

Well, it's about time that some of this "scatter shot" technique being used by the media companies in their so called war on piracy starts backfiring. I'd like to see them become some of the collateral damage, and for the lawmakers to reign them in and make them have a higher evidentiary burden.

As it is, they basically get to threaten anyone without any justification or consequence. It's getting absurd, really.

Re:That goodness

[MightyMartian]

Is there any idea of how many invalid/illegitimate DCMA takedown notices there are? I'd still safely wager most are assertions of legitimate copyright. If the scattershot effect is really bad, then I think fining millions of dollars per fraudulent takedown notice ought to be built into the legislation.

Re:That goodness

[athdemo]

There's not really going to be any damage incurred by them for something like this. Hell, it's incredible that he actually made a counter-claim, but for someone to actually step up and make a real suit about this kind of thing? Incredibly unlikely.

This won't make any difference in their practices whatsoever, I'm afraid.

Re:That goodness

[Anonymous Coward]

Very few are invalid, in my experience. I work at a university in the office that processes DMCA complaints. We've done thousands of them over the last few years, and I could count the invalid ones on my fingers.

Re:That goodness

[edittard]

There's an old fable about the boy who cried 'wolf' all the time. Eventually nobody believed him, so the time the wolf really was there, it ate him (or the sheep) because nobody came to help. Perhaps if anyone makes some number X of claims that are found false, they can be banned from bringing any more cases for some period of time Y.

It'd basically be an extension of the laws concerning vexatious litigants.

We aren't lawyers...

[cyberjock1980]

So we can't exactly sit down with a cup of coffee and 'read' over the DMCA to understand our own rights. Of course, the big companies can! This works to the advantage of the big corporations because we don't know our own rights!

The world would be a much different place if the users were informed as to their rights. Either the company is required to provide you your rights or some kind of repercussion if the company really is indeed involved in frivolous takedowns. Charge a company $100,000 every time someone catches and successfully prosecutes an invalid claim and companies would be more concerned with their OWN 'right'... to stay in the black!

Re:We aren't lawyers...

[Anonymous Coward]

Actually, you can sit down and read the DMCA, its not like they deny you access to the laws if you're not a lawyer. IANAL but I have read the DMCA anyways, after my internet connection had been shut off due to a copyright infringement notice. I got my internet turned back on because I read the DMCA and was able to shoot holes through the notice, this was quite a long time ago when the very first round of notices were sent out. My ISP (University) decided I was right and reconnected me. The only person who is responsible for making sure you are informed of your rights is yourself.

Re:We aren't lawyers...

[Anonymous Coward]

Sure, you're read the DMCA. But lets see how much other legislation passed in 1998 you've read.

The "Taxpayer Bill of Rights III." You've read this, I'm sure. Hafta pay taxes every year, this is very relevant.
Or "Internet Tax Freedom Act" Having read this, I'm sure you're aware why you have to pay sales tax on internet purchases.
And the "Workforce Investment Act of 1998" Hell, you probably read the "Job Partnership Act" it replaced.
There's "Children's Online Privacy Protection Act" or COPPA, very important for anyone running a for-profit website.
And even then we had the "Iraq Liberation Act"
I could go on, but thats just US law.

You've got important judicial decisions, Knowles v. Iowa for example, about when police can and can't search your car during a traffic stop.
Feltner v. Columbia Pictures Television, Inc., regarding jury trial during copyright cases.

Or even International Law. Who here has read the U.N.'s Protocol on Blinding Laser Weapons (They're a no no.)

Re:We aren't lawyers...

[edittard]

Very nice. Now remind me, your point was what, exactly?

A disservice to the rest of the world

[Rhys]

Has Viacom (as a corporation) actually learned anything from this exchange? Probably not. They'll go on sending out questionable DMCA violations because most people will roll over and let Viacom have their way with no fight.

I'd much rather have seen him drag Viacom into court and cost them a lot of money -- because that's all that corporations seem to understand these days. Said loss of money would cause them to at least devote 5 seconds of some human's brain time to the question of "is sending out this DMCA takedown going to land us in court and cause us to lose a ton of money" before sending out future DMCA takedowns.

And that, in my opinion, would have been very good thing.

Re:A disservice to the rest of the world

[StikyPad]

Well, fortunately we have the concept of de minimis, which means the court does not get involved in trivial things. Everyone is free to file counter-notices, though people rarely do (perhaps because the content typically is, in fact, infringing?) Knowing and exercising your rights is part of the responsibility of living in a free society. Too many people put the onus on the government to be their guardian angel, but courts exist as a last resort, not the first line of defense. The expectation that your actions be free of scrutiny or conflict is an unreasonable one, particularly when those actions are intended for public viewing.

