For YouTube videos, a 'fair use' boost

Victor Rook, an indy filmmaker who was once wrongly accused by Viacom of copyright violations, is happy a judge has reminded media companies to think twice before calling someone a pirate.

In February 2007, Viacom demanded that YouTube remove Rook's documentary about a professional wrestler, accusing him of using some of the company's copyright material. The conglomerate was mistaken. None of the video or music Rook included in his film belonged to Viacom. Executives at the company apologized but the filmmaker still had to wait three weeks before the clip was reposted to YouTube, which he says hurt his efforts to market the film.

The entire episode would have never occurred had "Viacom ever looked at the video," Rook claims.

"YouTube and Google have adopted a policy that forces copyright owners like Viacom... to shoulder the entire burden of monitoring for copyright infringement."

-- A letter to YouTube user from Viacom

Copyright owners, such as NBC Universal, Warner Bros., and Viacom, were put on notice Wednesday when U.S. District Judge Jeremy Fogel ruled that they must not order video be removed from Web sites indiscriminately. Before taking action against a clip, copyright owners, must form a "good-faith belief " that a video is infringing, according to Corynne McSherry, an attorney with the Electronic Frontier Foundation.

EFF represents the Pennsylvania woman who sued Universal Music Group for demanding that YouTube remove her clip, which featured her infant son dancing to 30 seconds of the Prince song "Let's Go Crazy." EFF has always argued that the video was a "textbook" example of fair use and Universal Music should have recognized that.

The music label, the largest of the country's four top recording companies, has indeed acknowledged that the clip doesn't violate their copyright and the clip has been reposted to YouTube. But Universal Music also argued before Fogel that it's not up to copyright owners to determine fair use.

Fogel disagreed. In his 10-page decision, he reminds Universal Music that the Digital Millennium Copyright Act already requires copyright owners to make a determination about fair use prior to sending take-down notices. "A consideration of the applicability of the fair use doctrine simply is part of that initial review," Fogel wrote.

But for copyright owners, Fogel's decision may further complicate an already arduous process of tracking and removing pirated clips.

A Viacom spokesman said Thursday that the company has sent 350,000 take-down notices to YouTube. Each of the offending videos is first reviewed by Viacom staff before the notices are sent. The media power has acknowledged making mistakes but less than 1 percent of the time.

Perhaps Viacom's position on handling take-down notices was best explained in the company's letter to Rook.

Mark Morril, Viacom's deputy general counsel, wrote to Rook: "Having reviewed the video, we acknowledge that its inclusion in the take-down notice was an error and the error however was completely unintentional. We sincerely regret that this error affected your video. We note that YouTube and Google have adopted a policy that forces copyright owners like Viacom or yourself to shoulder the entire burden of monitoring for copyright infringement on the YouTube site.

"Viacom has no alternative accept to repeatedly search the entire YouTube library," the letter continued, "and send take-down notices...This is a massive effort. We have manually reviewed over 1.7 million clips on YouTube and have identified more than 187,000 pirated clips of our copyrighted content. In an effort of this scale, some inadvertent error is inevitable."

Rook has little sympathy for the big media companies. He's skeptical about their review process and whether Viacom employees eyeball all the videos. He said that had anyone actually seen his video, there could have been no way they would have accused him of copyright infringement. Rook also said that a year before Viacom sent the take-down notice, one of Viacom's companies, MTV, had requested a viewing copy of his documentary.

"If that doesn't prove that Viacom knew my film wasn't their material I don't know what can," Rook said.

Mark Litvack, an entertainment lawyer with the Los Angeles law firm of Reed Smith, says that while it's good for the judge to remind media companies to take a hard look at material before making accusations, he doesn't think the lawsuit brought by the Pennsylvania woman is necessary.

"The DMCA absolutely anticipated this very scenario," Litvack said. "Universal said she infringed on her copyright and sent a take-down notice. She then has an opportunity to appeal to YouTube (counter-notification remedy), which is what she sought and the video was restored."

But McSherry of EFF argues that the counter-notification remedy doesn't protect people from unfounded claims and puts the onus on them to prove their innocence. She remembers that before the DMCA, a media company that wanted someone to remove allegedly infringing material would first have to convince a judge and then obtain a temporary restraining order.

