February 15, 2007 4:00 AM PST

EFF takes Viacom to task over YouTube takedown

A watchdog group is encouraging those wrongly accused of posting pirated Viacom material on YouTube to stand up to the giant conglomerate--even if it means a court fight.

Two weeks ago, when Viacom demanded that YouTube remove 100,000 videos featuring unauthorized clips of its films or TV shows, some innocent users got caught up in the sweep, said the Electronic Frontier Foundation (EFF), an advocate for the rights of Internet users. In a video posted to YouTube last week, EFF said it wanted to hear from anyone who may have been unfairly blamed.

Two such examples include the removal of a homemade movie of a group of friends eating ribs and a trailer for a documentary about a gay professional wrestler, both of which contained no Viacom copyrighted material, EFF said.

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EFF compared Viacom's actions to fishermen who cast a wide net and mistakenly trap a porpoise. The group suggested in a note on its Web site that some of those accused of copyright violations may need legal help.

"It may make more sense to go to court to assert your rights," EFF attorney Fred von Lohmann wrote on the organization's site.

The controversy, which followed the takedown of an unprecedented number of YouTube videos, is the latest example of how rules for digital media in an emerging user-generated culture are often made up on the fly. It also illustrates the many pitfalls confronting media companies as they attempt to maintain control of their digital content.

"The question we need to ask is do we have the right mechanism to balance the needs of corporate content creators, intermediaries like Google and YouTube, and users," said John Palfrey, professor of Internet law at Harvard Law School.

Defamed by takedown?
Viacom, which said only 60 or 70 videos were mistakenly deemed copyright violations, isn't the only organization tripping over its copyright policies. YouTube apparently threw salt in the wounds of those wrongly accused of copyright violation by leaving misleading messages on the Web pages where the pulled-down videos once appeared.

"This video has been removed at the request of copyright owner Viacom International because its content was used without permission," read a copy of one of the messages obtained by CNET News.com. YouTube in recent days has changed the message to read that a video was removed because of a copyright "claim" by Viacom.

No one is likely to be surprised by Internet and traditional media companies stumbling as they take their first steps into the nascent online video segment. But the learning process may be hardest on their customers and users.

"That note said to anyone looking for my trailer that I violated someone's copyright. And that isn't true. That's where they defamed me."
--Victor Rook, filmmaker mistakenly accused of copyright violation

Victor Rook, an independent filmmaker for 25 years whose promo for the gay wrestler documentary was mistakenly removed, said he worries whether his reputation was damaged by the note posted by the Google-owned YouTube.

"That note said to anyone looking for my trailer that I violated someone's copyright," Rook said. "And that isn't true. That's where they defamed me."

A YouTube representative declined to comment for this story. Michael Fricklas, Viacom's executive vice president and general counsel, said the company had nothing to do with choosing the wording of the messages on YouTube. He said that Viacom regrets misidentifying any of the videos and noted that the company is moving quickly to correct errors.

It's important to note, Fricklas said, that the company did not go after everyone who threw in a couple of seconds from The Daily Show or The Colbert Report to create a "mashup."

"We took a very conservative and limited view of fair use," Fricklas said. "Legally we could have taken down many more clips, but we only wanted to move on clips that were clearly infringing. Nearly all of the clips removed were clips ripped straight from our broadcast."

Fricklas was referring to instances when YouTube users posted videos featuring entire skits or big chunks from Viacom-owned TV shows. U.S. copyright law allows people to use copyrighted material for specific reasons, such as creating art, criticism or study. But the law also says the use must not limit the copyright owner's ability to sell the material.

EFF spokeswoman Rebecca Jeschke says lawyers in her organization want to make sure that Viacom didn't go after people with legitimate fair-use claims.

"Clearly, YouTube can take down whatever clips it wants," Jeschke said. But if Viacom uses the (Digital Millennium Copyright Act) to issue take-down notices, then that's a legal proceeding. If they are wrong, then there are ways you can answer that."

Viacom executives have pointed out that the process of removing clips--or preventing them from going up in the first place--would be far easier if YouTube had a filtering technology. The San Bruno, Calif.-based company promised to roll out such a technology by the end of 2006 but it has yet to materialize.

That hasn't stopped other media companies from partnering with YouTube, which has struck content-licensing deals with CBS, Warner Bros. Music Group and Sony BMG. Some analysts believe that eventually YouTube and Viacom will also come to an agreement.

Meanwhile, Rook must wait until someone at YouTube or Viacom sorts out his situation. Nearly two weeks have gone by since he sent a certified letter to YouTube explaining his situation and offering proof his video hasn't violated copyright law.

