Viacom Accuses Guy Of Copyright Infringement For Showing Video Of Viacom Infringing On His Copyright

from the follow-that? dept

Thu, Aug 30th 2007 2:56pm — Mike Masnick

Ben S. was the first of many folks to submit to us this incredible story of Viacom's latest ridiculous claim of copyright infringement. As you're most likely aware by this point, Viacom is in the middle of a nasty $2 billion lawsuit with Google over what it alleges are videos that infringe on Viacom's copyright appearing on YouTube. Of course, in making those claims, Viacom has been known to be a bit too aggressive in taking down videos -- including some that clearly did not violate Viacom's copyright. This latest case, however, may be the most ridiculous.

VH1 is a Viacom property that has a popular TV show called "Web Junk 2.0." It basically just takes the more popular/funny/stupid clips that show up on YouTube every week and shows them on TV along with some goofy commentary from the show's host. I'd always wondered if Viacom compensated the owners of those videos -- especially given the company's position about YouTube. It turns out that neither Viacom nor VH1 compensate the video owners, or even ask their permission. It just assumes that it can use them. Most turn out to be perfectly happy (not surprisingly) to get this sort of free publicity. One guy thought it was so cool that he recorded the clip of Web Junk that featured his own video and posted that on YouTube so he could blog about it. And, in an incredibly ironic move, Viacom sent a takedown notice to YouTube forcing it offline. Just to make it clear: Viacom used this guy's work without permission and put it on TV. The guy then takes Viacom's video of his video and puts it online... and Viacom freaks out claiming copyright infringement. Effectively, Viacom is claiming that it's infringement of Viacom's copyright to display an example of Viacom infringing on copyright.

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Filed Under: copyright, video
Companies: google, vh1, viacom, youtube

41 Comments

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Dr. Klahn, 30 Aug 2007 @ 3:01pm

Pro bono publico
There has got to be a lawyer out there who'll take this one on the sheer speculation of putting Viacom's feet into the fire.
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Anonymous Coward, 30 Aug 2007 @ 3:10pm

Power corrupts. Absolute power corrupts absolutely.

I hope the ACLU or someone smashes Viaconjob - and everyone else who pulls this crap - flat. A humongous penalty might get their attention.
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Levi Blackman, 30 Aug 2007 @ 3:21pm

Big Mistakes
I think that stuff like this might help open a lot of people's eyes to how ridiculous the current copyright laws are.

And the money involved will attract a lot of attention. Hopefully this guy does well in his case, of course, I can't really see how he can't, unless the world really has gone to the wayside.
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Anonymous Coward, 30 Aug 2007 @ 3:32pm

It's Stories like this that make me want to punch puppies.
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Anonymous Coward, 30 Aug 2007 @ 4:04pm

hit ViaCon with a takedown order of his own
He should have issued a takedown order against viacon for the show that infringed on his video requiring them to pull any internet and broadcasts, and forbid them from attempting rebroadcast at a later date.
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TF, 30 Aug 2007 @ 4:11pm

OMG!!!
How apropos! Certianly not unexpected.
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SUE, 30 Aug 2007 @ 4:20pm

HE SOUL SURE VIACON FOR COPYRIGHT INFRINGMENT
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Legal Mike, 30 Aug 2007 @ 4:22pm

Stop and think
Viacom used the video with commentary which is fair use. The kid just took the video from Viacom without commentary which is not fair use. keep in mind that Viacom had commentary over the video.
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B, 30 Aug 2007 @ 4:30pm

RE: Stop and think
I'm not very knowledgeable about legal matters, but that sounds wrong. You can use any video if you add commentary? So it would be legal for me to release 300 (for example) if I add a short commentary at the beginning?
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Anonymous Coward, 30 Aug 2007 @ 4:32pm

I think Viacom has a copyright on that, too.
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Kari, 30 Aug 2007 @ 4:34pm

Viacom
Sounds like there are some attorneys at Viacom who have too much time on their hands. If I was one of those persons who had to remove a video of my video on a Viacom station, I think I would locate a REAL copyright attorney to file an action against Viacom for compensation for showing my video without their permission. Come on folks, to copyright Carlos Mencia, can you say, "DEE DEE DEE"?
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Michael, 30 Aug 2007 @ 4:43pm

Re: Stop and think
Eh, so what makes you think this kid didnt have any commentary about the video of them showing his video? Its alright for Viacom to comment on his video, but not right for the kid to comment on their commentary of his video? Insane.
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Kryptos, 30 Aug 2007 @ 4:50pm

job justification
The nonsense in the corporate world has gotten out of hand. These so-called professional, executives/lawyers are way over paid and apparently have little else to do with their time than to pursue this copyright crap.

