Viacom Accuses Guy Of Copyright Infringement For Showing Video Of Viacom Infringing On His Copyright
from the follow-that? dept
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
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Pro bono publico
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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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Big Mistakes
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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hit ViaCon with a takedown order of his own
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OMG!!!
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Stop and think
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Re: Stop and think
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No think before you stop
> 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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RE: Stop and think
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Re: Re: RE: Stop and think
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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Viacom
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job justification
It's time to do away with attorneys. They have ruled long enough.
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Re: job justification
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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Strategy
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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More complicated then it may look
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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I forgot to finish my thought
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...
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Re:
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Re:
So where exactly are the facts to support that Viacom had the right to use the video?
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anyone read the terms of use agreement?
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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Re: anyone read the terms of use agreement?
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Re: Re: anyone read the terms of use agreement?
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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Lawyers
Even if a lawyer loses they still get paid. Absolute bullshit.
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YOUTUBE Terms of Service or whatever
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Viacom is a bloated pig
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Good to see
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i always wondered...
heart,
andy.
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infringement
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Welcome to corporate America...
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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Sigh
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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case of old media Vs new media
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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It's not your video
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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Youtube's ToU
"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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