"It's kind of a waiting game now," Rook said. "Each day that my video is down is another day that some network doesn't know about my work."

See more CNET content tagged:
Viacom Inc., takedown, copyright violation, YouTube, media company

19 comments

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How about we boycott Viacom?
The heavy-handed, narrow-minded approach employed by Viacom hinges on the incredibly small-minded assumption that every copy posted online of clips, trailers and excerpts hurts its sales.

The snippets of entertainment we use to create our world, both on and offline are part of our personal identity and the shared values we have with those around us.

There are real pirates and issues of real piracy which will not be affected by all this wasted time and effort so how about growing up a little and concentrating on those who actually infringe on a mass scale and crediting the people who actually give you the money you use with some judgement?

Suppose we all decide, OK, let's boycott all Viacom media products, what would happen then? My guess is they would spend even more money begging us to make use of them on YouTube and on our Blogs.

I think it's time Media company execs woke up and smelt the coffee. The people they are harassing are actually their dedicated, <A href="http://www.amerlandent.com/index.php?option=com_content&task=view&id=168&Itemid=88888974/">unpaid marketers.</A>
Posted by David Amerland (6 comments )
Reply Link Flag
It's not because people aren't watching their shows
It's because they want a piece of the YouTube cake and they missed
the boat. They only way they can compete against YouTube is
putting their videos exclusively on their Web sites. I'm already
boycotting Viacom because I'm not interested in anything that
plays on MTV. BTW I started watching Colbert on TV because of
YouTube.
Posted by PostNoComments (116 comments )
Link Flag
Excellent Idea!!
Absolutely. If Viacom wants to play hard ball, lets kick 'em where it hurt's. Tell viacom to bugger off. Their shows will quickly follow the market and go to media companies who already have deals with youtube. WE RULE!!!
Posted by garrywdm (44 comments )
Link Flag
pulling U2 content
one video was posted on my blog</a> by a user (old U2) was already pulled because it originally aired on MTV. Old videos (from when MTV showed videos) can jog the memory, according to neuropsychs. Then it got reposted and is still running, go figure <a class="jive-link-external" href="http://blog.cognitivelabs.com/2007/02/streets-have-no-name.html" target="_newWindow">http://blog.cognitivelabs.com/2007/02/streets-have-no-name.html</a>
Posted by azareus (31 comments )
Reply Link Flag
The problem is over zealous content owners
Who search for a term (like the name of one of their properties) and assume all the result are infringing without bothering to confirm it. The DMCA is also to blame, because it makes it all too easy to do. Not to mention it's easy to abuse as we've recently found with the Michael Crook incident. This same shoot first ask question later tactic has landed the RIAA in hot water then threatened the owner of a website because he had a file called "usher.mp3".

There needs to be serious repercussions for these over reaching take down notices. Especially in cases where it's clear that it was result of laziness on the part the person or company filing the take down notice and on this scale. I'd like to see Viacom and others who do this forced to forfeit the copyright they wrongly claimed was infringed or otherwise forced to pay actual damages (like lost ad revenue) and substantial statutory damages.

The DMCA clearly lays out what the obligations are of service providers are. For the mostly part Viacom is responsible for policing their copyrights not Youtube or Google.
Posted by unknown unknown (1951 comments )
Reply Link Flag
DMCA is one reason
.. .why I don't let "digital rights" go along with print publishing rights willy-nilly.

The instant matter intended for print hits the internet, the value to the author becomes zero.
Posted by Too Old For IT (351 comments )
Link Flag
still clueless
The large network operators are still clueless to new media. They'll never understand that they aren't losing viewership merely because their content is ALSO available on the web. It's analagous to the reports that have been issued time and time again regarding the record industry not losing any money over mp3s. People still go to the record store. People still watch tv. Viewer and listener habits remain unaltered by new media. Computer time for 99% of the word is exactly that.. computer time. If anything, Viacom should be happy that people are still watching their shows, and even happier that they're doing it at work, when they should be trying to be productive (See: Pirated copy of office space.)

www.thetopic.net
Posted by zoetherot (10 comments )
Reply Link Flag
there IS NO "YouTube" ...
... let's get it straight. Google owns the company, so it was Google's top brass to blame - full stop. Google top brass made this decision so - in reality - the complainants have NO COMPLAINT whatsoever with Viacom. Google top brass could have chosen to more carefully screen which vid's were to be taken down AND they could have chosen to more carefully write the offensive copy which headed those pages. Google top brass chose not to take these obviously necessary actions to protect the rights and better treat their YouTube users.

Is Viacom the bad guy? Yes, of course - they're short-sighted fools to have taken this tack with Google.

