Viacom Yields to YouTuber Who DMCA Counterclaimed 113
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.'"
No Idea at All (Score:5, Informative)
I certainly didn't. Here's a DIY [cmu.edu].
Re:No Idea at All (Score:4, Interesting)
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 (Score:5, Insightful)
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: (Score:1)
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
Re: (Score:2)
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 additi
Re:No Idea at All (Score:4, Funny)
Re: (Score:2)
Re: (Score:2)
Re: (Score:1)
Re: (Score:2)
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 s
Re:No Idea at All (Score:5, Insightful)
Re:No Idea at All (Score:4, Insightful)
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: (Score:1)
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 af
Re: (Score:1)
Re: (Score:1)
A class act (Score:5, Interesting)
Re: (Score:2)
A disservice to the rest of the world (Score:5, Insightful)
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: (Score:2)
Re:A disservice to the rest of the world (Score:5, Informative)
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: (Score:3, Insightful)
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: (Score:1)
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
Re: (Score:2)
Don't count on the average person pulling this off, it takes real genius.
Re: (Score:2)
A few counter-notifications is the cost of doing business in exchange for the incredible power of the anti-circumvention provisions and criminal sanct
VH1's theft (Score:5, Insightful)
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: (Score:2)
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 o
Re: (Score:2, Insightful)
Unfortunately, Fair Use Works Both Ways (Score:5, Insightful)
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.
Re: (Score:2)
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: (Score:3, Interesting)
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 a
Re: (Score:2)
Re: (Score:1)
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: (Score:2)
Re: (Score:2)
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 fa
Re:VH1's theft (Score:5, Informative)
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 (Score:5, Funny)
Though I actually think he is ust over-nice.
Re: (Score:1)
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...
Hey, I *am* a nice guy! :-) (Score:3, Interesting)
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 mo
Re: (Score:2)
"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-noti
Re: (Score:2)
Actually (Score:5, Insightful)
Actually, most people don't have copyrights over the material that gets pulled off.
Re: (Score:2)
Re: (Score:2)
Think of the goodwill (Score:3, Interesting)
Re: (Score:2)
I mean, how on Earth could people "not know" when it's spelled out to them?
Re:Think of the goodwill (Score:5, Informative)
Re: (Score:2)
Well You Could... (Score:2)
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.
I've filed a counterclaim (Score:4, Interesting)
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: (Score:3, Insightful)
Re: (Score:2)
Re: (Score:2)
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: (Score:2)
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. Thi
Re: (Score:2)
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/agree
Re: (Score:2)
Re: (Score:2)
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: (Score:2)
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 [cornell.edu]). Why is he not being prosecuted criminally?
Re: (Score:2)
It's written into the law.... (Score:2)
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 [cornell.edu]
If You Aren't Willing.... (Score:2)
Re: (Score:2)
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 (Score:2, Interesting)
As it is, they basically get to threaten anyone without any justification or consequence. It's getting absurd, really.
Re: (Score:3, Insightful)
Re: (Score:1, Interesting)
Re: (Score:1)
This won't make any difference in their practices whatsoever, I'm afraid.
Re: (Score:1)
It'd basically be an extension of the laws concerning vexatious litigants.
We aren't lawyers... (Score:2, Insightful)
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 so
Re: (Score:1, Insightful)
Re: (Score:1)
Re: (Score:2)
Re: (Score:1)
Link to the clip in question (Score:3, Informative)
It's a clip of a VH1 show that shows Chris' campaign ad for a school board.
- RG>
I had a video takedown (Score:2, Interesting)
I seriously don't know what happened here, as there are thousands of videos showing
Re: (Score:2)
Yahoo warns you to do that (Score:2)
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
Luck, not law (Score:2)
Re: (Score:1)
Yeah. A team of lawyers cowering at the prospect of litigation. Ha!
Re: (Score:2)
They Shouldn't Have Messed With Chris Knight (Score:3, Funny)
Re: (Score:1)
Re: (Score:1)
Re: (Score:1)
Copyright misperceptions (Score:4, Informative)
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 [wikipedia.org] 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 [eff.org])?
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: (Score:2)
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)
Re: (Score:2)
Re: (Score:3, Interesting)
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, i
Re: (Score:2)
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 [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)
Re: (Score:2)
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 own
Re: (Score:2)
(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. [wired.com]
There is certainly fair u
Most people are pirates (Score:2)
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: (Score:2)
youtube (Score:1)