How I fought Viacom, and won
March 19th, 2010The Viacom vs. Google court battle is getting downright nasty. Viacom has dug up a bunch of e-mails and instant messages they claim show YouTube’s founders were purposely leaving copyrighted material online during YouTube’s early days — damning evidence against Google.
But more interesting are Google’s claims that many of those copyright-infringing videos came from Viacom itself — some of them uploaded to YouTube by Viacom employees, who were directed to put them online from places like Kinko’s, where they couldn’t be traced back to Viacom.
Already, Viacom has backed down from some of its claims, based solely on evidence that it did indeed upload its own videos to YouTube (hence, Viacom as copyright holder could not infringe on its own copyright). Now, this new accusation throws into doubt the rest of the alleged infringing works. How can Viacom prove which videos actually broke the law?
The issue boils down to this: Early on, and up to today, Viacom sees online video as a threat to its business model. But execs probably wanted to take advantage of the medium from the very beginning. By uploading videos, Viacom got two things: attention for the shows and content it was promoting and grounds for a lawsuit down the road. It got both.
Antics like this don’t surprise me at all. They just point to a crazy, disheveled slash-and-burn mentality, in which in Viacom’s collective mind it can do no wrong. It’s a mentality in which the company can willingly and unabashedly twist the law to its own advantage. And, if my personal experience is any indicator, Viacom is very likely succeeding more than anyone at this point can guess.
Nearly four years ago now I was producing a series of local spoof news videos for an online project I was getting off the ground. In one video, our crew took aim at Tom Cruise’s fight against South Park (the infamous Scientology episode). In editing the video, we used approximately 5 seconds of video from that episode, to illustrate the Cruise parody. We used no audio whatsoever.
Shortly after the video hit YouTube, it was unavailable, with a message that said it had been “removed for violating copyright.”
I was enraged. There was no proof the video violated copyright. In fact, it was a clear case of fair use. YouTube followed the letter of the law that is the Digital Millennium Copyright Act — once a complaint is received, the video is removed. I disagreed with the decision, but understood why it was removed. I first fought YouTube for labeling me a copyright infringer. Though the DMCA forces YouTube to removed the content, it does not mean a conviction has been won. Eventually, the note on the video said it had been “removed due to a copyright claim by Comedy Central/Viacom.”
My next step was to call the Electronic Frontier Foundation.
With a little help, I filed a counter claim, they failed to respond, and within days the video was returned to YouTube. As a lawyer at EFF told me, the video was clearly fair use.
So why was it removed?
Viacom’s policy was clearly to take down anything it didn’t like, banking on the fact that most users wouldn’t fight back. Since Viacom doesn’t actually need proof to get a video removed, it could, for all intents and purposes, remove any video it didn’t like — even if it in fact didn’t contain a single bit of infringing content.
Here’s the video, just in case you’re interested. It’s still on YouTube:
The question here isn’t just about user-generated content. It’s about our rights, and the dishonest tactics the movie, television and music industries have been employing to stifle innovation while padding their own pockets.
It’s about time this is all coming to light.