February 1, 2007 7:20 PM PST
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Nick Denton, the owner and founder of Gawker Media, acknowledged Friday that the Gawker employee, who goes by the YouTube username Belowtheradar, is the company's "video guy."
At least 50 videos were uploaded by the Gawker employee since October from such shows as ABC's Good Morning America and Inside Edition and CNN's Anderson Cooper 360.
Most of the copyright holders, which range from Viacom-owned Comedy Central to NBC to even Apple, were contacted by CNET News.com on Thursday and most said they would need time to evaluate the YouTube clips and the ads in them before commenting. Two content owners, however, said that they never gave permission for their videos to be used in such a way.
"I can tell you emphatically that this video was used without our authorization," said Audrey Pass, spokeswoman for WNYW Channel 5, the Fox affiliate in New York. A clip from a Fox 5 news report was among those posted by Belowtheradar in December. "We have plans to pursue this matter further."
Amanda Congdon, the former host of Web TV show Rocketboom, said a clip found on YouTube, a two-minute video taken from her site Amandacongdon.com, was used without her permission. During the clip, an advertisement for Valleywag was visible the entire length of the video. Congdon said Thursday she intends to contact Gawker Media to find out what the company's relationship is with Belowtheradar.
"I don't have a problem usually when a fan posts something, but I have a problem when someone is using it to advertise and doesn't contact me," said Congdon, who is now working with ABC's Internet unit.
YouTube has been a popular place for people to post clips of their favorite TV shows ever since the company officially launched in December 2005. Often, these clips are uploaded without the permission of the show's creator, which violates copyright law. Up to now, however, it's unclear whether anybody has tried to attach advertising to the unauthorized clips.
YouTube said in a statement Thursday evening that its user agreement explicitly prohibits posting of copyright material.
"We don't control the content on our site," a company spokesman said. "Our users post the content on YouTube--including videos, comments, and ratings. Our community guidelines and clear messaging on the site make it clear that users must own or have permission from copyright holders to post any videos.
"We take copyright issues very seriously," the spokesman said. "We prohibit users from uploading infringing material and we cooperate with copyright holders to identify and promptly remove infringing content."
Media lawyers say the postings by Belowtheradar could indeed run afoul of copyright laws. In some circumstances similar to this, lawyers have argued that postings such as this are protected under the "fair use" doctrine. Under U.S. copyright law, a copyright owner authorizes others to reproduce the owner's work.
Copyright material can be used without permission under the "fair use" doctrine for purposes of "criticism, comment, news reporting, teaching, scholarship, and research," according to section 107 of the U.S. Copyright Act.
But fair use doesn't apply here, said Russell Frackman, an entertainment attorney and partner at Los Angeles-based law firm Mitchell Silberberg & Knupp. Frackman was skeptical whether an advertiser could argue that they have a right to post material from TV shows under "fair use."
"The material they are using is pure entertainment," Frackman said. "It takes the entire aspect of the use and impinges directly on the market for the copyright holder, which presumably sells commercials."
New York-based Gawker Media operates 14 blogs, including Gawker.com, Fleshbot, Gizmodo and Valleywag. The company is owned by founder Denton, a former reporter for the Financial Times, a business publication based in Great Britain.
Since October 23, of the 60 videos posted by Belowtheradar, 51 feature ads for Gawker or a Gawker Media property and appear to be material obtained from major broadcasters. Nine others either are without advertising or feature content from unidentified sources.
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