It's time to do away with attorneys. They have ruled long enough.
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mermaldad, 30 Aug 2007 @ 4:55pm

Strategy
I agree with B, just because Viacom added commentary doesn't make it fair use. Part of the equation is how much of Chris Knight's commercial Viacom used. If they showed an excerpt with commentary, it's fair use. If they showed the commercial in its entirety, or even a large portion of it, it's probably not fair use. Similarly, Chris Knight, did post with commentary, in his blog. The problem is that it is possible to access the video without the commentary directly on YouTube. And of course, the same rules about excerpting apply to his use of Viacom's commentary.

Having not viewed the broadcast or Chris Knight's YouTube posting, I can't form an opinion about who infringed on whom, but I do think that Viacom is on shaky ground in the court of public opinion. In a sense, Chris Knight has already won, because his blog gets mentioned on Techdirt, Slashdot, and others, while Viacom comes off looking like thugs.
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Patrick, 30 Aug 2007 @ 5:22pm

More complicated then it may look
First let me say that this case is not more ridiculous then Viacom sending take down notices for content that is clearly not theirs; it is much more ironic (oh lets sue Google because their stealing our stuff and the only thing that is posted is our copyrighted work; then lets make a show that just replays You Tube content).

Second, you can't send a take down to a TV channel.

Third, this might not be as clean cut as Legal Mike makes it seem; mainly because fair use isn't as clean cut as he makes it seem. Fair use is defined as:

"In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include—

1. the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
2. the nature of the copyrighted work;
3. the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
4. the effect of the use upon the potential market for or value of the copyrighted work.

The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors."

So lets consider each factor one at a time:
1) Purpose or Character- While this is clearly commercial use, the commercial vs educational part of this consideration has been played down. So the primary thing to look at is if the use is transformative or merely derivative. Now, Legal Mike talked of how Viacom made commentary about it, but according to Folsom vs Marsh, "if [someone] thus cites the most important parts of the work, with a view, not to criticise, but to supersede the use of the original work, and substitute the review for it, such a use will be deemed in law a piracy." Since then it has further been defined as "the enquiry focuses on whether the new work merely supersedes the objects of the original creation, or whether and to what extent it is "transformative," altering the original with new expression, meaning, or message. The more transformative the new work, the less will be the significance of other factors, like commercialism, that may weigh against a finding of fair use." This last part is the most important part. All 4 factors must be taken into account, just because the work contains commentary about the original does not mean that it will always be fair use.

2) Nature of the Copied Work- I doubt that this would have that much of an importance here.

3) Amount and Substantiality- I can't actually watch the video because I am in a computer lab but I am guessing from the comments that Viacom used the entire video. This is a bad thing for Viacom.

4) Effect Upon Works Value- It might not seem like You Tube clips are that valuable, "the burden of proof here rests on the defendant for commercial uses, but on the copyright owner for noncommercial uses." Therefore it is on Viacom to show that fair use applied here. Also this has been labeled as the single most important factor of the 4. Viacom could have just as easily licensed the content, meaning using it for free took away the potential licensing value.

While this case would be very much in the air and you can't know if something is fair use until it has been judged in court, but I personally don't think this is fair use. If this is true then Viacom's work is derivative and as such infringing. If this case actually goes to trial (doubtfully) and they find that Viacom did infringe, it could have some pretty far reaching effects.

I would also like to point out that the person wouldn't get any money because the only damages give for copyright infringement are actual (damages to profit and such) and statutory (damages required by law). Since the person who posted the content didn't suffer any actual damages (except perhaps how much they could make off licensing) and the only way to get statutory damages is to have registered the work before it was infringed. If Viacom registered the work though there might be some sort of recourse.
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Patrick, 30 Aug 2007 @ 5:24pm

I forgot to finish my thought
To finish my copyright thought, if Viacom's work was infringing, then he has every right to post it on his blog, since technically it is his.
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Jimmy Z, 30 Aug 2007 @ 5:36pm

...
I just puked in my mouth a little
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V, 30 Aug 2007 @ 6:55pm

If you check out YouTube's terms of use, you give them permission to do this when you upload a video.
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Jeremy, 30 Aug 2007 @ 7:14pm