Re:A disservice to the rest of the world

[igjeff]

>Has Viacom (as a corporation) actually learned anything from this exchange?

There's no guarantee that Viacom has actually given in as the title of the article indicates.

Yes, the article seems to indicate that Viacom has backed down, but, unless I missed something, there was no communications from Viacom indicating that they backed down. The communication in question was from YouTube indicating that the content had been reposted as a result of the counter-notice.

Keep in mind that, under the DMCA rules, the service provider has to take the content down when given a notice, but it is equally responsible to post the content again if counter-notice is filed. At that point, it is up to the party filing the original notice to file an actual lawsuit to continue to pursue the take-down of the content. Just because they didn't file a lawsuit and get a temporary injunction to maintain the take-down in the 10 days before the counter-notice takes affect, doesn't mean that they don't intend to continue to pursue this issue.

Perhaps there's more communications that are not yet public from Viacom indicating that they don't intend to push forward with this, but just because the content gets re-posted doesn't mean that they have necessarily given in.

As is so often the case, IANAL.

Jeff

Re:A disservice to the rest of the world

[suv4x4]

You DO realize most clips they send notice to are totally the book example of why DMCA notice should be sent.

Mistakes happen on both sides. There's absolutely nothing to drag Viacom in the court about. Mistake happened, counterclaim files, clip restored. Viacom is happy, poster is happy.

Just zealots aren't happy, but they're never happy, right?

Re:A disservice to the rest of the world

[Scudsucker]

You DO realize most clips they send notice to are totally the book example of why DMCA notice should be sent.

And *you* DO realize that these notices are sent out under *penalty of perjury*, which is fairly serious business. If a DMCA claim is frivolous, they deserve to get hit with a counter-claim. That's how the law is set up. And they know this full well.

So no, Viacom should not be let off so easy. But then, you groupthink zealots who run around attacking what you see as Slashdot groupthink are never happy. So run along and find an Apple story so you think you can be the first person to post "Now if this were Microsoft, you'd all be up in arms..."

agreed

[Anonymous Coward]

But most of all it shows their envy of rob, who is successful and does'nt live in his parents basement.

*UPDATE*
This is not a joke either, the captcha in my box is making me type 'molests'. This is sincerely fucked up all around.

No Yielding

[Anonymous Coward]

Viacom didn't "yield" here. They didn't do anything. The poster just complained after his clip was taken down and Youtube put it back up. We've yet to see what Viacom will do about it. They still have a case, since what he put up was Viacom copyrighted material (it included commentary by VH-1, not just his original clip). Of course, he also has a case against them for infringing his copyright in using the clip to begin with, so maybe they're better off just dropping it.

Re:No Yielding

[pclminion]

What "profit" is Viacom being denied by his action? Even if they are legally in the right to demand it, it gains them nothing and makes them look like assholes. It was a dumb move.

Re:No Yielding

[bryny]

Well, maybe no gain for Viacom, but billable time for the lawyer....

Link to the clip in question

[RealGrouchy]

Link to the clip.

It's a clip of a VH1 show that shows Chris' campaign ad for a school board.

- RG>

I had a video takedown

[bbitmaster]

A few months ago I posted a video where I showed how to search for cheats and make game genie codes using an open source NES debugger/emulator called FCEUXD. My video basically showed how to do a cheat search in Contra and alter the game code (using a debugger) to give the player high jump ability. It stayed up for a few months before I received an e-mail from youtube saying the ESA claimed my video was infringing copyrights.

I seriously don't know what happened here, as there are thousands of videos showing rom hacks and related material. I started to file a counter claim, but then realized it would be more trouble than it's worth. Basically I would have to submit a written notice, and youtube claims "that filing a counter notice may lead to legal proceedings between you and the complaining party to determine ownership."

I really don't have the time or money to mess with the ESA right now, so I guess they win. It is a real shame that the ESA has nothing better to do than to hire people to search youtube for game hacking related videos and demand youtube take them down.

Re:I had a video takedown

[Anonymous Coward]

That unwillingness to fight is exactly why companies get away with this kind of crap. Maybe next time you can do a service to everyone and take a little risk for the greater good... oh who am I kidding, you just want others to do that for you.

