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

[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

[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

[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.

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.

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

[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

[AvitarX]

He sounds undisclosed settlement happy.

Though I actually think he is ust over-nice.

Re:VH1's theft

[Anonymous Coward]

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

Actually

[prxp]

Most people have no idea that right exists.

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

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

[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."

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

[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.

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.

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.

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!

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

[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?

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.

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!

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

[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.

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