Thanks V for putting it so simply. Just to reiterate - If you sign their terms of use, then you have allowed them to use your video how they please. That doesn't mean you can use their broadcast how you please. If you don't like it - don't post.
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dinkster9, 30 Aug 2007 @ 7:18pm

anyone read the terms of use agreement?
I don't think anyone has mentioned the fact that in the terms of service agreement when you upload videos to youtube, it specifically states all the things that can't be uploaded...but (i am assuming here, i have no use for actually reading that 20 page document) it most likely states that anything uploaded becomes their property for them to do as they please, like, want, etc. With no compensation expressed or stated for any use of any uploaded video. In a sense, you are giving them all rights to do whatever they want and profit as much as they want from anything you upload (assuming its actually yours in the first place).

In a nut shell, them stealing your video and making a profit on it by airing it on a tv show is well within their rights (i assume), but you reposting the video from the tv show is not because you don't actually own *that* video, it was from tv.

Granted this is one of the stupidest things i've ever heard and i'm not sure why ANYONE uses youtube anymore. I mean come on, they are destroying themselves one stupid lawsuit after another.
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Jew Lawyers, 30 Aug 2007 @ 8:21pm

Lawyers
Shows the true colors of our legal system don't it? Those pesky jew lawyers will think of anything.

Even if a lawyer loses they still get paid. Absolute bullshit.
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Nick Demou, 31 Aug 2007 @ 12:30am

No think before you stop
> the kid just took the video from Viacom without
> commentary which is not fair use

"the kid" (C. Knight) took a tiny part of VH1's show. That tiny part contained for the most part his own video so VH'1 actual footage was no more than 10secs. And C. Knight took that 10secs to blog about it - do you know what bloging is? Hint: it has a lot to do with commentary.

Viacom acts without respect to anything except it's precious "Intellectual Property". They've brainwashed their minds with their own lies so much that they made this ridiculous mistake.
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Ellie, 31 Aug 2007 @ 1:37am

Re: RE: Stop and think
You could use 300 if you had commentary over the WHOLE movie - and it needs to be parody. What Viacom did was fair use. If the videos that Viacom are trying to get down had commentary over the top - and that was the point of the video, not just to get around the law, then Viacom wouldn't have a case.
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Killer_Tofu (profile), 31 Aug 2007 @ 5:35am

YOUTUBE Terms of Service or whatever
Those of you mentioning that it is in YouTube's terms of service that they can use your video for whatever would do well to remember that Viacom / VH1 is the group who took the video from YouTube. You signed the rights to your video away to YouTube / Google, so Viacom / VH1 taking it is not the same as Google using it. You never signed away the rights to Viacom, just to Google. They are not the same company so please do not make it sound like its okay for them to use it because Google owns it, not them.
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Anonymous Coward, 31 Aug 2007 @ 8:10am

Viacom is a bloated pig
Viacom is such a bloated pig of a company. They have no strategy and know it. Someone should buy them up (private equity), part them out, and sell off the disparate properties to targetted media companies who can take better care of their market segments...
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SailorRipley, 31 Aug 2007 @ 8:32am

Re: Re: RE: Stop and think
are we so sure what Viacom is doing is fair use?

After all, they use the entire videos, not part of them, and just because they put a commentary over it, doesn't make it (a) parody...

So I am far from certain that Viacom itself would meet the criteria you mention
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Smarter than Jeremy, 31 Aug 2007 @ 8:41am

Re:
just to reiterate what we know: dude "signs" terms of use with YouTube, hence allowing YouTube to use his video how they please...

So where exactly are the facts to support that Viacom had the right to use the video?
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Smarter than V, 31 Aug 2007 @ 8:42am

Re:
YouTube =/= Viacom
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Anonymous Coward, 31 Aug 2007 @ 8:46am

Re: anyone read the terms of use agreement?
I think a lot of people have read the terms of service agreement and know what rights are being signed over to YouTube and didn't mention anything about it since it's Viacom that is using the video
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Killer_Tofu (profile), 31 Aug 2007 @ 10:00am

Good to see
I am not the only one who caught that the idea of YouTube's agreement means absolutely nothing at the moment since it was Viacom using the video.
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andy, 31 Aug 2007 @ 10:11am

i always wondered...
i always wondered what form an ouroboros would take irl. http://www.answers.com/main/ntquery?s=ouroboros&gwp=13

heart,
andy.
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ricky berlin (profile), 31 Aug 2007 @ 1:27pm

infringement
Clearly a case of meta-infringement
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John (profile), 31 Aug 2007 @ 2:26pm

Welcome to corporate America...
... where the motto is "If you do it, it's wrong and I'll take you to court. If I do it, it's fine."