Re:I had a video takedown

[mdm-adph]

Whoa... but isn't what you did like a perfect example of the proper application of Fair Use?

Yahoo warns you to do that

[dindi]

I had a little copyright issue with a Yahoo Wideget .... (lifted a background image by accident:O )
When I got the notification it was written in the letter, that I have the write to file a counter notification in case I felt I was wrongfully notified (or for whatever else of a reason)

This came from Yahoo legal, and I felt it was presented in a very correct way. Maybe others do not do that, or people do not read these papers ... not sure ...

Luck, not law

[DerekLyons]

Legally his counter notice was nothing more than holding his finger against the inside of a coat pocket and claiming he had a gun. Knight got lucky that Viacom didn't call his bluff.

Re:Luck, not law

[Anonymous Coward]

You're kidding, right? This video comprised almost entirely of content that HE OWNED AND PRODUCED....

Re:Luck, not law

[dr_turgeon]

You're not too bright, are you? Do you really think Viacom wouldn't call anything remotely a bluff?
Yeah. A team of lawyers cowering at the prospect of litigation. Ha!

Re:Luck, not law

[DerekLyons]

Every time a company gets faced with a potential lawsuit - they weigh the returns vs. the costs to determine whether or not to proceed.

Re:Kathleen Malda's Bogus Journey

[Anonymous Coward]

Despite the claims of the atheists, the wise know that reality has its Creator.
Sick scum have their moment here, and may or may not meet judgment in this lifetime.
Justice, however, truly is inescapable, and the wise find comfort in this.

They Shouldn't Have Messed With Chris Knight

[Headrick]

They're lucky they didn't get the airborne laser to the house full of un-popped popcorn treatment as well!

Re:They Shouldn't Have Messed With Chris Knight

[skeeto]

For those who don't get the joke, Chris Knight is a real genius.

Re:They Shouldn't Have Messed With Chris Knight

[Scudsucker]

You suck. Worst joke since this one for the release of The Wizard on DVD.

Re:They Shouldn't Have Messed With Chris Knight

[edittard]

Does that movie suck as much as it would appear to do?

Two Fingers in Pocket, One Gun

[Anonymous Coward]

Yes, his counter notice was him holding his finger in a coat pocket and claiming he had a gun. But Viacom was the first person to do this action when they filed the DMCA. So, who has the real gun?

Copyright misperceptions

[proxima]

Almost no one ever files a counter notice. That's the biggest problem we've encountered [with DMCA claims on sites like YouTube]. Most people have no idea that right exists.

Usual disclaimer: IANAL. Most (or at least many) people have many misconceptions about copyright law, with far more important consequences.

One is that everything you distribute of your own creation is copyrighted (registration is not required except to back up your claim and allow for greater damages). How many people publish their videos to YouTube, get their content used (in full), and not realize that they have some control over whether that is a copyright violation?

Perhaps even more important, the very concept of fair use itself (in the U.S. at least). It wouldn't surprise me if people thought that many more things were copyright violations than really are. I'm sadly lacking in real survey info, but how many people have even heard of the four major tenets of fair use? If you haven't, read the Wikipedia page including the law in the U.S.

As for DMCA counterclaims, I suspect most individuals either 1.) feel that they probably were infringing (even if they could legally argue fair use) or 2.) aren't willing to fight a big corporation in court. As with so many civil and criminal cases, it's much easier just to fold than to fight it. The system is largely designed that way.

One major problem with modern U.S. copyright law is just how big the gray area really is. Are EULAs legal? What can they legally restrict? Are "promotional items" labeled "not for resale" really binding to those who receive them (for an ongoing case about this challenge to the first sale doctrine, see the EFF's page)?

Part of this gray area is that infringement is hard to define except on a case by case basis. Some will happily exploit any gray area, while others will stay far from it and end up bound by fairly restrictive rules. I've heard (on "On the Media", about a year ago) that movie producers will sometimes pay royalties in documentaries for things like ring tones and casual music recorded by the video camera. Common sense suggests that somebody's cell phone going off during a documentary is fair use, but some companies are afraid of litigation.

The unfortunate result is that since fighting back is too much risk or too much work, people will just cave in to the big media companies and their takedown notices.

Re:Copyright misperceptions

[cdrguru]

There is no fair use exemption for redistributing content. There is nothing that allows you to "build" on another's property to make your own in this context.