"The DMCA streamlined the process but the law also tried to balance it," she said. What she is referring to is the DMCA's requirement that companies first form a good-faith belief that material is infringing before trying to remove videos.

Fogel agreed and the wrote: "The unnecessary removal of non-infringing material causes significant injury to the public where time-sensitive or controversial subjects are involved and the counter-notification remedy does not sufficiently address these harms."

[Michichael]

Now we just need to establish some repercussions of making mistakes and we'll get somewhere. On the little guy a repercussion of a mistake can be a relatively large amount of money.

[MadLyb]

Absolute fiction.

Just do the math. They say they have reviewed 1.7 million videos. If we assume the average video is 2 mins long, then it would take 6 people working in 8 hour shifts around the clock 365 days a year, 3 years to properly review the videos.

Obviously, for some, just a few seconds will reveal the infringement, but ones like Rook's you would have to review the entire video carefully and have a pretty strong know,edge of the company's library to identify infringment.

[RooIG]

Do the math based on figures that you pulled out of your butt? No thanks - too stinky.

What on earth makes you think that Viacom has only 6 people working on this for 8 hours a day? It's probably many multiples of that.

Not everyone's a start-up. Some companies have the ability to throw lots of staff at projects like this.

[CyR00k]

Read the letter from Viacom to the mother of the dancing infant. In their mind the "evidence" that they had was a good faith belief that the video was infringing. The term good faith belief is far too vague, the media companies obviously believe that whatever they claim to be infringement is actually infringement. It just doesn't happen fit with reality.

There is nothing to compel Viacom, et al, to bother with actually checking to see if something truly is copyright infringement.

I also have a problem with the statements that Viacom made, in the letter they claimed that it was a mistake made by their staff. However, in the court proceedings they said that it wasn't their job to determine if something is covered under fair use. So which one of these is true?

[Lerianis]

You have a point. A 'good faith belief' is way too lenient with Viacom and others. It should be an absolute belief, after review of the entire thing in question, that something is infringing on copyright.

[CyR00k]

Read the letter from Viacom to the mother of the dancing infant. In their mind the "evidence" that they had was a good faith belief that the video was infringing. The term good faith belief is far too vague, the media companies obviously believe that whatever they claim to be infringement is actually infringement. It just doesn't happen fit with reality.

There is nothing to compel Viacom, et al, to bother with actually checking to see if something truly is copyright infringement.

I also have a problem with the statements that Viacom made, in the letter they claimed that it was a mistake made by their staff. However, in the court proceedings they said that it wasn't their job to determine if something is covered under fair use. So which one of these is true?

[perfgeek]

Even beyond looking at the numbers, unless there was a transcription and proofreading error at CNET... which in and of itself would be mildly pathetic...

'"Viacom has no alternative accept to repeatedly search the entire YouTube library," the letter continued.'

If Viacom and their lawyers cannot be bothered to proofread their own correspondence...

[Vampyre82nd]

Here is the issue, the recording companies are stuck in an old mind set and business model. They want to still be able to absolutely control how their music/video is used, listened to or played. You see, in the olden days the companies told the radio stations what songs to play and when, they controlled what went on the record/tape/8 track, how they were sold and they controlled the artist from sun up to sun down.

Sorry old dudes. That time has passed and until you get your head around that fact, your just going to be beating it to a bloody pulp on the wall of yesteryear.

In this newfangled day where any one with a computer is producer/recording artist/distributor and a disk is released in the store after it was leaked to web months ago (by your own people of course), already made the rounds of the PVP, and is on every kids ipod; you can not be complaining that your company is going under because of it. Pull your head out of the dark hole and come up with a new way of running the company. I mean we all saw how well the law suits worked for your PR when you started suing 80 year olds for down loading Puff Daddy (like any of them had a clue who that was anyway) off of the original Napster.

I mean here is an idea, why not bow down and kiss Steve Jobs dirty sneakers and beg him to allow you to post the albums to itunes and the other on line music stores (really are there any other ones). It would actually save you some money. You would be able to close down all the company owned music stores saving you millions, you would help the environment by not producing all the plastic that just ends up in the land fills after the disk is loaded on to the ipods, again saving millions in production fees, and lastly you would not have to pay all those BMW driving layers to go to court to sue grandma.