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| Chilling Effects Clearinghouse > DMCA Safe Harbor > Weather Reports > Better Know a Lawsuit | Location: https://www.chillingeffects.org/dmca512/weather.cgi?WeatherID=587 |
Andy Gass, Samuelson Clinic, Boalt Hall, March 27, 2007
Abstract: Last week, the authors of a short video parodying “The Colbert Report” filed suit against Viacom, corporate parent to the show’s network and no stranger to enforcement actions in its own right. The alleged offense: telling YouTube to take down the clip, “Stop the Falsiness,” when Viacom knew or should have known that excerpted selections from the TV show did not infringe copyrighted material but instead amounted to “self-evident fair use.”
Tonight’s number one threat to America: bears--or violations of the DMCA’s prohibition against knowing material misrepresentations in takedown notices?
Last week, the authors of a short video parodying “The Colbert Report” filed suit against Viacom, corporate parent to the show’s network and no stranger to enforcement actions in its own right. The alleged offense: telling YouTube to take down the clip, “Stop the Falsiness,” when Viacom knew or should have known that excerpted selections from the TV show did not infringe copyrighted material but instead amounted to “self-evident fair use.”
Setting aside the weirdly ‘meta’ facts of this particular episode (an ironic parody of an ironic parody suing its mock target? Trippy. . .), a suit against Viacom for trying to enforce rights it doesn’t have was about as predictable as Stephen Colbert’s insulting the President at last year’s White House Correspondents dinner. Which is to say that once things got rolling, you pretty much knew what was coming.
In the wake of failed negotiations over a prospective licensing deal with YouTube, the corporate giant (Viacom, that is; not Google, which owns YouTube) has not just sued the video-hosting site, but has embarked on a massive takedown notice campaign, reportedly demanding the removal of more than 100,000 allegedly infringing clips. The legal glitch is that the very same provision of the Digital Millenium Copyright Act that prescribes the notification procedure that Viacom is availing itself of--section 512--also says that you really can’t go around sending takedown notices about material that you know doesn’t infringe your copyrights.
There have been a number of reports, however, of clear-cut non-infringers receiving takedown notices from Viacom. In fact, the Electronic Frontier Foundation posted a video about them to YouTube. It came as no surprise, then, to cognoscenti of the DMCA wars to learn last week that EFF had teamed up with Stanford Law School’s Center for Internet and Society to file suit over Viacom’s apparently overzealous enforcement.
What is slightly surprising is that the case they chose is hardly. . . Lincolnish, to borrow a Colbertism. Critics’ concern about unwarranted takedown notices is that attempted enforcement of non-existent rights under copyright law chills legitimate speech. (among other problems). The particular video at issue here, however, is not especially political (despite being made by MoveOn.org), or scholarly, or otherwise characterized by classic indicia of core First Amendment activities. It’s a mock-criticism of a parodic TV show, which extensively borrows clips from the TV show in order to fake its displeasure with the host’s (fake) positions. Yes, the clips are almost certainly fair use--but the whole enterprise vaguely reeks of pointlessness.
The threat of pointlessness, however, seems not to have prevented Viacom from choosing 100,000 takedown notices and a lawsuit over licensing its content to YouTube, which was what started this kerfuffle to begin with. Perhaps, then, the best outcome would be one it would be easy to imagine Mr. Colbert, himself, pronouncing: "DMCA, you are dead to me."
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