But is Google an even worse bad guy in this affair because of the methods in which they chose to abuse their users? Without question - we'd like to think that Google knows just a little bit about web content and protecting user rights.
Posted by i_made_this (302 comments )
Reply Link Flag
Of course it doesn't help that
prompt response is required to avoid liability for Youtube when a notice is received. With 100,000 from just one company plus all the others that leaves little time for any sort of meaningful review. If responsibility for doing the due diligence that Viacom should have done is to be place on Google, then one has to assumes Google is familiar with all content copyright Viacom etc so they can identify it. Personally, I don't think that's a reasonable assumption or expectation. Content companies have for the most part proven themselves very litigious and would no doubt jump at the chance to sue and shutdown Youtube, they started to do it before Youtube offered to make a deal. I think there is a lot of complaints to be made against Viacom.
Posted by unknown unknown (1951 comments )
Link Flag
I prefer the term: GooTube
That's what I'd call it now that Google has purchased YouTube. It's more like "GooTube" now. :)
Posted by BrowserMaven (1 comment )
Link Flag
YouTube killed the MTV star
25 years ago, if you had an emerging band called something like
"A Flock of Seagulls" you promoted it making a video and
putting it in something called the MTV. In the 21st Century, let's
say you have a band called something like "O.K. Go" you want to
try the MTV, right? Wrong. MTV is now owned by a bunch of
suits called Viacom who spend a lot of money in market research
figuring out what young people are doing these days, yet they're
still clueless.

Enter YouTube. It picks up what MTV abandoned years ago
because market research said teens rather watch shows about
bratty teens than video clips. Now Viacom's envy because they're
not as cool as YouTube makes them retaliate. With something
very uncool, like telling teens to take Viacom clips from
YouTube. Because they think teens want to see their clips in a
more corporate controlled environment, like the Viacom Web
sites.

And that my friends, is the ultimate in uncoolness. And the last
nail in the coffin for MTV. R.I.P.
Posted by PostNoComments (116 comments )
Reply Link Flag
Pop culture killed the MTV star
It's a natural progression. MTV killed off all of the ugly pop music stars. Now the Internet (including YouTube) are killing off all of the pop music stars who aren't willing to trainwreck their lives to get attention. Nobody gives a crap about music any more.
Posted by fcekuahd (244 comments )
Link Flag
copyrights
All and any news from anywhere it comes from to include photos, films,and everything about the information to inform the public by any means of any comunications should NOT be allowed to be copyrighted. News given to the public is for the public and belongs to the public to do as they please with it. This should be covered under the freedom of information act and the freedom of the press act. End of story.
Posted by tracernet (1 comment )
Reply Link Flag
The best stuff on YouTube
The best stuff on YouTube is the content users create themselves. It is far more interesting that watching clips from Viacom shows. The copyright problems will take some time to get sorted out but YouTube will be better for it in the end. Oh, and we probably won't be spending as much time watching Viacom.
Posted by grangerfx (41 comments )
Reply Link Flag
I was banned by Viacom "takedown" T-Shirt!
Say no to Viacom takedowns! All proceeds go to support the non-profit Center for the New Public Media, a project of the Fund for Independent Media.
Posted by Center for the New Public (2 comments )
Reply Link Flag
I was banned by Viacom "takedown" T-Shirt!
Say no to Viacom takedowns! All proceeds go to support the non-profit Center for the New Public Media, a project of the Fund for Independent Media.
Posted by Center for the New Public (2 comments )
Reply Link Flag
T-SHIRT?
HOW DO I GET ONE OF THE T-SHIRTS?
Posted by mickeygk (1 comment )
Link Flag
The sad thing is that America is not a democracy or republic. It is a country totally controlled by the big corporations. Abuses of the Constitution and the DMCA (which itself is an abuse of the copyright law's intent!) will continue and get worse over time, just as they have ever since the first alteration of the copyright laws.

Yes, there are some provisions of the DMCA that benefit end-users and authors (for example, I own copyright automatically to any email I write) but too many of the provisions are merely for the further enrichment of corporations that were in a panic over their oldest content about to go into the public domain. (Yes, I'm talking Disney here... and "Steamboat Willie"! Had they given any regard to the law, they would have allowed the content to go into the public domain.)

As an author myself, I probably will state unconditionally that my works will revert to the public domain 75 years after my death. That is reasonable. 125 years afterward is not, especially given the fact the DMCA was written by and for the corporations' benefit! It is coincidental that some of the provisions benefit the average Joe, too.
Posted by rdanner3 (1 comment )
Reply Link Flag
 

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