For example, no matter how cute I think it might be to overlay Neil Diamond's "Heartlight" with the word "head" everywhere Neil is singing "heart", all I can legally do is play the result for myself. Should I take this "derivative work" and publish it in any form - including just making it available for download on the Internet - I will (rightfully) get sued. I don't get any points for it being a parody, for some kind of fair use, for it being some kind of "sampling" or anything else.

Are EULAs legal? Absolutely. Every time one has come up in court it has been ruled enforceable. At no time has a EULA ever been struck down. Good thing that the EULA known as GPL v2 is built on solid ground, isn't it?

As for your idea that somehow including a public performance of a ringtone is "fair use", I'm afraid you are very, very wrong. There is no such thing as fair use when it comes to redistribution in any form - and including casually recorded sounds is certainly redistribution. And a public performance of that material certainly isn't covered by fair use. If I record your speech and play it in a public performance you have considerable rights to stop me, collect punative damages and collect substantial license fees for use in a public performance. Same thing would go for a recording of you playing the kazoo.

You seem to have a lot of interesting ideas about how you would like things to be. Too bad this doesn't correspond very well to the real world.

Re:Copyright misperceptions

[Constantine XVI]

Technically, the GPL isin't a EULA. It's a distribution license. EULAs come into effect when you use a program, distribution licenses come into effect when you pass it on to someone else.

Re:Copyright misperceptions

[proxima]

There is no fair use exemption for redistributing content. There is nothing that allows you to "build" on another's property to make your own in this context.

That's just simply untrue. Quoting from a book, showing a clip of a movie in a movie review show, etc, are all examples of fair use in which one is redistributing content. The redistribution is for comment/criticism, is short in length, and the resulting work does not compete with the work being derived. Thus, even if it's for commercial purposes, it's seen as being allowed under fair use under provisions 2, 3 and 4 (see the Copyright Act of 1976, 17 U.S.C. 107, reprinted in the Wikipedia page).

For example, no matter how cute I think it might be to overlay Neil Diamond's "Heartlight" with the word "head" everywhere Neil is singing "heart", all I can legally do is play the result for myself. Should I take this "derivative work" and publish it in any form - including just making it available for download on the Internet - I will (rightfully) get sued. I don't get any points for it being a parody, for some kind of fair use, for it being some kind of "sampling" or anything else.

I never claimed any such use was fair use. In fact, I alluded to the fact it probably wasn't, when I suggested that most people don't realize their own published works are automatically copyrighted. Weird Al gets permission when he makes parodies of songs. However, as far as I know it's generally seen as fair use if you are directly parodying the content of a copyrighted work, rather than using the song's music (for example) to create a parody of something unrelated.

Are EULAs legal? Absolutely. Every time one has come up in court it has been ruled enforceable. At no time has a EULA ever been struck down. Good thing that the EULA known as GPL v2 is built on solid ground, isn't it?

Many of the more onerous terms in an EULA have never been tested in court. And the GPL is not an EULA - you are free to use GPLed software however you'd like. The GPL grants you permission to redistribute the code under certain conditions. Without the GPL, you would have no rights under copyright law to do this, even though you own a copy. When I was referring to EULAs, I was referring to them in the form of contracts which restrict use, not just redistribution. Things like, "you may not use this program to create things that compete with our products", have shown up in EULAs. That is a restriction on use, not on copying.

As for your idea that somehow including a public performance of a ringtone is "fair use", I'm afraid you are very, very wrong. There is no such thing as fair use when it comes to redistribution in any form - and including casually recorded sounds is certainly redistribution.

Legally, as far as I know, this is very unsettled territory. But your blanket claim about redistribution in any form is incorrect (see above). Imagine a news broadcaster covering an open-air concert on public ground. Recording a band playing for purposes of broadcasting the news is regarded as fair use, with no royalties owed to the band or anyone else. The person on On The Media regarded the incidental ring tone of a person's phone during the making of a documentary to be clearly under fair use, but she was not a lawyer. You can read the transcript for yourself. This, like I said, is still fairly unsettled in court. People pay up because they are afraid to take it to court, not because it's settled precedent.

Re:Copyright misperceptions

[VGPowerlord]

(I am not a lawyer).

As Constantine pointed out, the GPL is not a EULA.

If anything, EULAs are illegal because, despite being End User License Agreements, they do not meet the legal definition of a license: "4) n. a private grant of the right to use some intellectual property such as a patent or musical composition." according to law.com. (There are four other definitions; Three of them involve government, the last is for the verb license)

Let me make one thing perfectly clear: By Title 17 (US Copyright Law), section 117 in particular, I have all the rights I need to install and run a computer program that I have legally obtained. I don't need a license for it and telling me that I do is fraud.

