The Viacom DMCA Dragnet

Viacom issued 100,000 DMCA takedown notices to Youtube during February 2007. That's right, 100,000. To be fair to Viacom, they do have a massive problem of copyright infringement on Youtube. But you would think that the folks at Viacom would look carefully at each video that it demanded be taken down before they sent out their notices. After all, according to 512(3)(A)(vi) of the DMCA, every complaint must contain:

A statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.

So of course, the good folks at Viacom, out of a desire to avoid perjury and out of respect for the rights of Youtube contributors made DAMN sure that they weren't sending out notices to take down videos they didn't own the copyright to.

Well, according to this letter by Viacom Lawyer Michael Fricklas, Viacom did indeed try to include only videos that contained Viacom's copyrighted material, and they also did try to honor Fair Use. According to Fricklas, every one of the videos that Viacom demanded to be taken down was reviewed to make sure that they weren't stepping on anyone's right to Fair Use.

Fricklas' claim that every one of the videos was reviewed with the Fair Use in mind leaves me scratching my head in wonder. Despite Viacom's efforts not to send out false DMCAs, they ended up demanding that some videos be removed that contained ABSOLUTELY NO VIACOM MATERIAL WHATSOEVER. One wonders, for example how Viacom could have POSSIBLY been able to mistake this very amateurish video from a rib joint as one of their copyrighted videos.

 

 

Or how could they have mistaken this 34-second video demonstrating Irrlicht v1.0 software as one of their own?

 

 

These were not the only videos deleted that shouldn't have been deleted. In all, Viacom admitted to making "under 60 errors". Now, 60 errors out of 100,000 doesn't seem like a lot (unless it is your video.) But I suspect that this figure represented videos with ABSOLUTELY NO Viacom material in them at all and that it doesn't include those videos which made Fair Use of Viacom material. If you included those videos that used Viacom material for parody, news reporting, or commentary, I suspect the number would have been much higher. I base this conclusion on the fact that Viacom's dragnet removed 13 videos from one person alone who made Fair Use of Viacom material for political commentary. If one person alone lost 13 Fair Use videos, then I suspect the number of videos wrongfully removed was much higher than 60.

Cory Doctorow of boingboing.net took both Viacom and Youtube to task over this DMCA abuse , calling Viacom's massive takedown campaign "incredibly negligent and evil." But what he wrote about Youtube is priceless. If there was any justice in the world, the following would be painted on a 50-foot high sign and planted outside of Youtube headquarters:

But Google's lawyers should have known better, too. The DMCA says that if a web-hoster ignores a takedown request, it's liable for copyright damages if the material in question is found to be infringing. YouTube can't afford to just let any lunatic -- including the savage pricks at Viacom -- indiscriminately censor the content it hosts. That's not fair to its customers. (Emphasis added)

HAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHA!!!!

Doctorow obviously hasn't met Harry the Youtube Lawyerbot! Nor is he familiar with the redskull situation. Redskull was a Youtube user who has committed practically every TOS violation and breech of ethics in the book, including plagiarism, dropping docs on others, filing false DMCAs and threatening others in the Youtube community with rape or murder. I made quite a few videos exposing his activities, and redskull retaliated by having three of my videos removed and my account deleted. Youtube did eventually suspend him, but that hasn't stopped them from honoring his false DMCAs. The last DMCA he filed against me--the DMCA that got me suspended--was a video which used ABSOLUTELY NONE of his material. In fact, it was a video by Firefly515 in which Firefly BEGGED others to repost his video!!! Fortunately other copies of the video were posted at Firefly's request, so you can see for yourself the video that redskull DMCAd.

 

 

Doctorow continued with some sage advice for Youtube:

It would cost a lot in lawyer-hours to investigate takedown requests and pick out the ones worth paying attention to, but that's part of the cost of doing business as YouTube. It costs a lot to provide the bandwidth for the files, but YouTube/Google wouldn't dream of skimping on connectivity. Lawyer-letters are just another load that GooTube needs to provision for.

 

But I digress. Back to Viacom. Whether Viacom took great pains to avoid taking down videos that shouldn't have been removed or not, their massive dragnet ended up being a PR disaster. There was widespread criticism of their clumsy tactics and Viacom found themselves on the wrong end of a lawsuit from the Electronic Frontier Foundation. On March 22, 2007 the EFF sued Viacom for their takedown of this parody of Stephen Colbert.

 

 

Viacom quickly did an about face about a month after the EFF filed a lawsuit against them. On April 23, 2007, the EFF issued a press release announcing that they were dismissing the lawsuit because Viacom was taking significant steps to honor and protect the Fair Use of their materials. Specifically, Viacom publicly stated that it "does not challenge use of Viacom materials that are 'creative, newsworthy or transformative' and are 'a limited excerpt for non commercial purposes.'" Furthermore, Viacom agreed to manually review every video that potentially violated their copyright before sending out a takedown notice and they agreed to train their reviewers to be sensitive to Fair Use. They also agreed to set up a "dolphin hotline" which people could contact if they had their videos erroneously removed. Complaints to the hotline would be quickly investigated with the intent of getting erroneously removed videos back up within one business day.

So maybe the folks at Viacom weren't as evil as Doctorow said they were. Or maybe they were just afraid of getting their collective ass kicked in court by the EFF. Whatever the reason for their change in heart, this was a big win for those who value the right to speak freely.

 

Related Article:

See how LiberalViewer fought back after he was hit by the one-two punch of Viacom's sloppiness and Youtube's incompetence.

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