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.'"

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.

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: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 [e-mail] 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.

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.

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

[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: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 [youtube.com], 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 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: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 [onthemedia.org] 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