Viacom Believes Fewer Than 60 Take-Down Mistakes

I’ve been e-mailing with Michael Fricklas of Viacom since I posted about Jim Moore’s home video that got caught in Viacom’s 100,000 take-down push on Friday. Mr. Fricklas wrote to me a few times during their process of assessing how many errors they made out of 100,000. Today, he wrote: “… we’re achieving an error rate of .05% – (we have under 60 errors so far)” and that “we’ll know more as users respond to communication from YouTube”. He noted also: “Wish it was zero.”

So, let’s take Viacom at its word for the moment. A few interesting questions of law pop out from here:

1) If Viacom is right 99,940 times out of 100,000. What rights do those 60 people have when they choose to push back? Just to have the file put back up? Do they have a further claim against Viacom? Or against YouTube, for that matter?

2) Mr. Fricklas asserts that “Under DMCA, I believe that YouTube needs to retain the material and repost it if an individual believes that the copyright notice was in error.” I suppose that Section 512(g) does include the presumption that YouTube (or similarly situated party) must hold on to the allegedly infringing material once taken down, since they may have to put it back up pursuant to counter-notification. But the process of what the intermediary has to do is not explicit. What happens to the analysis if YouTube has retained nothing, and the original person who posted it retained nothing but has a very strong fair use case or an outright winner on copyright grounds? Does DMCA need to say more than it does by way of a process to protect users? There’s also the question of what policy is required to handle repeat infringers, which has caused a lot of confusion on university campuses.
Some good exam questions buried here.

18 thoughts on “Viacom Believes Fewer Than 60 Take-Down Mistakes”

Regardless of whether its $1,000,000 or 1 cent, Viacom has to compensate the victims. I suspect that 60 is the amount of victims they are aware of and that the actual amount of victims is several factors higher.

Reply ↓

[…] Well, with its 100,000 DMCA takedown notices aimed at YouTube users, now it’s Viacom that is netting its share of dolphins. Among the 100,000 videos targeted for takedowns was a home movie shot in a BBQ joint, a film trailer by a documentarian, and a music video (previously here) about karaoke in Singapore. None of these contained anything owned by Viacom. For its part, Viacom has admitted to “no more than” 60 mistakes, so far. Yet each mistake impacts free speech, both of the author of the video and of the viewing public. […]

Reply ↓

[…] Among the 100,000 videos targeted for takedowns was a home movie shot in a BBQ joint, a film trailer by a documentarian, and a music video (previously here) about karaoke in Singapore. None of these contained anything owned by Viacom. For its part, Viacom has admitted to “no more than” 60 mistakes, so far. Yet each mistake impacts free speech, both of the author of the video and of the viewing public. […]

Reply ↓

Yes, Mr. Fricklas, there is a solution. Whether it is 1, 100, or 100,000 clips, your company is obligated to LOOK AT EVERY CLIP BEFORE YOU SEND OUT CRIMINAL INFRINGEMENT NOTICES, and those notices should state what parts of the clips are infringing so you can eliminate mistakes. Just because there is no good current filtering system in place now doesn’t give you the right to create your own makeshift one unless you check its accuracy BEFORE sending out legal notices.

But you didn’t do that did you? It appears you used a weak keyword search which has to be the most irresponsible way to handle a LEGAL situation. Did you hire some intern to do that? Did it take an hour?

Perhaps your company should use a keyword search on its payroll database and remove every name with “rick” in it. Then maybe you wouldn’t think that 60, or 600, or 6000 mistakes is OK.

Now, the damage has been done.

Reply ↓

[…] Viacom ha utilizado ciertos criterios de búsqueda para elegir a los 100,000 usuarios sin haber verificado previamente, sí efectivamente eran sus videos y que infringían el copyright. A la fecha se han encontrado algunos retiros infundados, además Michael Fricklas de Viacom señaló a John Palfrey que pueden existir alrededor de 60 errores dentro de las 100,000 solicitudes que se enviaron. […]

Reply ↓

[…] Among the 100,000 videos targeted for takedowns was a home movie shot in a BBQ joint, a film trailer by a documentarian, and a music video (previously here) about karaoke in Singapore. None of these contained anything owned by Viacom. Viacom has admitted to “no more than” 60 mistakes so far. […]

Reply ↓

[…] Unfortunately, when you spread that wide of a net, a lot of dolphins get caught with the tuna. Among the 100,000 videos targeted for takedowns was a home movie shot in a BBQ joint, a film trailer by a documentarian, and a music video (previously here) about karaoke in Singapore. None of these contained anything owned by Viacom. Viacom has admitted to “no more than” 60 mistakes so far. […]

Reply ↓

What’s up with comments 3,4,5,9,10,11, and 12? They’re obviously spam, but to what purpose? It’s like someone’s posting a summary of this blog to this blog. Huh??

Reply ↓

@BobPaul:

They are TrackBack from blogs referencing this blog post. Many blog software segregate these from comments somehow, but it doesn’t looks like this blog does.

Reply ↓

[…] In a series of posts at his blog since last Friday, Palfrey has sought to answer what he considers a pivotal question: How many Jim Moores are out there? 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”? […]