Jim Moore has received a cease and desist letter from Viacom for a home video that he shot. (I love Jim, but the video’s pretty bad. Highly unlikely to be affecting any market that Viacom cares about, among other things.) The DMCA’s Section 512 has a provision that allows for counter-notification for people, like Jim, who believe that their works that do not infringe copyright have been taken down without cause. Of course, there might be *something* in a home video that is infringing someone else’s rights; perhaps; but no court is making this decision. It’s one company (Viacom) writing to another company (Google/YouTube) and poof — the video is gone, off the web. No judge, no jury. I have to say that I don’t blame YouTube for complying quickly with the demand, as the law makes them more or less blameless if they do so, even if that policy hurts their users.
The operative question related to this 100,000 c&d day: How many Jim Moores are out there?
And take a look at the page where the video used to be. The take-down notice results in language that reads: “This video has been removed at the request of copyright owner Viacom International Inc. because its content was used without permission.” Really? Watch the video for yourself. It sure looks like that assertion is untrue.
Viacom should recall what happened to Diebold when they over-reached on copyright. The DMCA can also provide for damages back to the legitimate copyright holder when someone’s cease-and-desist letter falsely accuses them. The relevant language reads:
“(f) Misrepresentations.— Any person who knowingly materially misrepresents under this section—
(1) that material or activity is infringing, or
(2) that material or activity was removed or disabled by mistake or misidentification,
shall be liable for any damages, including costs and attorneys’ fees, incurred by the alleged infringer, by any copyright owner or copyright owner’s authorized licensee, or by a service provider, who is injured by such misrepresentation, as the result of the service provider relying upon such misrepresentation in removing or disabling access to the material or activity claimed to be infringing, or in replacing the removed material or ceasing to disable access to it.”
Stipulate that Jim Moore holds all rights in his video, and Viacom none. And stipulate further that Jim Moore is far from alone. One presumes that Viacom’s argument is that they did not issue these misrepresentative notices “knowingly.” I wonder how many home videos have to have been caught up — and taken down — in this sweep before one could say that it was “knowing” on the part of Viacom? Combine that with the mash-ups that may include some of Viacom’s material, but where a fair use analysis will vindicate the alleged infringer. Could a human being have looked at each of these 100,000 videos? Might a court say: “You ought to have known that if you crank these notices out automatically and not checking each one, you must know there’s some non-infringing material in there”?
John Palfrey 
Why do we think Viacom thought it was somehow infringing its copyright? Title of the video overlapping with a Viacom property, making them think it was something other than it was? Background music?
Jim has his comments turned off so I thought I’d post this here… why doesn’t he upload the video onto Google Video or BlipTV or something so that he can share it and people can see how innocuous it was for themselves?
Could it be that Viacom was trying to save us from having to watch a bunch of geeks talk about RSS and OPML? 🙂
Randy:
Entirely possible. That might have been a public service.
-JP
[…] Jim Moore has reposted, on Google Video (heh), the “offending” work that prompted the nastygram from Viacom today. It’s hard to imagine what might have prompted the take-down. As JZ asks in the comments from an earlier post, what can we surmise about the tactic in getting to 100,000 take-downs? Was some bot scanning for keywords in titles, say “Redbones”? […]
Once again big corporations with a lot of money, clout and connections have managed to push around an innocent average person. I watched the video as posted. There was nothing on it that Viacom could lay claim to under the copyright laws. Since titles are not subject to copyright, that doesn’t even count (as suggested in one of the comments).
This is another example of the overwhelming “corporatism” that we in the US have become subject to in the process of law making. The DMCA went overboard to extend copyrights to big corporations while ignoring the provision and language of the constitution regarding the “useful arts and sciences” being for the good of everyone and the prosperity of the nation rather than just for the good of the copyright owners alone. The idea that a copyright (or other intellectual property protection) should exist for a limited time period was essentially ignored and the extension of the length of time a copyright exists was done so in a manner that hurts our nation, our overall economy, and the incentives for creativity and invention.
[…] John Palfrey ? Blog Archive ? How Many Jim Moores Are Out There? Viacom’s Cease and Desist Letters … for Home Videos? Viacom sends out 100,000 cease and desist letters, including one for a completely inoccuous and geeky video shot by Jim Moore. John Palfrey looks at the possible implications for Viacom and YouTube in overreaching in trying to use DMCA to remove “copyrigh (tags: copyright video youtube berkman) […]
Nice point. If I might change the tempo for a moment, with a question:
If you own a DOMAIN NAME which a EUROPEAN UNION AGENCY is ‘using’,
uh, shoun’t there be a LICENSING FEE to the AUTHOR for PROPRIETARY IP?
Is there someone at BERKMAN who can help figure out this tangle?
Still awaiting ANY reply to my letters & calls.
Thanks-
Hey John, hook me up to sue Viacom and Youtube; they sent me the same notice and took down my non-infringing video trailer to one of my documentaries, which won a Telly Award last year. I’ve been an independent producer for 24 years and make certain I have no material that is not mine or licensed to be used in any of my productions. They wrote an article on CNET including me on Friday. Here’s the link:
http://news.com.com/Does+YouTube+have+a+control+problem/2100-1030_3-6156025.html
You can contact me at victorweb@aol.com
[…] John Palfrey has been all over the Viacom-YouTube takedown issue and the accompanying Fair Use issues. (He asks: “Will the policy for handling copyright matter, one way or another, in terms of customer adoption of competing services?”) […]
[…] JP has everything you need to know to get caught up on Viacom’s C&D’s to YouTube. TopTenSources is aggregating stories about takedown misfires, whether outright errors or overreaching copyright claims. […]
Viacom, YouTube and You…
The New York Times: Viacom Tells YouTube: Hands Off: “In a sign of the growing tension between old-line media and the new Internet behemoths, Viacom, the parent company of MTV and Comedy Central, demanded yesterday that YouTube, the video-sharing Web….
Nice…
Cool!
[…] wrote about John Palfrey’s posting about John Moore, who received a cease-and-desist letter in error from Viacom. As Palfrey notes, there are plenty […]
Nice!