Viacom Issues Bogus DMCA Over Fair Use Daily Show Remix... After Promising Not To Do That Any More

from the haven't-we-seen-this-before dept

Wed, Feb 25th 2015 8:04am — Jonathan McIntosh

Editor's note: The following was sent over by Jonathan and New Media Rights, concerning Jonthan's ridiculous situation of being held hostage by Viacom. What strikes me as particularly interesting is that Viacom has been sued about this kind of thing before (involving Colbert Show clips) and resolved that by promising to take fair use into account. Apparently that's gone out the window.

On February 3rd 2015 my remix video entitled "Too Many Dicks on the Daily Show" was removed from YouTube via a bogus takedown from Viacom claiming copyright infringement.

The remix is a transformative work critical of the gender disparities on The Daily Show and constitutes a fair use of copyrighted visual material as provided for in section 107 of the US copyright law.

This is the second time Viacom has abused the DMCA takedown process to prevent this particular fair use video from being seen. It's especially ironic considering each episode of The Daily Show relies on the fair use doctrine in order to satirically comment on mainstream news broadcasts. I am currently appealing this latest takedown with the help of my attorneys from New Media Rights.

Back in August 2013, after nearly 2 years on YouTube, my remix was also removed without warning by Viacom claiming infringement for "visual content" from The Daily Show. I immediately informed my attorneys at New Media Rights who in turn contacted Viacom to inquire about the takedown. Quickly thereafter I received an automated message from YouTube stating that Viacom had rescinded their copyright infringement claim. Viacom provided no other information or explanation but the video was again viewable on YouTube and so I assumed the matter had been resolved. Roughly a year and a half later I find myself dealing with the same exact situation.

As I explained in my original blog post, the video is presented as an episode of The Daily Show with Jon Stewart which is interrupted by a remixed critique of the show's gender imbalance and "boys' locker room" comedy stylings. The remix was created with clips borrowed from over 100 episodes of The Daily Show combined with a portion of the Flight of the Conchords song "Too Many Dicks on the Dance Floor" in order to subvert both sources.

Made in 2011, the video was meant to highlight the lack of women in on-screen or leading creative roles on The Daily Show over its 17-year run. At the time only 3 of the 12 regular correspondents/contributors on The Daily Show were women. Only 2 of the 16 writers were women and the numbers have not improved much in the 4 years since I published the critique (although Jessica Williams is a brilliant addition to the cast).

On both occasions Viacom has abused the DMCA takedown system to remove my video, which has resulted in an unjust strike placed against my YouTube account. On both occasions I've been temporarily locked out of my channel and forced to attend YouTube's copyright school and pass a test on fair use. This is particularly patronizing since just over a year ago YouTube invited me to their space in Los Angeles to give a lecture on transformative storytelling and to specifically highlight the fair use questions that arise when remixing video footage for the purposes of political parody.

I should also note that YouTube currently features another one of my remix videos as an example of fair use video on their official page explaining the fair use doctrine to their user base.

Again, I'm in the process of trying to get my video back online. For now you can watch it over at the Internet Archive.

One last note: New Media Rights has offered me invaluable advice and guidance throughout these battles. They are a small, non-profit, two-lawyer operation on a shoe-string budget fighting to make sure artists like me are heard. So if you can, please consider donating to them here.

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Filed Under: censorship, clips, copyright, daily show, dmca, fair use, takedown, too many dicks
Companies: viacom

28 Comments

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Ninja (profile), 25 Feb 2015 @ 6:29am

I say crowdfund a lawsuit against Viacom and don't settle, take it to the bitter end and make them obliged by law to focus their copyright bullshiting. If you choose that venue I am donating 10 bucks.
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Anonymous Coward, 25 Feb 2015 @ 8:28am

Re:
I will gladly donate to a fund to not-settle and take Copyright abuse to the highest court.
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John Fenderson (profile), 25 Feb 2015 @ 8:44am

Why?
At this point, I have to wonder why real people actually use YouTube to post videos anymore? It seems to me that one of the other services would be better in many, many ways. Let's leave YouTube to the corporations.
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Anonymous Coward, 25 Feb 2015 @ 8:49am

Not surprised in the least
Typical Viacom. They have not and never will change the way they view content ownership. Of course, I haven't seen anything to indicate that Viacom changed their minds about the video. I think it's likely they caught it in an automated sweep.

What is surprising is that YouTube doesn't protect videos that have been flagged, challenged, and then reinstated. Why would they waste time by letting the same company flag it again?

Having said all that, I find this guy a bit unlikable.

Made in 2011, the video was meant to highlight the lack of women in on-screen or leading creative roles on The Daily Show over its 17-year run. At the time only 3 of the 12 regular correspondents/contributors on The Daily Show were women. Only 2 of the 16 writers were women and the numbers have not improved much in the 4 years since I published the critique (although Jessica Williams is a brilliant addition to the cast).

I would ask him how detrimental he believes it is to "only" have 3 correspondents and 2 writers being women. How many should they have? Should they consider replacing Jon Stewart with someone who's comedy style is more suited to delivering gender-neutral humor? Does he have any evidence of discriminatory hiring practices? Should they prioritize hiring women over hiring minorities? Does he have any evidence of a bias towards sexist content on the show? Has he actually asked any women if they find the show distasteful?
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TheResidentSkeptic (profile), 25 Feb 2015 @ 9:01am

Re: Not surprised in the least
There is a simpler question to be asked...

I recall a case many years ago when a company was sued for "discriminatory hiring" as they didn't have ANY women. Their entire defense consisted of "No woman has ever applied for the job".