You violate a copyright and the RIAA sues you.
The RIAA violates a law in its attempt to sue you? That's fine.

Viacom takes your video from YouTube, adds commentary, and shows it on TV? That's okay.
You take their video and add a review? That's bad.

You loan someone money and charge a 25% interest rate? That's usuary and you could go to jail for loan-sharking.
A credit card company charges you a 25% interest rate? That's completely legal and sometimes called "competitive pricing".

Anyway, back to the topic: Viacom must have some huge you-know-whats to think they're allowed to take videos from a site that they're actively suing and issuing takedown notices to.
If I were YouTube, I'll countersue Viacom for using the vidoes without permission AND for making money off them. After all, VH-1 makes money from advertisers who run commercials during the "WebJunk" show (or whatever it's called).

Maybe Viacom can claim "fair use" since the show is "commenting" on the videos, but my original point stands: why would Viacom take videos from a company that they're actively suing??
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Clueby4, 31 Aug 2007 @ 2:26pm

Sigh
Who cares about the frelling TOS, the guy didn't have an issue with them using it his content silly sheep.

What he's pissed about is Viacom obtusely and maliciously sending a DCMA takedown notice on his posting of the part of the VH1 show with his video in it.

What really concerns me is that lack of enforcement for the filing of bogus DCMA notices, and that knowingly cause doesn't cut it, since I think the burden is on the accuser to ensure that they are filling a valid notice.
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Bizmaitx, 31 Aug 2007 @ 6:20pm

case of old media Vs new media
I wonder if Viacom's latest action in a way "condones" what YouTube and its users are doing.

YouTube is an excellent platform for amplifying what is hot in television and music. In short, it help promote Viacom shows .... for Free!

I am not naive enough to think Google/YouTube corporation is actually altruistically, but Viacom's actions ultimately hurt Viacom and their viewers.
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00islangirl00, 13 Apr 2009 @ 6:32am

That just leads to hippocracy.
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00islangirl00, 13 Apr 2009 @ 6:32am

That just leads to hippocracy.
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Anonymous Coward, 15 Apr 2009 @ 1:30pm

Re: job justification
"It's time to do away with attorneys"

I hate it when people say this. Its not the lawyers who are the problem. Its the executives at the companies. The laywers are the only one's who are there to protect your rights. If Viacom or some other company rips you off, the only people who are going to stand up for you and be able to make a difference are lawyers. If the government tries to infringe on your freedoms, the only people who will stop them are the lawyers.

Stop giving lawyers a bad rap, cause they're the only one's who can protect your rights and freedoms.
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Anonymous Coward, 15 Apr 2009 @ 1:33pm

Re: Re: anyone read the terms of use agreement?
Yeah but if Youtube gives your video away freely to anyone, the Viacom is fully within their rights to take it and do whatever.

It's now youtube's video, and youtube gives it to Viacom for free. The only people allowed to sue Viacom is youtube, not you.
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Anonymous Coward, 15 Apr 2009 @ 1:37pm

It's not your video
Lot's of people keep bringing up the youtube TOS. Which say that when you upload the video it now belongs to youtube and they can do whatever they want with it.

I agree that youtube is not viacom. But since you gave the video to youtube, and viacom got it from youtube, you have no legal claim over how the video gets used.

You gave the video to youtube, now youtube owns it. They give it away for free to anyone. Viacom gets a copy of it from youtube. Viacom didn't infringe on your copyright, because you gave your copyright away to youtube, which gave it to Viacom.

So Viacom was not infringing on anything. The only entity that can sue for copyright infringement is youtube, since they now own your video.
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Adrian, 25 May 2009 @ 9:24pm

Youtube's ToU
From their ToU 6th guideline third paragraph.

"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. You also hereby waive any moral rights you may have in your User Submissions and 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. The above licenses granted by you in User Videos terminate within a commercially reasonable time after you remove or delete your User Videos from the YouTube Service. You understand and agree, however, that YouTube may retain, but not display, distribute, or perform, server copies of User Submissions that have been removed or deleted. The above licenses granted by you in User Comments are perpetual and irrevocable."
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