Re:Copyright misperceptions

[cfulmer]

(1) It is possible to 'build' on somebody else's content. See Campbell v. Acuff-Rose, involving a parody of Roy Orbison's Pretty Woman. Your example is probably not a parody, and I'm not even sure you can play the result for yourself -- it's an unauthorized derivative work.

(2) EULAs are not automatically unenforceable, but are still subject to principles of contract law. In recent months, portions of two different EULAs have been struck down. Check out this Wired Article.

There is certainly fair use in redistribution. For example, the McDonald's logo is protected by both Copyright and Trademark. Yet, if somebody makes a movie that happens to contain the McDonald's logo, that person does not have to get permission. (Do you really believe that the producers of "Supersize Me" got permission??) Documentary creators generally clear rights because their insurance carriers require it, or because they're worried that even a non-meritorious suit would be expensive, not because the are legally obligated to. The Center for the study of the public domain publishes a Comic Book (?!) about this (see page 13 of that book.)

Re:Copyright misperceptions

[cfulmer]

Black's defines license as "1. a revocable permission to commit some act that would otherwise be unlawful . . . 2. The certificate or document evidencing such permission."

An EULA is an agreement which grants a (definition 1) license. That makes the EULA a (definition 2) license.

The position of most software publishers will be that Section 117 does not apply, since you are not the "owner of a copy of a computer program," but merely a licensee. I don't think they would care much about calling you the owner of a copy for purposes of section 117, but might for purposes of section 109, where the First Sale doctrine is encoded. That, however, is a squirmy bit of law.

Re:Kathleen Malda's Bogus Journey

[Anonymous Coward]

I find no comfort in punishment.

Most people are pirates

[samuel4242]

Most people have no idea that the right exists.

As much as I want to support fair use and limit copyright, I have to admit that 99.999% of the questionable content I see on places like YouTube are put up there without the permission of the rightful owner. Now, I bet most of the time the rightful owner doesn't care. And most of the time, they're kind of flattered. But I'm not at all surprised that few file counter claims because there's so much copyrighted stuff out there on these sites.

Re:Most people are pirates

[samuel4242]

BTW, before I get flamed, I should point out that most people aren't pirates. Well, if they are, I don't have any data. But I think that most people who put expelled content are pirates. Big difference.

youtube

[sh3l1]

the most important aspect of this story is that youtube keeps the clips if there is a DMCA takedown notice. they could have their own secret stockpile of movies! :)

Hey, I *am* a nice guy! :-)

[TheKnightShift]

He sounds undisclosed settlement happy. Though I actually think he is ust over-nice. If need be, I would have pursued this however far it had to go.

But I'm glad that it didn't have to go any further.

There are other things that I would much rather spend my time pursuing and engaged in. All of this past year there are projects that I've wanted to do but haven't been able to because there's been one fight or struggle after another. And as I said in the post, I don't hold anything against Viacom.

I don't want to have an easier life because I "took Viacom to the cleaners" and got a lot of money out of it. I'd rather have an easier life because I worked hard and earned it on my own, having stayed true to my principles.

And as for whether I "won" in this matter: I would rather it be said that I didn't win anything. In the end, the right thing was done, and I'd like to think that it was in a way that saved credibility and some honor for all parties involved.

But if... if... this hadn't stopped now and I had to keep fighting for this, well...

"Never start a fight, but always finish it." -- John Sheridan

Re:Hey, I *am* a nice guy! :-)

[HTH NE1]

"Never start a fight, but always finish it." -- John Sheridan Technically (and poetically considering these events) John Sheridan was himself quoting the advice his father, David Sheridan, gave him, which John and Delenn in turn passed on in a recording to their son, also named David Sheridan. So...

"`Never start a fight, but always finish it.'" -- John Sheridan quoting his father's, David Sheridan's, advice to him

Unless of course you're in the UK where the single and double quotes have their order reversed.

However, I don't think this is the first time a counter-notice has been filed. I recall there was one other, and a second DMCA takedown notice was filed and the clip taken down a second time, which was a violation of procedure both by the sender of the second takedown and of the service provider honoring the second takedown. Then serious damages attach. It was mentioned on slashdot, but I don't recall whether there was any resolution thereafter. (I wish I had time to search for the link, but I gotta get away from the computer for awhile now.)