March 22, 2007 12:12 PM PDT

Viacom sued over Colbert parody on YouTube

Viacom is misusing U.S. copyright law by forcing YouTube to remove a parody video of The Colbert Report, according to a lawsuit filed against the media conglomerate Thursday. However, Viacom denies the accusation and said it does not object to the video being on YouTube.

The suit, filed by the Electronic Frontier Foundation in federal court in San Francisco, accuses Viacom of filing a baseless copyright complaint and takedown notice on YouTube, and infringing on the free-speech rights of the makers of the video--activist group MoveOn.org Civic Action and Brave New Films.

The tongue-in-cheek clip, "Stop the Falsiness," uses snippets from The Colbert Report, a program on Viacom's Comedy Central, for parody. That approach, the EFF said, is permissible under the "fair use" provisions of the Digital Millennium Copyright Act, just as The Colbert Report uses excerpts from real news shows in its segments.

"If you watch this clip for 10 seconds it is clear that it's a parody and it is fair use," said Corynne McSherry, staff attorney at the EFF, which is working on the case with Stanford University's Center for Internet and Society.

Under the DMCA, service providers like YouTube, which is owned by Google, are immune from copyright suits if they respond quickly to takedown notices filed by content owners.

However, Viacom says that of the 160,000 takedown notices it has sent out, none of them targeted the "Falsiness" video.

"Your complaint is the first information we have received about this clip. We have reviewed our takedown notices, and have found no record of a takedown notice with respect to this clip," Michael Fricklas, general counsel at Viacom, wrote in a letter to the EFF. "We maintain careful records of all of our takedown notices, so any takedown notice most likely did not come from us."

Viacom reviewed the clip on the "Stop the Falsiness" Web site and has no problem with having it viewed on YouTube or anywhere else, Fricklas said.

McSherry of the EFF said YouTube confirmed that Viacom sent the takedown notice on the clip before the lawsuit was filed. "It may be that (Viacom's) records are confused" given the vast number of takedown notices that they have sent, she said. "I am pleased that Viacom recognizes that MoveOn.org and Brave New Films are allowed to do exactly the same thing that Stephen Colbert does every night, which is engage in parody."

McSherry said she could not say whether the lawsuit would be dropped or not. "As far as we are concerned, at this point we still have a lawsuit pending," she said. "(The clip) was still taken down in the first place. Damage was done."

YouTube itself declined to comment directly on whether Viacom had sent the takedown notice.

The suit seeks damages and attorneys' fees, as well as an order allowing the video to be reposted to YouTube. The EFF also has sent a counter notice to YouTube alleging that Viacom's takedown notice was illegal; if YouTube agrees, the video could re-appear on the site within 10 days, McSherry said.

MoveOn.org Civic Action posted the video to YouTube in August and noticed about two weeks ago that it had been removed from the video-sharing site, according to McSherry.

Viacom has been aggressive in getting its content removed from YouTube, sending the site takedown notices involving 100,000 video clips in February and filing a $1 billion copyright lawsuit against Google and YouTube last week.

In another recent DMCA case, the EFF successfully sued a blogger, Michael Crook, who forced Web sites to remove a screenshot showing his face from a TV news show he appeared on. However, unlike the Viacom case where the media company owns the copyright to the video snippets in question, McSherry said, Crook did not own the copyright for the video in which he appeared.

See more CNET content tagged:
Viacom Inc., takedown, YouTube, MoveOn.org, DMCA

6 comments

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Thanks EFF
Protecting one's legal and just copyright is one thing. Quashing
free speech (such as parody) is another.

GO EFF!
Posted by TheBikerWeb.com (25 comments )
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I agree
The EFF does not get nearly enough recognition for all the work it does to protect online freedoms.
Posted by Dachi (797 comments )
Link Flag
Not misuse
I don't consider it misuse of the law when Viacom makes demands (outside of court) when Viacom does not have the right to enforce those demands. Let YouTube consider its own rights and choose to concede or refuse. If YouTube gives up more rights than it needs to, then that's YouTube's fault, not Viacom's.
Posted by MarkBentley (33 comments )
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You Don't Understand DMCA
Viacom told YouTube to take down the clips via a DMCA take down request form, which the have to swear under perjury that they own the clips, they violate their copyright, and they must be removed. Under law, YouTube has to take down the requested content until a counter-notification (citing Section 512 of the DMCA) from the original poster is received.

By sending a DMCA take notice to YouTube for non-copyright violating request, Viacom broke the same law they were trying to enforce.

Check out NFL fumbles DMCA takedown battle from Ars Technica for more information. (<a class="jive-link-external" href="http://arstechnica.com/news.ars/post/20070320-nfl-fumbles-dmca-takedown-battle-could-face-sanctions.html" target="_newWindow">http://arstechnica.com/news.ars/post/20070320-nfl-fumbles-dmca-takedown-battle-could-face-sanctions.html</a>)
Posted by mstrclark (62 comments )
Link Flag
Counter notice (put-up notice) rights
From another series of articles on the NFL takedown against a college professor who posted the copyright notice from the Super Bowl broadcast, it appears that a properly filed counter notice does NOT require that YouTube agree with the notice. They have to take it as a good faith assertion from the poster, have no alternative under the DCMA not to put it back up (unless it independently violates their own Terms and Conditions), and are still protected from liability once the counter notice has been filed.

In addition, if Viacom simply repeats the takedown notice instead of going to court, that is itself a violation of the DCMA, in that it is a false representation by Viacom.

The college professor in the NFL case is also an attorney with the EFF and the founder of the ChillingEffects website.
Posted by internetdog (8 comments )
Reply Link Flag
GO EFF!!!!!!!!!!!!!!!!!!
Thank god for the EFF they have really ment alot to digital rights and freedom
Posted by kyle172 (65 comments )
Reply Link Flag
 

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