So - maybe the questions should be "how many women want to work on the Daily Show?" and "How many have applied to do so?"
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Anonymous Coward, 25 Feb 2015 @ 9:01am

and the main reason they and others do this is because of the bribes that were given to Congress ensuring there were no penalties in play when this false action was taken. it's the same with the entertainment industries. the reason it is creating such havoc globally is because it gets away with shelling out as many take downs etc as it feels like and gets no punishment, at all!!
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Chronno S. Trigger (profile), 25 Feb 2015 @ 9:13am

Re: Why?
What other services?
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Anonymous Coward, 25 Feb 2015 @ 9:18am

Re: Why?
Out of curiosity, what services are you talking about more specifically.

Dailymotion.com is fine, but apart from that it seems difficult to find a place with both content and users without unwanted restrictions.
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Anonymous Coward, 25 Feb 2015 @ 9:25am

Re: Not surprised in the least
Well, if this is the same Jonathan McIntosh that writes for Feminist Frequency, I wouldn't be surprised to hear he believes something is sexist, as that McIntosh believes everything is sexist.
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Anonymous Coward, 25 Feb 2015 @ 9:25am

Re: Why?
It seems the reason why Youtube is so immensely popular is the same reason why Ebay, Facebook, Linkedin, Twitter, etc. ... are so immensely popular, while similar (and often technically superior) sites are barely ever visited. Everyone goes there because everyone goes there. No other reason.
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Anonymous Coward, 25 Feb 2015 @ 9:27am

Re: Re: Not surprised in the least
Which is exactly why I'd like to hear is responses to those questions.
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Anonymous Coward, 25 Feb 2015 @ 9:31am

Re: Re: Not surprised in the least
Well they already have several women on staff, so clearly women do apply for jobs at TDS. I'm simply curious as to whether there is actually discrimination going on or if he is simply complaining for the sake of complaining. Lots of online activists fall into the later category.
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Anonymous Coward, 25 Feb 2015 @ 9:56am

I found the video amusing but gender disparity will always exist so long as there's more than one sex. One could argue that gender disparity exists on women's talk shows but I doubt anyone will argue with that...
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Anonymous Coward, 25 Feb 2015 @ 10:06am

Maybe it's Viacom that needs to be "forced to attend YouTube's copyright school and pass a test on fair use" before it can send another takedown notice.
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CK20XX (profile), 25 Feb 2015 @ 10:59am

Re: Why?
Trying to find alternatives to YouTube is like trying to find alternatives to Comcast, unfortunately. We're all in the same prison here.
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beckerist, 25 Feb 2015 @ 11:17am

Re:
I'll pledge at least $100. This should absolutely happen
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David, 25 Feb 2015 @ 11:58am

Re:
I wouldn't be surprised if there are women's talk shows not passing the Bechdel test.
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Kevin, 25 Feb 2015 @ 12:31pm

Just curious
Why don't you just host the video on TechDirt's servers instead of YouTube's? Problem solved.
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Vincent Clement (profile), 25 Feb 2015 @ 1:18pm

Real Reason For Takedown...
...it's not funny.
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gant, 25 Feb 2015 @ 1:24pm

is viacom forced to attend youtube's fair use school?
But I guess it doesn't make any sense to suddenly invite those who really need it.
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That One Guy (profile), 25 Feb 2015 @ 3:54pm

'How about NO'?
This is particularly patronizing since just over a year ago YouTube invited me to their space in Los Angeles to give a lecture on transformative storytelling and to specifically highlight the fair use questions that arise when remixing video footage for the purposes of political parody.

I really hope he told them to get bent, and then proceeded to point to the crap he's had to deal with over this video as the reason for his refusal.

'You want me to talk about fair use? Okay, how about I start by pointing out how utterly flawed and easy to abuse your system is regarding it? And how you make those accused of violating copyright take a class on fair use, but don't do the same for those that send claims that completely ignore it? Does that sound good to you?'
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Anonymous Coward, 25 Feb 2015 @ 4:39pm

Corporate Nitpicking...
Youtube 'The Best of George Carlin'...I rest my case.
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Anonymous Coward, 25 Feb 2015 @ 4:51pm

Re:
Well, you do need a permit to protest (which of course is unconstitutional) so why don't we enact an application process for a DMCA permit to take down digital content?

I mean clearly they're protesting against its existence, why should they or anyone have the freedom to smite the freedom of expression without due process?
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Anonymous Coward, 25 Feb 2015 @ 11:42pm

Re: Not surprised in the least
Part of the point of videos like these is less to accuse a specific show of being discriminatory in its hiring practices and more to highlight a cultural phenomenon seen everywhere. It's a trend seen not just on the daily show.

It shouldn't be normalized for all television shows to be produced primarily by men to the point that it's actually almost weird and worth pointing out if the gender balance were flipped.

It's good for the gender disparity to be pointed out so that people think about who is creating their media.
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PaulT (profile), 25 Feb 2015 @ 11:51pm

Re: Why?
"At this point, I have to wonder why real people actually use YouTube to post videos anymore"

Name recognition and familiarity, a much larger potential audience, a lot of devices have YouTube built in but not the other services (e.g. my Blu Ray player has a YouTube button on the remote), integration with other services, etc.
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PaulT (profile), 26 Feb 2015 @ 12:05am

Re:
We *are* talking about the company that included videos it directly authorised YouTube to host in the list of "infringing" videos during its lawsuit against YouTube. They need a common sense / "how to communicate between your own divisions" class before they graduate to fair use lessons.
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Anonymous Coward, 27 Feb 2015 @ 7:42am

YouTube sucks.
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Anonymous Coward, 19 Jun 2015 @ 1:22pm

Re: Re: Not surprised in the least
We really need to look at ourselves when we think there should be the same number of men and women in the same job.

I have always thought the best person for the job is the right way to do it, but we have weenies that want more women or men or blacks or asians. Enough is enough, time for it to be the best person for the job, end of story.
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