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Punishing Corporate Copyright Abusers

Chris Knight says, “Viacom hits me with copyright infringement for posting on YouTube a video that Viacom made by infringing on my own copyright!

Viacom is claiming that I have violated their copyright by posting on YouTube a segment from it’s VH1 show Web Junk 2.0… which VH1 produced – without permission – from a video that I had originally created. Viacom used my video without permission on their commercial television show, and now says that I am infringing on THEIR copyright for showing the clip of the work that Viacom made in violation of my own copyright!

This looks, if the facts are as Knight represents, like the standard, arrogant big-media goof in the copyright war — issuing takedown notices that have been poorly researched. It seems reasonable to assume that Viacom will recognize this and back down, especially now that the case is going to get wide publicity. Then again, the entertainment industry is not exactly known for listening to reason.

And when the weight of big corporations is thrown against the little guy, the rule seems to be guilty until proved innocent. And the cost of proving innocence is high. This imbalance cries out for more effective countermeasures to abuse.

There are penalties in copyright law for using takedown notices frivolously (again, this may not be that specific situation). Perhaps this is the kind of case the EFF (Electronic Frontier Foundation) might want to take up. The organization took Diebold, a maker of defective voting machines, to court several years ago for knowingly misrepresenting copyright infringement, and won a judgement against the company.

Slightly off-topic: Does Knight’s use of Star Wars imagery in his video have any trademark implications?

10 Comments on “Punishing Corporate Copyright Abusers”

  1. #1 Danny Glover
    on Aug 30th, 2007 at 7:55 am

    Mr. Knight appears to have a good case that “fair use” protects his right to post the segment featuring his own work. But Viacom also appears to have been within its rights to use his video without seeking his direct permission. He granted that permission indirectly by posting the video to YouTube. That’s the whole point of video-sharing sites.

    A commenter at Knight’s blog helpfully pointed to the YouTube terms of service, which include this:

    “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. You also hereby grant each user of the YouTube Website a non-exclusive license to access your User Submissions through the Website, and to use, reproduce, distribute, display and perform such User Submissions as permitted through the functionality of the Website and under these Terms of Service.”

  2. #2 Chris Knight
    on Aug 30th, 2007 at 8:34 am

    “Does Knight’s use of Star Wars imagery in his video have any trademark implications?”

    Being the guy who made the commercial, I’ll answer that :-)

    I was VERY careful not to use elements taken directly from the Star Wars movies. Using cheap props like $2 toys from Wal-Mart (the Death Star and TIE Fighter) is okay. So is making your own lightsaber effects. The sounds for the lightsaber were made using an electric razor and a metal bowl (and a lot of massaging in Adobe Audition). The music was found and used through Creative Commons (I’m definitely not a musician). Just to be safe I ran the ad by a bunch of people who’s job it is to make sure that things like this are safe to broadcast, and they all said that it was.

    A few months ago George Lucas’s educational website Edutopia.org put up a link to the YouTube video as a recommended educational link. That’s not necessarily an endorsement of the ad… but I thought it was nice all the same :-)

  3. #3 Dan Gillmor
    on Aug 30th, 2007 at 8:54 am

    Danny, the highlighted language appears to me to give YouTube users only the right to redistribute etc. on the Web, not on TV.

    But you point out a significant point about YouTube: its outrageous terms of service.

    Chris, I’d urge you to remove your video from YouTube and put it on Revver or Blip.TV or one of the sites that lets you set the copyright terms — and suggest that you post it under a Creative Commons non-commercial license. I suspect that would (legally, anyway) protect you for sure from Viacom’s cut-and-paste routine. I’m not a lawyer, however, so I can’t say for sure.

    YouTube’s failure to give people the option to post under a CC license is one of the service’s least attractive features.

  4. #4 Rich Pearson
    on Aug 30th, 2007 at 10:05 am

    Dan,

    I’d posit that a lot of the “goofs” in the copyright wars could be solved by a more objective look at the Fair Use Definition. It’s as if companies are applying a “takedown first, analyze later” approach.

  5. #5 Dan Gillmor
    on Aug 30th, 2007 at 3:59 pm

    Rich, no “as if” about it — that’s exactly what they’re doing, and it’s an abusive practice.

  6. #6 Jon Garfunkel
    on Aug 30th, 2007 at 4:11 pm

    Dan, good point. It hasn’t been made enough. YouTube has been showered with torrents of press over the last couple of years. Has anyone ever asked them why they don’t give users the option to choose their own licensed?

    Well, as long as Viacom is cutting down re-postings of their cop , they should circumcise the postings of one YouTube user “JewsWorldPower” who has posted an entire segment from the Colbert Report to accompany his antisemitic ramblings in the description. (leaving me to ask– how many users does it take to flag content as offensive before YouTube acts?

  7. #7 Rich Pearson
    on Aug 30th, 2007 at 5:36 pm

    Dan – agreed. Abusive and clearly not a healthy one.

  8. #8 Marco Raaphorst » Blog Archive » Gekkigheid bij YouTube
    on Sep 1st, 2007 at 4:09 pm

    […] Viacom ‘infringed’ zelf omdat iemand een VH1 show op YouTube ‘infringed’ hee…. En die advocaten en juristen maar lachen… […]

  9. #9 Center for Citizen Media: Blog » Blog Archive » YouTube Reverses Course on User’s Video: Reposts It
    on Sep 13th, 2007 at 2:19 pm

    […] Knight, who’s been unfairly treated by media giant Viacom, now says: YouTube has restored my […]

  10. #10 Copycense
    on Sep 17th, 2007 at 5:06 pm

    […] for Citizen Media. Punishing Corporate Copyright Abusers. Aug. 30, 2007. That Viacom would issue a DMCA takedown notice to a YouTube subscriber whose own […]